IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

MONICA JOHNSON, )

 )

Plaintiff, )

)

v. ) CIVIL ACTION 13-0431-WS-M

 )

MOBILE INFIRMARY MEDICAL )

CENTER, )

 )

Defendant. )

ORDER

This matter comes before the Court on defendant’s Motion for Summary Judgment (doc. 

42). The Motion has been briefed and is now ripe for disposition. Also pending is defendant’s 

Motion to Strike (doc. 63).1

I. Nature of the Action.

Plaintiff, Monica Johnson, is an African-American female and a member of the Seventh 

Day Adventist Church. Johnson brought this action against her employer, Mobile Infirmary 

Medical Center, alleging violations of various federal statutes arising from a scheduling fracas

 1 Both sides have made this Court’s task on summary judgment review more 

onerous than necessary by not adhering to relevant rules and orders. For example, defendant’s 

brief improperly features 1.5 spacing (as compared to its Motion for Summary Judgment and 

Motion to Strike, which are properly double-spaced) and microscopic footnotes. The Local 

Rules require filings to be double-spaced and to use fonts of 12-point type or larger for all text, 

including footnotes. See LR 5.1(a). Defendant has also failed to comply with the Scheduling 

Order requirement that “[i]f a party’s exhibits in support of or in opposition to a motion exceed 

50 pages in the aggregate, then that party must deliver a courtesy hard copy of those exhibits to 

the Judge’s chambers by mail or hand delivery.” (Doc. 39, ¶ 13(c).) Similarly, plaintiff’s brief 

exceeds the 30-page limit without leave of court, in violation of Local Rule 7.1(b), and omits 

page numbers as well as pinpoint citations to the portions of the record that she contends support 

her iteration of the facts. See Rule 56(c)(1)(A), Fed.R.Civ.P. (“A party asserting that a fact 

cannot be or is genuinely disputed must support the assertion by ... citing to particular parts of 

materials in the record.”) (emphasis added). In its discretion, the Court will consider the 

parties’ filings notwithstanding these and other technical defects.

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that occurred in January 2013. In Count I of the Second Amended Complaint (doc. 32), Johnson 

alleges that Mobile Infirmary scheduled her to work in a manner that conflicted with her

religious beliefs, in violation of Title VII of the Civil Rights Act of 1964, as amended. Count II 

alleges that Mobile Infirmary discriminated against Johnson based on her race, in violation of 

Title VII and 42 U.S.C. § 1981, “[b]y forcing Plaintiff to make up miss [sic] work days and not 

require [sic] the same of white employees who miss their regularly scheduled work days.” (Doc. 

32, ¶ 31.) In Count III, Johnson asserts that Mobile Infirmary violated the Family and Medical 

Leave Act, 29 U.S.C. §§ 2601 et seq. (“FMLA”), “[b]y forcing Plaintiff to work her regular shift 

when she sought time off to care for a seriously ill minor child.” (Doc. 32, ¶ 32.) The final two 

causes of action sound in theories of retaliation. Specifically, in Count IV, Johnson maintains 

that Mobile Infirmary violated the FMLA’s anti-retaliation provisions by failing to allow her to 

take leave and then taking “punitive action against her due to her complaints.” (Id., ¶ 33.) 

Finally, Count V alleges that Mobile Infirmary unlawfully retaliated against Johnson, in violation 

of Title VII and § 1981, for complaining about the way her supervisor was treating her. 

Defendant now moves for summary judgment as to all causes of action.

II. Motion to Strike.

Before proceeding any further, the Court pauses to address defendant’s Motion to Strike 

(doc. 63), and plaintiff’s Response (doc. 64) to same.

2

 On summary judgment, record facts and 

factual inferences must be construed in the light most favorable to the nonmoving party. See 

Skop v. City of Atlanta, GA, 485 F.3d 1130, 1136 (11th Cir. 2007). Thus, Johnson’s evidence is 

taken as true and all justifiable inferences are drawn in her favor. In its Motion to Strike, 

however, Mobile Infirmary requests that portions of the record (including certain facts on which 

Johnson relies) be stricken. The contours of the summary judgment record – and, hence, the 

factual backdrop against which the Rule 56 Motion is measured – cannot be discerned without 

first adjudicating the Motion to Strike. There are five discrete components to that Motion, each 

of which will be addressed in turn. The net result is that the Motion to Strike is denied.

 2 In many respects, plaintiff’s Response to the Motion to Strike – which was 

submitted after summary judgment briefing closed – reads like an unauthorized sur-reply in 

opposition to the Motion for Summary Judgment. Although such filings are disfavored, the 

Court in its discretion will accept plaintiff’s submission and will consider the arguments therein 

as they relate to summary judgment issues beyond the confines of the Motion to Strike.

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First, Mobile Infirmary objects to Johnson’s use of exhibits (including screen shots, 

policy documents, medical reports and the like) that have not been authenticated. This objection 

is overruled. Whether these exhibits are presently in admissible form is of no consequence. See

Rule 56(c)(2), Fed.R.Civ.P. (“A party may object that the material cited to support or dispute a 

fact cannot be presented in a form that would be admissible in evidence.”) (emphasis added). It 

is well settled that exhibits are properly considered for summary judgment purposes as long as

they may be reduced to admissible form at trial. See, e.g., Celotex Corp. v. Catrett, 477 U.S. 

317, 324, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (“We do not mean that the nonmoving party 

must produce evidence in a form that would be admissible at trial in order to avoid summary 

judgment.”); Jones v. UPS Ground Freight, 683 F.3d 1283, 1293-94 (11th Cir. 2012) (“a district 

court may consider a hearsay statement in passing on a motion for summary judgment if the 

statement could be reduced to admissible evidence at trial or reduced to admissible form”).3 

Mobile Infirmary does not suggest that these exhibits are incapable of being reduced to 

admissible form at trial; therefore, the “lack of authentication” argument fails.

Second, Mobile Infirmary asks that certain statements in plaintiff’s declaration attributed

to Faith Lawshe be stricken as hearsay. In particular, the Johnson Declaration recounts Lawshe’s 

purported remarks on May 31, 2013 about her husband’s medical condition, her reasons for 

visiting the nursing unit when she was off work, and the like. (Johnson Decl. (doc. 59), at 11.) 

In its Motion to Strike, Mobile Infirmary observes, “It is unclear what relevance this encounter 

has to any aspect of the case at hand.” (Doc. 63, at 5.) The Court agrees. Inclusion or exclusion 

of the portion of Johnson’s Declaration reciting Lawshe’s statements of May 31, 2013 would 

have no perceptible impact on the summary judgment analysis; therefore, the Court does not 

reach this objection. The Motion to Strike is moot as to the Lawshe statements.

Third, Mobile Infirmary interposes a hearsay objection to plaintiff’s Exhibit B, a six-line 

handwritten document purportedly prepared by Phuong Ly on January 15, 2013. (See Doc. 57, 

 3 See also Longcrier v. HL-A Co., 595 F. Supp.2d 1218, 1223 (S.D. Ala. 2008) 

(“The general rule in this Circuit is that parties’ exhibits may be considered for purposes of 

pretrial rulings so long as they can be reduced to admissible form at trial.”) (citations omitted); 

Prince Hotel, S.A. v. Blake Marine Group, 2012 WL 4711897, *1 n.5 (S.D. Ala. Oct. 2, 2012) 

(“Even unauthenticated or otherwise inadmissible evidence is properly considered on summary 

judgment so long as it can be reduced to admissible form at trial.”). 

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Exh. B.) This exhibit relates to an incident in which Ly came into work for Johnson, but was 

immediately sent home because there were already six nurses on duty. Defendant asserts that 

this exhibit and references to same in Johnson’s brief must be stricken as hearsay. However, 

Mobile Infirmary does not argue that this statement is incapable of being presented in admissible 

form at trial, and Johnson shows that it can indeed be reduced to admissible form. As such, 

Exhibit B is properly considered on summary judgment and defendant’s objection is overruled. 

See, e.g., Jones, 683 F.3d at 1293-94 (“a district court may consider a hearsay statement in 

passing on a motion for summary judgment if the statement could be reduced to admissible 

evidence at trial or reduced to admissible form”) (citation omitted); Pritchard v. Southern Co. 

Services, 92 F.3d 1130, 1135 (11th Cir. 1996) (“[i]t is true that inadmissable hearsay may 

sometimes be considered by a court when ruling on a summary judgment motion,” where such 

evidence is “reducible to admissible form at trial”).

Fourth, Mobile Infirmary’s Motion to Strike takes aim at portions of Johnson’s 

Declaration specifying the time and attendance records of Jason Thompson, Faith Lawshe and 

Diana Kennedy in painstaking detail by listing specific dates, clock-in times and notations on 

time sheets. (Johnson Dec., at 10, 12.) Mobile Infirmary insists that “there is no legitimate way 

that Johnson has knowledge of such comprehensive employment attendance records.” (Doc. 63, 

at 6.) In a supplemental declaration, however, Johnson explains this mystery and demonstrates 

her personal knowledge of this information because (i) Mobile Infirmary publicly posts work 

schedules for RNs in the unit; (ii) when a nurse comes in late or fails to report to work, 

supervisors make notations on those publicly posted schedules; (iii) Johnson examined and made 

notes from these business records on an ongoing basis to track the attendance histories of her coworkers; and (iv) Johnson also personally observed and recorded the attendance shortcomings of 

these individuals. (Johnson Decl. II (doc. 64-1), ¶¶ 5-6, 12.)

On the strength of this showing, the Court is satisfied that Johnson has demonstrated a 

basis for personal knowledge for her detailed averments about the alleged time and attendance 

violations of Thompson, Lawshe and Kennedy. Accordingly, this evidence comports with the 

Federal Rules of Civil Procedure’s mandate that a summary judgment declaration “must be made 

on personal knowledge ... and show that the affiant or declarant is competent to testify on the 

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matters stated.” Rule 56(c)(4), Fed.R.Civ.P.4 As to the portions of the Johnson Declaration 

identifying the time and attendance histories of Thompson, Lawshe and Kennedy, then, the 

Motion to Strike is denied.

Fifth, Mobile Infirmary contends that two statements in the Johnson Declaration 

concerning her supervisor, Stefanie Willis-Turner, should be stricken as “inadmissible hearsay 

and ... conclusory statements made without personal knowledge.” (Doc. 63, at 7.) In particular, 

defendant objects to the portion of the Johnson Declaration recounting conversations in which 

she told Willis-Turner that she (Johnson) could not work from Friday sundown to Saturday 

sundown because of her religious observances. Defendant also objects to the portion of the 

Johnson Declaration reflecting that Willis-Turner advised her that light duty was not available. 

Mobile Infirmary’s hearsay and personal knowledge objections to these statements are 

unfounded. What Johnson may have informed Willis-Turner about her religious observances is 

not hearsay because it would not be offered for the truth of the matter asserted, but rather to 

show that the words were spoken to Willis-Turner. And Willis-Turner’s statements appear to fit 

comfortably within the boundaries of Rule 801(d)(2)(D), Fed.R.Evid. The Motion to Strike is 

denied as to these portions of the Johnson Declaration.

III. Relevant Factual Background.5

 4 To be sure, plaintiff’s evidence invites Mobile Infirmary to assert a follow-up 

objection that Johnson’s parroting in her Declaration of data she copied from defendant’s 

business records constitutes hearsay. Had it been articulated, such an objection would not be 

fatal to consideration of this information at the summary judgment stage because (i) Johnson 

stated that she often personally observed these time and attendance violations, and (ii) any 

hearsay problem as to attendance records could be resolved at trial by introducing the business 

records or through examination of Willis-Turner or other Mobile Infirmary supervisors, such that 

(iii) defendant has not shown that the challenged information could not be reduced to admissible 

form at trial.

5 The Court is mindful of its obligation under Rule 56 to construe the record, 

including all evidence and factual inferences, in the light most favorable to the nonmoving party. 

See Skop, 485 F.3d at 1136. Thus, Johnson’s evidence is taken as true and all justifiable 

inferences are drawn in her favor. Also, federal courts cannot weigh credibility at the summary 

judgment stage. See Feliciano v. City of Miami Beach, 707 F.3d 1244, 1252 (11th Cir. 2013) 

(“Even if a district court believes that the evidence presented by one side is of doubtful veracity, 

it is not proper to grant summary judgment on the basis of credibility choices.”). Therefore, the 

Court will “make no credibility determinations or choose between conflicting testimony, but 

(Continued)

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Monica Johnson has worked for Mobile Infirmary Medical Center as a Registered Nurse 

in the Telemetry Unit since 2002. (Johnson Decl., at 1.) At the outset of her employment, 

Johnson notified Mobile Infirmary of her status as a Seventh Day Adventist and her resulting 

unavailability between the hours of sunset on Friday evenings and sunset on Saturday evenings 

in observance of her Sabbath. (Id.) By all appearances, Mobile Infirmary successfully 

accommodated Johnson’s religious beliefs for many years by not scheduling her to work during 

her Sabbath observances.

A. History of Working Relationship between Plaintiff and Supervisor.

In July 2012, Stefanie Willis-Turner became the RN Manager of the Telemetry/Oncology 

Unit, with Johnson being one of her subordinates. (Willis-Turner Aff. (doc. 42-2), ¶ 3.) At that

time, Mobile Infirmary classified Johnson as a regular part-time registered nurse, and regularly 

scheduled her to work two 12-hour shifts per week, for a total of 48 hours per two-week pay 

period. (Stembridge Aff. (doc. 42-1), ¶ 3.) In August 2012, Johnson notified Willis-Turner of 

her Seventh Day Adventist status, and explained that she could not work on Fridays after 

sundown, or on Saturdays prior to sunset. (Johnson Decl., at 2.) On multiple occasions 

thereafter, Johnson reminded Willis-Turner that she was unavailable for work on Friday 

evenings and Saturdays because of her religious observances. (Id.)

6

 Willis-Turner 

accommodated Johnson’s religion-based work restrictions for six months without incident. (Id.

at 7.)

The working relationship between Johnson and Willis-Turner soured late in 2012 when 

Willis-Turner imposed discipline for time and attendance infractions. On December 26, 2012, 

Willis-Turner issued a written warning to Johnson in a Corrective Action Report, indicating as 

follows: “Employee has failed to comply with the current time and attendance guidelines as 

 

instead accept[s] [Johnson’s] version of the facts drawing all justifiable inferences in [her] 

favor.” Burnette v. Taylor, 533 F.3d 1325, 1330 (11th Cir. 2008).

6 On summary judgment, defendant submits an Affidavit from Willis-Turner, 

wherein she disclaims knowledge of Johnson’s religious scheduling conflict until January 30, 

2013. (Willis-Turner Aff., ¶¶ 12-13.) Because the record must be viewed in the light most

favorable to the non-movant, and because plaintiff’s evidence is contrary to the Willis-Turner 

Affidavit, defendant’s evidence on this point cannot be credited for summary judgment purposes.

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established. She has a total of 5 occurrences at this time. Employee is expected to continue to 

improve and comply with current guidelines.” (Willis-Turner Aff., ¶ 3 & Exh. A.) This Report 

notes that Johnson had previously received oral warnings for violations of time and attendance 

guidelines in January 2011 and February 2009. (Id.) Just five days later, on December 31, 2012, 

Willis-Turner counseled Johnson in the presence of Mike Rauch, Nursing Director, for her 

“overall attitude and behavior” in the wake of the December 26 corrective action. (Id., ¶ 3 & 

Exh. C.) On the write-up for this counseling session, Johnson added the notations “not true” and 

“not in agreement.” (Id.)

B. Scheduling Issues During the Week of January 6-11, 2013.

Against this backdrop of what appears to have been a deteriorating work relationship 

between Johnson and Willis-Turner, Johnson’s six-year old son fell ill on Saturday, January 5, 

2013. Johnson called Willis-Turner on January 5 to report that she would be unable to work her 

scheduled shift on Sunday, January 6, and that she would take her son to the doctor. (Johnson 

Decl., at 3.) Johnson in fact appeared for work on January 6, but left early (apparently with the 

Charge Nurse’s permission) at 2:00 p.m. to attend to her sick child. (Willis-Turner Aff., ¶¶ 6-7.) 

Johnson then took her son to the American Family Care clinic in Saraland, where he was 

diagnosed with influenza, prescribed Tamiflu to take by mouth twice per day for five days, and 

cleared to return to school on Wednesday, January 9. (Johnson Decl., at 3; doc. 57, Exh. D.)7 

Johnson had been scheduled to work on Monday, January 7 and Tuesday, January 8; however, in 

light of this doctor’s report, she contacted Willis-Turner and indicated that she would miss both 

shifts. (Willis-Turner Aff., ¶ 7.) Willis-Turner adjusted the work schedule by assigning other 

nurses to fill Johnson’s January 7 and 8 shifts, and rescheduling Johnson to work those nurses’ 

shifts on Thursday, January 10 and Friday, January 11. (Id., ¶ 8.)

Upon learning of this schedule modification on January 7, Johnson notified Willis-Turner 

that she could work on Tuesday, January 8, after all, but that she was unable to work on the 

evening of Friday, January 11, because of her religious beliefs. (Johnson Decl., at 3-4.) WillisTurner refused to alter the schedule, saying that it would be inconvenient to adjust the schedule a 

 7 Johnson furnished Willis-Turner with documentation from her son’s treating 

physician, confirming both the doctor’s visit and the diagnosis. (Johnson Decl., at 5.)

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second time. (Id.)

8

 Johnson arrived for work approximately 90 minutes late on both Thursday, 

January 10 and Friday, January 11, explaining that no one else was available to take her child to 

school on those days. (Id. at 4; Willis-Turner Aff., ¶ 9.) Then, on Friday morning, Johnson 

received two telephone calls from her child’s school, advising that Johnson’s son was vomiting 

and requesting that she pick him up. (Johnson Decl., at 5.) When Johnson apprised WillisTurner of the situation and her need to take her son back to the doctor’s office because no one 

else was available to do so, Willis-Turner responded that if Johnson left, she would receive a 

final written warning and would be suspended for two shifts. (Id.; Willis-Turner Aff., ¶ 10 & 

Exh. G.) Johnson indeed left her shift at approximately 1:00 p.m. on Friday, January 11, picked 

up her son and took him to back to the Saraland clinic, where a doctor confirmed that he still had 

the flu, administered an injection of Promethazine, directed Johnson’s son to continue taking 

Tamiflu, and cleared the child to return to school on January 14. (Doc. 57, Exh. D.) Johnson 

submitted these medical records to Willis-Turner the following week. (Johnson Decl., at 5.)

In her Declaration, Johnson explains why she did not return to work the evening portion 

of her shift on January 11 after taking her son home from his doctor’s visit. (Johnson Decl., at 

9.) She did not do so because, by this time, Friday sundown was nigh or had already arrived; 

therefore, it was Johnson’s Sabbath and her religious beliefs precluded her from working. (Id.) 

Johnson’s testimony is that she would not have worked her full shift through the evening of 

Friday, January 11, even if her son had not become ill that morning, because her religious 

practices forbade her from doing so. (Id. at 8-9.)

Johnson’s next scheduled shift was on Wednesday, January 16. When she returned to 

work that day, Willis-Turner presented Johnson with a written Corrective Action Report dated 

January 14, 2013, specifying that “[e]mployee has continued to violate the time and attendance 

policy. Since last corrective action, she has further accrued 1 call in, tardies, and suspension. 

 8 Plaintiff’s evidence is that this explanation was disingenuous. One of the affected 

nurses was Phuong Ly, whose work schedule had been shifted from Friday, January 11 to 

Tuesday, January 8 in order to cover Johnson’s absence. When Ly arrived for work on January 

8, however, Willis-Turner sent her home because there were already enough nurses on duty, and 

instructed her to come back on Thursday, January 10, not Friday, January 11. (Doc. 57, Exh. B.) 

The implication from this evidence is that Willis-Turner could have easily juggled the schedule 

to place Ly back on a Friday, January 11 shift, thereby freeing up Johnson to honor her Sabbath 

observance beginning at sundown on Friday; however, Willis-Turner elected not to do so.

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This shows lack of integrity and core values.” (Willis-Turner Aff., ¶ 11 & Exh. H.) The result 

of this Report was that Johnson received a “Final Warning” along with a suspension to last two 

12-hour shifts. (Id.) Johnson signed the Corrective Action Report, but added the notation, “not 

in agreement with Stephanie’s report.” (Id.)

Johnson had submitted medical records documenting her six year-old son’s doctor’s 

visits on January 6 and January 11, as well as the flu diagnosis and accompanying notes excusing 

him from returning to school until January 14. At the time, however, Johnson did not notify 

Willis-Turner or any other Mobile Infirmary official that she wished for her absences to be 

protected as FMLA leave. (Johnson Decl., at 5; Willis-Turner Aff., ¶ 11.) Several months later, 

after Johnson raised the FMLA issue, Randy Stembridge, defendant’s Director of Employee 

Relations, met with Johnson, “encouraged her to submit additional information ... to show it was 

an FMLA qualifying situation,” and offered to reimburse her for the suspension and expunge the 

suspension from her record if she did so. (Stembridge Aff., ¶ 6.) Johnson did not avail herself of 

this opportunity because she had already submitted all medical records she had, and Mobile 

Infirmary did not specify what additional information or documentation was needed to process 

her claim for FMLA coverage. (Johnson Decl., at 14.)

C. Post-Suspension Issues as to Accommodation, Scheduling and Light Duty.

In late January 2013, Willis-Turner instituted a new policy that regular part-time 

registered nurses (such as Johnson) must work one weekend per month. (Willis-Turner Aff., ¶ 

12.) This policy was irreconcilable with Johnson’s religious requirement that she not work on 

her Sabbath. On January 29, 2013, Johnson submitted a typewritten letter to Willis-Turner and 

other Mobile Infirmary officials identifying her Seventh Day Adventist faith, explaining that it 

would violate her “deeply held, sincere religious convictions to work on the Sabbath, which 

begins at sundown Friday night and ends at sundown Saturday,” and requesting that the 

accommodation she had been granted for the last 10.5 years be continued and that she not be

scheduled to work on her Sabbath. (Id., ¶ 13 & Exh. K.)9 After a few weeks of discussions

between Johnson and Mobile Infirmary, during which time she was not assigned to work on her 

 9 Johnson avers that the January 29 letter was a direct response to Willis-Turner’s 

attempt to force her to work a full 12-hour shift on Friday, January 11, despite Johnson’s 

repeated statements to Willis-Turner that her religious beliefs forbade her from working after 

sunset on Fridays. (Johnson Decl., at 6.) The letter made no reference to that incident.

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Sabbath, Mobile Infirmary agreed to an accommodation pursuant to which Johnson “will 

complete her necessary weekend rotation(s) requirement by working additional Sunday’s [sic] in 

place of the afore mentioned [sic] hours related to her Sabbath.” (Id., ¶ 13 & Exh. N.) This 

accommodation remains in effect today. At no time since February 2013 has Johnson been 

required to work a Friday or Saturday shift. (Stembridge Aff., ¶¶ 4-5.)

After submitting the January 29 letter and obtaining the specified accommodation to her 

religious beliefs, Johnson maintains, “my work hours was cut.” (Johnson Decl., at 6.) Plaintiff 

provides no factual elaboration. The record facts concerning Johnson’s work hours prior to and 

following her January 2013 request for religious accommodations are these: As a regular parttime RN, Johnson was regularly scheduled to work two 12-hour shifts per week, or 48 hours per 

two-week pay period. (Stembridge Aff., ¶ 3.) Johnson and other part-time RNs could volunteer 

to pick up additional shifts from time to time as needed. (Willis-Turner Aff., ¶ 14.) Had 

Johnson only worked her regular 48 hours per pay period, she would accrue 1,248 hours per year 

(48 hours x 26 pay periods). In fact, however, Mobile Infirmary payroll records demonstrate that 

Johnson worked 1,680.80 hours in 2013. (Stembridge Aff., ¶ 9 & Exh. K.) By way of example, 

for the May 31, 2013 payday, Johnson was paid for 101.40 hours. (Id.) On the June 28, 2013 

payday, she was paid for 82.40 hours. (Id.) The records confirm that there was not a single 2013 

pay period in which Johnson was paid for fewer than 48 hours, except for the period ending

January 25, 2013, which would cover her two-shift suspension. Moreover, in December 2013, 

Mobile Infirmary transferred Johnson from a part-time position to a full-time position in the 

same department, after which she was regularly scheduled for at least 72 hours per pay period. 

(Stembridge Aff., ¶ 10 & Exh. L.)

In addition to alleging a reduction in work hours after the January 29 request for religious 

accommodation, Johnson contends that she “was denied light duty work following an on the job 

injury in retaliation for pushing the issue regarding [her] religious convictions.” (Johnson Decl., 

at 6.) Johnson injured her wrist in late January 2014 when she slipped on ice in the Mobile 

Infirmary parking lot. (Hybart Aff. (doc. 62, Exh. A), ¶ 2.) Johnson contends that she was off 

from work on a worker’s compensation leave of absence from March 2014 until August 2014, 

when she returned to work in a full-time capacity. (Johnson Decl., at 6.) Johnson further 

maintains that her physician released her for light duty prior to August, but that Willis-Turner 

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refused to provide light-duty assignments on the stated ground that “no such work was 

available.” (Id.)

Johnson provides no documentation in support of these “facts,” many of which are 

squarely refuted by Mobile Infirmary records. Those documents reflect that the only time 

Johnson’s medical providers released her to light-duty work was in mid-February 2014, when 

she returned to work for two days with a 20-lb. lifting restriction before leaving because she was 

in too much pain. (Hybert Aff., ¶¶ 3, 5, 7; Willis-Turner Aff. II (doc. 62, Exh. C), ¶ 2.) After 

that failed attempt to return to work with a lifting restriction, Johnson presented no 

documentation or information to Willis-Turner seeking to return to work with or without 

restrictions until late May 2014. (Willis-Turner Aff. II, ¶ 2.) Johnson’s treating physician 

discharged and released her to “[f]ull duty at work” effective May 27, 2014. (Hybert Aff., ¶ 3 & 

Exh. A.)10 On June 24, 2014, an independent medical examination (performed at Johnson’s 

request) concluded that Johnson had no work restrictions from the January injury. (Id., ¶ 4 & 

Exh. C.)11 At that time, Mobile Infirmary placed Johnson back on the schedule in full-duty 

status. (Id., ¶ 4.) Johnson remains employed as an RN in defendant’s Telemetry unit today. 

(Johnson Decl. II (doc. 64-1), ¶ 1.)

IV. Analysis.

A. Summary Judgment Standard.

Summary judgment should be granted only “if the movant shows that there is no genuine 

dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Rule 

 10 The May 27 report prepared by Dr. Bose is noteworthy in several other respects. 

First, the report documents Johnson’s statement that “she has not improved at all” since the 

January 2014 accident. (Id.) Second, Dr. Bose indicates that Johnson had attended only 4 of 9 

scheduled physical therapy visits, with the physical therapist documenting “multiple 

inconsistencies in the patient’s complaints and effort.” (Id.) Third, Dr. Bose stated his 

conclusion that Johnson was being “non-cooperative and trying to exaggerate her weakness” 

upon reexamination, and that he “cannot find any evidence to substantiate the patients [sic] 

complaints of pain.” (Id.) Fourth, Dr. Bose observed that his relationship with Johnson had 

become “adversarial” and that he was going to discharge her from the clinic. (Id.)

11 The report from the independent medical examination prepared by Dr. Saiter was 

markedly similar to Dr. Bose’s May 27 report, inasmuch as Dr. Saiter observed a “lack of 

objective findings, marked inconsistencies on physical examination and excessive subjective 

complaints in the absence of objective physical findings.” (Id.)

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56(a), Fed.R.Civ.P. The party seeking summary judgment bears “the initial burden to show the 

district court, by reference to materials on file, that there are no genuine issues of material fact 

that should be decided at trial.” Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir. 1991). 

Once the moving party has satisfied its responsibility, the burden shifts to the non-movant to 

show the existence of a genuine issue of material fact. Id. “If the nonmoving party fails to make 

'a sufficient showing on an essential element of her case with respect to which she has the burden 

of proof,' the moving party is entitled to summary judgment.” Id. (quoting Celotex Corp. v. 

Catrett, 477 U.S. 317 (1986)) (footnote omitted). “In reviewing whether the nonmoving party 

has met its burden, the court must stop short of weighing the evidence and making credibility 

determinations of the truth of the matter. Instead, the evidence of the non-movant is to be 

believed, and all justifiable inferences are to be drawn in his favor.” Tipton v. Bergrohr GMBHSiegen, 965 F.2d 994, 999 (11th Cir. 1992) (internal citations and quotations omitted). 

“Summary judgment is justified only for those cases devoid of any need for factual 

determinations.” Offshore Aviation v. Transcon Lines, Inc., 831 F.2d 1013, 1016 (11th Cir. 1987) 

(citation omitted).

The Eleventh Circuit has expressly rejected the notion that summary judgment should 

seldom be used in employment discrimination cases because they involve issues of motivation 

and intent. See Wilson v. B/E Aerospace, Inc., 376 F.3d 1079 (11th Cir. 2004). Rather, “the 

summary judgment rule applies in job discrimination cases just as in other cases. No thumb is to 

be placed on either side of the scale.” Id. at 1086 (citation omitted); see also Williamson v. 

Clarke County Dep’t of Human Resources, 834 F. Supp.2d 1310, 1318 (S.D. Ala. 2011) 

(recognizing and applying rule that summary judgment standard is applied equally in 

employment discrimination cases as in other kinds of federal actions).

B. Burden-Shifting McDonnell Douglas Framework.

The parties are in agreement that, as to all claims except the FMLA interference cause of 

action, Johnson must make a showing of circumstantial evidence that satisfies the test set forth in 

McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973).12 

 12 Although plaintiff’s claims are nominally brought under Title VII, 42 U.S.C. § 

1981, and FMLA’s anti-retaliation provision, both sides properly recognize that the applicable 

legal standard is identical for each (doc. 43, at 7, 10-11, 13, 20; doc. 56, at 15, 20-21, 30). See, 

e.g., Brown v. Alabama Dep’t of Transp., 597 F.3d 1160, 1174 n.6 (11th Cir. 2010) (“The 

(Continued)

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Under this familiar burden-shifting analysis, plaintiff is required to make out a prima facie case 

of unlawful discrimination or retaliation. If she does so, that showing “creates a rebuttable 

presumption that the employer acted illegally.” Underwood v. Perry County Com’n, 431 F.3d 

788, 794 (11th Cir. 2005). At that point, “the burden shifts to the employer to articulate some 

legitimate, nondiscriminatory reason for the adverse employment action. ... If the employer does 

this, the burden shifts back to the plaintiff to show that the employer’s stated reason was a 

pretext for discrimination.” Crawford v. Carroll, 529 F.3d 961, 976 (11th Cir. 2008) (citations 

and internal quotation marks omitted); see also Holifield v. Reno, 115 F.3d 1555, 1566 (11th Cir. 

1997) (outlining similar procedure for Title VII retaliation claims). A plaintiff may establish 

pretext “either directly by persuading the court that a discriminatory reason more likely 

motivated the employer or indirectly by showing that the employer’s proffered explanation is 

unworthy of credence.” Brooks v. County Com'n of Jefferson County, Ala., 446 F.3d 1160, 1163 

(11th Cir. 2006) (quotation omitted). “The ultimate burden of persuading the trier of fact that the 

defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff.” 

Springer v. Convergys Customer Management Group Inc., 509 F.3d 1344, 1347 (11th Cir. 2007).

C. Religious Discrimination Claim (Count I).

In Count I of the Second Amended Complaint, Johnson alleges that Mobile Infirmary 

violated Title VII of the Civil Rights Act of 1964 by failing to accommodate her religious beliefs 

and “forcing Plaintiff to work on her Sabbath under penalty of suspension.” (Doc. 32, ¶ 30.) By 

its terms, Title VII requires an employer to accommodate “all aspects of religious observance 

and practice, as well as belief, unless an employer demonstrates that he is unable to reasonably 

accommodate ... [an] employee’s religious observance or practice without undue hardship ....” 

 

analysis under [§ 1981] claims mirrors that under Title VII.”); Brungart v. BellSouth 

Telecommunications, Inc., 231 F.3d 791 (11th Cir. 2000) (“When evaluating a claim of retaliation 

under the FMLA, in the absence of direct evidence of discrimination on the part of the employer, 

we apply the burden-shifting framework established by the Supreme Court in McDonnell 

Douglas ... for evaluating Title VII retaliatory discharge claims.”); Brown v. School Bd. of 

Orange County, Florida, 459 Fed.Appx. 817, 819 (11th Cir. Feb. 28, 2012) (“Title VII and § 

1981 have the same requirements of proof and utilize the same analytical framework.”). The 

parties have not argued that the analysis differs for any of the various species of claims that 

Johnson is asserting, save her FMLA interference cause of action, which will be addressed 

separately because that claim does not require proof of intentional discrimination.

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42 U.S.C. § 2000e(j); see also Beadle v. Hillsborough County Sheriff’s Dep’t, 29 F.3d 589, 593 

(11th Cir. 1994) (“we recognize an employer’s duty to reasonably accommodate the religious 

practices of its employee”). Thus, an employer has a “statutory obligation to make reasonable 

accommodation for the religious observances of its employees, short of incurring an undue 

hardship.” Walden v. Centers for Disease Control and Prevention, 669 F.3d 1277, 1293 (11th

Cir. 2012) (citation and internal quotation marks omitted). Defendant’s Rule 56 Motion as to 

Count I challenges the sufficiency of Johnson’s prima facie showing.

To make out a prima facie case of failure to accommodate religious beliefs, a plaintiff 

must demonstrate that (1) she “held a bona fide religious belief that conflicted with an 

employment requirement;” (2) she informed the employer of that belief; and (3) she was 

disciplined “for failing to comply with the conflicting employment requirement.” Dixon v. The 

Hallmark Companies, Inc., 627 F.3d 849, 855 (11th Cir. 2010); see also Walden, 669 F.3d at 

1293 (similar). As to the first element, there is no dispute that Johnson’s bona fide religious 

beliefs precluded her from working after sundown on Friday evenings, and that this religious 

observance conflicted with Mobile Infirmary’s requirement that she work a 12-hour shift on 

Friday, January 11, 2013, which would have extended well past sunset.

With regard to the second prong, Mobile Infirmary maintains that Johnson never 

informed Willis-Turner of the religious conflict with her January 11 work schedule. The record 

in the light most favorable to plaintiff shows otherwise. Indeed, plaintiff’s evidence (which must 

be accepted as true on summary judgment) shows that Johnson repeatedly informed WillisTurner of her religious status and concomitant inability to work between Friday sunset and 

Saturday sunset. According to plaintiff’s evidence, Johnson first notified Willis-Turner of her 

need for accommodation in this regard back in August 2012, shortly after Willis-Turner became 

her supervisor, and reiterated her need for such accommodation on multiple occasions thereafter, 

including on January 7, specifically with respect to the January 11 shift; however, Willis-Turner 

refused to adjust the schedule. Again, that evidence is credited for purposes of the Rule 56 

analysis, and plainly establishes the second element of Johnson’s prima facie case.

The third element of the prima facie case is where Johnson’s claim of failure to provide 

religious accommodation falls apart. That element requires Johnson to show that she “was 

disciplined for failing to comply with the conflicting employment requirement.” Dixon v. Palm 

Beach County Parks and Recreation Dept., 343 Fed.Appx. 500, 502 (11th Cir. Aug. 31, 2009). 

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Plaintiff’s evidence is that she reported to work on the morning of Friday, January 11, for her 

scheduled shift. At approximately 12:30 p.m. that day, Johnson notified Willis-Turner that she 

had to leave work to tale her sick child to the doctor. Johnson did not tell Willis-Turner that she 

was leaving to honor her Sabbath observance, nor would such an announcement have been 

accurate, given that sunset was still several hours away. In response, Willis-Turner notified 

Johnson that, in plaintiff’s words, “if I left my shift I would receive a final written warning and a 

suspension for two shifts.” (Johnson Decl., at 5; see also Willis Turner Aff., ¶ 10 & Exh. G.) 

Johnson left at approximately 12:55 p.m., for which she received a final written warning and 

suspension. These facts – which are taken in the late most favorable to Johnson – unequivocally 

show that Mobile Infirmary disciplined her for leaving work early in the afternoon to pick up a 

sick child from school, not for refusing to work after sundown that night because of her religious 

beliefs. No reasonable inference may be drawn from these facts that Johnson was disciplined for 

failing to comply with an employment requirement that conflicted with her bona fide religious 

beliefs; therefore, no prima facie case of failure to provide religious accommodation has been 

made. Mobile Infirmary is entitled to dismissal of Count I.

13

D. Race Discrimination Claim (Count II).

In Count II of her Second Amended Complaint, Johnson alleges that Mobile Infirmary 

discriminated against her on the basis of her race (black) in violation of Title VII and § 1981, by 

“forcing Plaintiff to make up miss[ed] work days and not requir[ing] the same of white 

employees who miss their regularly scheduled work days.” (Doc. 32, ¶ 31.) Once again, Mobile 

 13 In so ruling, the Court rejects Johnson’s argument that mere serendipity prevented 

her religious conflict from coming to a head during her scheduled January 11 shift. Plaintiff 

explains that, while she reported to work that morning, she “could not and would not stay for 

Friday evening due to religious concerns,” but “[i]t just so happened that the school called” about 

her ailing son before the religious conflict ever materialized. (Doc. 56, at 19.) Even if Johnson 

is correct that she would have walked off the job before sunset to honor her religious beliefs, the 

undisputed fact is that it did not happen because she had already left work earlier that day for 

other reasons. Plaintiff’s own evidence confirms that Mobile Infirmary disciplined Johnson for 

leaving work at approximately 1:00 p.m. on January 11 to pick up a sick child, not because she 

hypothetically would have left work several hours later because of her religion and not because 

she failed to return to work later in the day. The point is simple: Plaintiff has not drawn any 

factual nexus or causal inference between the discipline she received for leaving work early on 

January 11 and her Seventh Day Adventist religious observances. As such, she has not made out 

a prima facie case of failure to accommodate her religious beliefs.

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Infirmary focuses its summary judgment arguments on Johnson’s purported inability to establish 

a prima facie case as to Count II.

The parties concur that Johnson’s prima facie showing as to Count II must demonstrate 

each of the following: (i) she belongs to a protected class; (ii) she was qualified to do the job; 

(iii) she was subjected to an adverse employment action; and (iv) the employer treated similarly 

situated employees outside her protected class more favorably. (See doc. 43, at 11; doc. 56, at 

21.)14 Mobile Infirmary seizes on the “similarly situated comparator” prong, reasoning that 

Johnson has failed to “identify a proper comparator,” as needed to demonstrate that defendant 

“treated similarly situated employees outside her protected class more favorably.” (Doc. 43, at 

11.) In the work rules / discipline context, the Eleventh Circuit has adopted a demanding test 

that the comparator be “similarly situated to the plaintiff in all relevant respects” and that the 

“quantity and quality of the comparator’s misconduct must be nearly identical.” Stone & 

Webster Const., Inc. v. U.S. Dep’t of Labor, 684 F.3d 1127, 1135 (11th Cir. 2012) (citations 

omitted). “We ask whether the comparator is involved in the same or similar conduct as the 

plaintiff yet disciplined in a different way.” Id.15

Johnson identifies three Caucasian RNs at Mobile Infirmary whom she claims engaged in 

similar violations of the company’s time and attendance policies, yet were either not disciplined 

as severely as Johnson was, or not forced to make up their time as Johnson was. The first 

alleged comparator, Diana Kennedy, is properly disqualified because irrefutable evidence 

submitted by defendant establishes that she is African-American.16 It is, of course, an irreducible 

 14 Eleventh Circuit authority supports this formulation of the relevant standard. See, 

e.g., Crawford, 529 F.3d at 970 (“To make out a prima facie case of racial discrimination a 

plaintiff must show (1) she belongs to a protected class; (2) she was qualified to do the job; (3) 

she was subjected to adverse employment action; and (4) her employer treated similarly situated 

employees outside her class more favorably.”); McCann v. Tillman, 526 F.3d 1370, 1373 (11th

Cir. 2008) (similar).

15 The purpose of this stringent “nearly identical” requirement is “to prevent courts 

from second-guessing employers’ reasonable decisions and confusing apples with oranges.” 

Silvera v. Orange County School Bd., 244 F.3d 1253, 1259 (11th Cir. 2001) (citations omitted).

16 To be sure, Johnson’s narrative identifies Kennedy as Caucasian. (Johnson Decl., 

at 9.) Not only does Willis-Turner describe Kennedy as African-American, but she also submits 

a photograph of Kennedy from Mobile Infirmary’s intranet site that unequivocally reveals her to 

be African-American. (Willis-Turner Aff. II, ¶ 5 & Exh. B.) On this record, no reasonable jury 

(Continued)

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requirement of the Title VII analysis that similarly situated comparators must be outside the 

plaintiff’s protected class. See, e.g., Wilson, 376 F.3d at 1087 (“A plaintiff establishes a prima 

facie case of disparate treatment by showing that she was a qualified member of a protected class 

and was subjected to an adverse employment action in contrast with similarly situated 

employees outside the protected class.”) (emphasis added); Horn v. United Parcel Services, Inc., 

433 Fed.Appx. 788, (11th Cir. July 7, 2011) (“The plaintiff must also point to someone similarly 

situated (but outside the protected class) who disputed a violation of the rule and who was, in 

fact, treated better.”) (emphasis added and citation omitted). Kennedy is not; therefore, she is an

inappropriate comparator.

The second purported comparator identified by Johnson is a Caucasian RN named Jason 

Thompson. It is undisputed that Thompson had amassed multiple violations (known as 

“occurrences” in the parlance of defendant’s policy) of the Mobile Infirmary time and attendance 

rules,17 for which Willis-Turner issued him a written warning via Corrective Action Report dated 

January 3, 2013. (Willis-Turner Aff., ¶ 3 & Exh. B.) The timing and content of Thompson’s 

warning shows that Mobile Infirmary treated him similarly to Johnson for what were, at that 

point, similar violations. Recall that Johnson received a written warning from Willis-Turner for 

time and attendance violations on December 26, 2012.

18 Johnson’s warning was for a total of 

 

could believe Johnson’s obvious misstatement that Kennedy is Caucasian; therefore, plaintiff’s 

account as to that “fact” is discarded for summary judgment purposes. See, e.g., Scott v. Harris, 

550 U.S. 372, 380, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007) (“When opposing parties tell two 

different stories, one of which is blatantly contradicted by the record, so that no reasonable jury 

could believe it, a court should not adopt that version of the facts for purposes of ruling on a 

motion for summary judgment.”); Morton v. Kirkwood, 707 F.3d 1276, 1284 (11th Cir. 2013) 

(“where an accurate video recording completely and clearly contradicts a party’s testimony, that 

testimony becomes incredible” and is not credited on summary judgment because it is 

“inherently incredible and could not support reasonable inferences sufficient to create an issue of 

fact”) (citations omitted).

17 Such rules were embodied in Mobile Infirmary’s “Absence, Tardiness and Time 

Keeping Policy” (doc. 57, Exh. C). In relevant part, this policy classified each unscheduled 

absence, tardiness, or early departure as an “occurrence,” and specified that certain disciplinary 

action should be taken for certain frequencies of occurrences within a rolling 12-month period.

18 Willis-Turner explains the timing of these Corrective Action Reports for both 

Johnson and Thompson by noting that she reviewed her subordinates’ time and attendance 

(Continued)

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five occurrences, while Thompson’s was for a total of seven. Up to that point, certainly, all 

appearances were that (a) Thompson was similarly situated to Johnson, but (b) Willis-Turner had 

treated both of them the same way.

19

Viewing the evidence in the light most favorable to plaintiff, Thompson’s and Johnson’s 

paths diverged thereafter. As to Johnson, the summary judgment record reflects that, within 16 

days after she received her December 2012 written warning, Johnson accrued no fewer than six 

additional violations of the time and attendance policy (i.e., she left work early on January 6, 

indicated that she could not report to work on January 7 and 8, arrived late for work on January 

10 and 11, and left work early on January 11). By contrast, Thompson did not accumulate a 

similar concentration of new violations of the time and attendance policy so soon after receiving 

his January 2013 Corrective Action Report. Plaintiff’s evidence is that Thompson called in on 

January 7, 2013 and clocked in late on February 6, 2013, but that he had no other violations until 

April 24, 2013. (Johnson Decl., at 9-10.) Indeed, Willis-Turner observed that Thompson’s 

unscheduled absence attendance issues improved after his January 2013 warning. (Willis-Turner 

Aff. II, ¶ 4.) Johnson’s did not. Simply put, barely two weeks after Johnson received a written 

warning for time and attendance problems, she had accrued six more occurrences. Meanwhile, 

some three months after Thompson received a written warning for time and attendance 

 

records in late December 2012 and early January 2013, then meted out discipline as appropriate. 

(Willis-Turner Aff., ¶ 3.)

19 Plaintiff disputes this conclusion by stressing the difference between five and 

seven attendance violations, and the fact that Thompson had received a written warning in 

August 2012, while Johnson had received only a pair of oral warnings in 2009 and 2011. (See

doc. 64, at 7.) As for the number of violations, Mobile Infirmary policy provided that four 

unscheduled absences / tardies within a rolling 12-month period were grounds for a verbal 

counseling, while six were grounds for a written warning. (Doc. 57, Exh. C at 3.) Presumably, 

plaintiff’s argument is that she was below six occurrences while Thompson was above it, yet 

they both received written warnings in December 2012 / January 2013. The flaw in plaintiff’s 

reasoning lies in her failure to account for Mobile Infirmary’s policy statement that “[p]atterns of 

absenteeism or tardiness will be addressed through the guidelines of the Performance and 

Corrective Action policy.” (Id.) Plaintiff has not shown it to be a discriminatory or 

unreasonable application of that policy for Mobile Infirmary to treat Johnson’s five occurrences 

plus two prior disciplinary events the same as Thompson’s seven occurrences plus one prior 

disciplinary event. Certainly, no inference of unlawful race discrimination is raised by this set of 

circumstances.

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violations, he had accrued only two more occurrences. These record facts confirm that Johnson 

and Thompson are not “nearly identical” in the quality and quantity of misconduct; therefore, 

Thompson is not a valid comparator for purposes of plaintiff’s prima facie case.

20

Johnson’s third comparator is a white nurse named Faith Lawshe. With regard to 

Lawshe, plaintiff’s disparate treatment argument is different than it was for Thompson. Johnson 

 20 In arguing otherwise, plaintiff focuses on Thompson’s attendance record 

throughout 2013, insisting that Mobile Infirmary’s failure to discipline Thompson for subsequent 

occurrences in April, May and November 2013 violates Mobile Infirmary policy calling for 

suspension or termination after 10 occurrences. (Doc. 57, Exh. C, at 3.) This argument is 

unavailing for at least three independent reasons. First, plaintiff overlooks policy language 

reflecting that occurrences are counted “in a rolling 12 month period.” (Id.) For purposes of 

Mobile Infirmary’s time and attendance policy, the absolute number of occurrences is irrelevant; 

instead, the critical metric is the number of occurrences in the last 12 months. Plaintiff makes no 

showing that Thompson accrued 10 or more occurrences in a 12-month period. (In Paragraph 14 

of her Second Declaration, Johnson makes certain unsupported assumptions in arguing that all of 

Thompson’s occurrences took place after July 2012; however, her reasoning is opaque and 

speculative, and appears devoid of either supporting facts or personal knowledge.) Second, 

plaintiff ignores the fact that Mobile Infirmary did impose further discipline on Thompson for 

time and attendance issues later in 2013, in the form of a written warning dated June 6, 2013. 

(Willis-Turner Aff. II, ¶ 4 & Exh. A.) After the June 2013 warning, Thompson’s attendance 

again improved, rendering further discipline unnecessary. (Id.) Third, even if plaintiff had 

shown that Thompson had 10 occurrences in a 12-month period, she identifies no facts or 

circumstances raising an inference of racially disparate treatment. Mobile Infirmary says that 

Johnson was suspended in January 2013 because she incurred a barrage of time and attendance 

violations in rapid succession almost immediately after receiving a written warning. No such 

pattern existed with respect to Thompson. (Willis-Turner Aff. II, ¶ 4 (“[d]uring the time period 

he was under my supervision, [Thompson] did not display the concentrated series of time and 

attendance violations as exhibited by Ms. Johnson between” December 26, 2012 and January 11, 

2013).) While plaintiff may subjectively deem Thompson’s conduct to be equally egregious to 

her own, the fact is that the quantity and quality of their misconduct was nowhere close to 

identical. Johnson cannot substitute her own business judgment for Mobile Infirmary’s, nor can 

she reach a jury on a race discrimination theory by showing that Mobile Infirmary treated 

differently situated employees differently. See Smith v. Lockheed-Martin Corp., 644 F.3d 1321, 

1326 n.17 (11th Cir. 2011) (where preferentially treated individual is not similarly situated to 

plaintiff in all relevant respects, “the different application of workplace rules does not constitute 

illegal discrimination”) (citation omitted). That is all she has accomplished here with respect to 

purported comparator Thompson. And even if Johnson had established that Mobile Infirmary 

deviated from its time and attendance policy in dealing with Thompson, that fact alone would not 

compel denial of defendant’s summary judgment motion. See Mitchell v. USBI Co., 186 F.3d 

1352, 1355-56 (11th Cir. 1999) (“Even assuming that USBI did deviate from its policy, this 

deviation does not raise an inference of discrimination. Standing alone, deviation from a 

company policy does not demonstrate discriminatory animus.”).

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does not assert that Mobile Infirmary disciplined Lawshe differently for similar misconduct. 

Instead, Johnson claims disparate treatment vis a vis Lawshe as to Mobile Infirmary’s scheduling 

policy, which provides, “If an employee calls in sick or absent for a scheduled rotation, the 

employee will be rescheduled for a make-up rotation or week-end shift.” (Willis-Turner Aff., ¶ 5 

& Exh. D.) Similarly, Mobile Infirmary’s daily staffing policy provides that “Weekend Call In’s 

[sic] should be made up on or a shift that is deemed appropriate by the unit manager.” (WillisTurner Aff., ¶ 5 & Exh. E.) Plaintiff’s evidence is that Lawshe missed work for various reasons 

(such as family illness) in 2013, but was not required to make up those days. (Johnson Decl., at 

10-11.) By contrast, Johnson was required to make up her absences when she called in on 

January 7 and 8, as Willis-Turner mandated that she make up those missed shifts on January 10 

and 11. Johnson attributes the difference in treatment to unlawful race discrimination.

Lawshe is not a similarly situated comparator to Johnson for purposes of Mobile 

Infirmary’s shift make-up policies.21 The reason is simple: Defendant’s unrebutted evidence is 

that, while Mobile Infirmary’s scheduling and make-up policies were generally applicable to

nurses, Mobile Infirmary exempted Lawshe from those requirements because she “suffered a 

work injury in August 2012 and was working light duty under doctor’s restrictions of hours and 

duties until August 2014,” such that she was in a “special situation” with regard to scheduling. 

(Willis-Turner Aff., ¶ 5.) Plaintiff does not explain (much less present evidence to establish) 

how Lawshe could have been similarly situated to Johnson in all relevant respects as of early 

 21 Even if Lawshe were a valid comparator (which she is not) as to application of 

Mobile Infirmary’s make-up policies, Johnson’s prima facie case would still fail because being 

required to make up a missed shift cannot reasonably be viewed as an “adverse employment 

action” that might be actionable under Title VII. See Burlington Northern & Santa Fe Ry. Co. v. 

White, 548 U.S. 53, 67-68, 126 S.Ct. 2405, 165 L.Ed.2d 345 (2006) (actionable employer 

conduct must be “significant” rather than “trivial,” and more is required than “petty slights or 

minor annoyances that often take place at work and that all employees experience”); Davis v. 

Town of Lake Park Fla., 245 F.3d 1232, 1239 (11th Cir. 2001) (“[T]o prove adverse employment 

action in a [discrimination] case ..., an employee must show a serious and material change in 

the terms, conditions, or privileges of employment.”); Jackson v. Hall County Government, 518 

Fed.Appx. 771, 773 (11th Cir. May 8, 2013) (concluding that “shift assignments were not 

materially adverse employment actions and, therefore, not a basis for a discrimination or 

retaliation claim,” such that plaintiff’s discrimination claims “based on his shift assignments fail 

as a matter of law”); Foster v. Thomas County, Ga., 927 F. Supp.2d 1350, 1357 (M.D. Ga. 2013) 

(concluding that plaintiff’s assignment to night shift for four months was not an “adverse 

employment action” for purposes of a Title VII prima facie case).

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2013 for purposes of the shift make-up policy, when Mobile Infirmary had expressly excused 

Lawshe from that policy because of medical restrictions on her hours and duties. Plaintiff may

well disagree with Mobile Infirmary’s decision to exempt Lawshe from that policy for medical 

reasons.

22 Nonetheless, the fact remains that Johnson and Lawshe were not similarly situated in 

all relevant respects, such that Lawshe cannot be a valid comparator with regard to Johnson’s 

claim that Mobile Infirmary discriminated against Johnson because of race by requiring her to 

make up shifts for which she had called in on January 7 and 8, 2013.23

In short, Johnson has failed to meet her burden of establishing a prima facie case of 

unlawful race discrimination by Mobile Infirmary with regard to enforcement of time and 

attendance policies, and the making up of missed shifts. Accordingly, defendant’s Motion for 

Summary Judgment is due to be granted as to Count II.

 22 Of course, an employee cannot succeed on a discrimination case by “simply 

quarreling with the wisdom of” an employer’s decisions. Chapman v. AI Transport, 229 F.3d 

1012, 1030 (11th Cir. 2000). After all, “[f]ederal courts do not sit as a super-personnel 

department that reexamines an entity’s business decisions.” Id. (citation and internal quotation 

marks omitted). They do not concern themselves with “how medieval a firm’s practices” or 

“how mistaken the firm’s managers” might be. Id.; see also Alvarez v. Royal Atlantic 

Developers, Inc., 610 F.3d 1253, 1266 (11th Cir. 2010) (“it is not our role to second-guess the 

wisdom of an employer’s business decisions – indeed the wisdom of them is irrelevant”); Damon 

v. Fleming Supermarkets of Florida, Inc., 196 F.3d 1354, 1361 (11th Cir. 1999) (“We are not in 

the business of adjudging whether employment decisions are prudent or fair.”).

23 Instead of sticking to her original claim in Count II (as pleaded in the Second 

Amended Complaint) that Mobile Infirmary discriminated against her “[b]y forcing Plaintiff to 

make up miss [sic] work days and not require [sic] the same of white employees who miss their 

regularly scheduled work days” (doc. 32, ¶ 31), Johnson devotes portions of her summary 

judgment briefing to arguing that Mobile Infirmary discriminated against her on the basis of race 

by not offering her light duty when it did so for white employees such as Lawshe. (See doc. 56, 

at 25; doc. 59, at 11; doc. 64, at 3.) It is improper for a plaintiff to attempt such a de facto

amendment to her pleading via summary judgment brief. See, e.g., GeorgiaCarry.Org, Inc. v. 

Georgia, 687 F.3d 1244, 1258 n.27 (11th Cir. 2012) (“It is well-settled in this circuit that a 

plaintiff may not amend the complaint through argument at the summary judgment phase of 

proceedings.”); Gilmour v. Gates, McDonald and Co., 382 F.3d 1312, 1315 (11th Cir. 2004) (“A 

plaintiff may not amend her complaint through argument in a brief opposing summary 

judgment.”). Even if this argument were properly made (which it is not), it would not enable 

Johnson to withstand the Rule 56 Motion as to Count II for the reasons specified in Section 

IV.G., infra, as to plaintiff’s argument that Mobile Infirmary’s failure to provide her light duty 

work was unlawful retaliation. The Court will not reproduce that analysis here.

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E. Family and Medical Leave Act Interference Claim (Count III).

In Count III, Johnson charges Mobile Infirmary with unlawfully interfering with her right 

to take time off from work to care for a seriously ill child, in violation of the Family and Medical 

Leave Act. Defendant moves for summary judgment on Count III for the stated reasons of (i) 

“Johnson’s inability to establish that her son suffered from an FMLA-qualifying event,” and (ii) 

“Johnson failed to apply for the FMLA despite her knowledge of the process.” (Doc. 43, at 20.)

The FMLA makes it illegal “for any employer to interfere with, restrain, or deny the 

exercise of or the attempt to exercise, any right provided under this subchapter.” 29 U.S.C. § 

2615(a)(1). Thus, “[a] Plaintiff claiming interference must demonstrate by a preponderance of 

the evidence that she was denied a benefit to which she was entitled.” Pereda v. Brookdale 

Senior Living Communities, Inc., 666 F.3d 1269, 1274 (11th Cir. 2012) (citation omitted); see 

also Hurlbert v. St. Mary’s Health Care System, Inc., 439 F.3d 1286, 1293 (11th Cir. 2006) (“To 

establish an interference claim, an employee need only demonstrate by a preponderance of the 

evidence that he was entitled to the benefit denied.”) (citation and internal quotation marks 

omitted). “The employee need not allege that his employer intended to deny the benefit – the 

employer’s motives are irrelevant.” Hurlbert, 439 F.3d at 1293 (citation and internal quotation 

marks omitted).

Under the FMLA, eligible employees are entitled to up to 12 workweeks of unpaid leave 

during a 12-month period “[i]n order to care for the spouse, or a son, daughter, or parent, of the 

employee, if such spouse, son, daughter, or parent has a serious health condition.” 29 U.S.C. § 

2612(a)(1)(C). A “serious health condition” means “an illness, injury, impairment, or physical 

or mental condition that involves ... continuing treatment by a health care provider.” 29 U.S.C. 

§ 2611(11)(B). The phrase “continuing treatment by a health care provider” is defined in the 

accompanying regulations as meaning “[a] period of incapacity of more than three consecutive, 

full calendar days, and any subsequent treatment or period of incapacity relating to the same 

condition, that also involves ... [t]reatment two or more times, within 30 days of the first day of 

incapacity, ... by a health care provider ... or [t]reatment by a health care provider on at least 

one occasion, which results in a regimen of continuing treatment under the supervision of the 

health care provider.” 29 C.F.R. § 825.102; see also 29 C.F.R. § 825.115(a)(1)-(2). Thus, to 

qualify as a “serious health condition” involving “continuing treatment by a health care 

provider,” the plaintiff must show (i) a period of incapacity of more than three full, consecutive 

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days, and (ii) either two or more events of in-person treatment by a health care provider within 

30 days of the first day of incapacity, or one or more events of in-person treatment by a health 

care provider with a regimen of continuing treatment.

Defendant’s first argument is that Count III fails as a matter of law because Johnson has 

not met her burden of showing that her son had a “serious health condition” as defined in the 

FMLA. The Court disagrees. Plaintiff’s evidence is that her son fell ill on January 5, 2013; that 

she took him to a health care provider on January 6, 2013; that the health care provider issued a 

diagnosis of influenza, prescribed a regimen of continuing treatment (i.e., prescription of Tamiflu

to be administered for five days) and ordered her son to remain out of school until January 9, 

2013; that her son became ill at school on January 11, 2013; that Johnson took him back to a 

medical care provider that day; and that the treating physician concluded that Johnson’s son was 

still suffering from the flu, provided further treatment, directed that the Tamiflu regimen 

continue, and cleared the child to return to school on January 14, 2013. Viewed in the light most 

favorable to plaintiff, this evidence demonstrates that Johnson’s son endured a period of 

incapacity of more than three consecutive, full calendar days; that he received in-person 

treatment from a doctor on at least two occasions within 30 days of the onset of the incapacity; 

and that he subsequently had another period of incapacity relating to the same condition. These 

facts support a reasonable inference that Johnson’s son indeed suffered from a “serious health 

condition” (i.e., an illness that involves continuing treatment by a health care provider) that 

qualified Johnson for FMLA leave to care for him during the week of January 6 to 11.

24

 24 Mobile Infirmary’s position is that there is no evidence that Johnson’s son’s 

incapacitation lasted more than 72 consecutive hours. (See doc. 43, at 18-19.) Plaintiff’s 

showing, however, is that her son became incapacitated by illness on January 5, that she took 

him to see a doctor on January 6, that the doctor kept him out of school until January 9 (i.e., 

more than 72 hours after he first became incapacitated on January 5), that the subsequent episode 

in which Johnson’s son became ill at school on January 11 was a continuation of the serious 

health condition for which he had previously been treated, that he received additional in-person 

medical treatment on January 11, and that the doctor kept him out of school until January 14. 

Taking this evidence in the light most favorable to Johnson, a reasonable fact finder could easily 

conclude that the prerequisites for an FMLA-covered “serious health condition” (i.e., three full 

consecutive days of incapacity, plus two or more events of in-person treatment) are present here, 

and that Johnson’s early departure from work on January 11 was also covered because her son 

had incurred a subsequent period of incapacity relating to the same condition.

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Defendant’s second argument for seeking summary judgment as to Count III is that 

Johnson “never mentioned FMLA coverage” and provided inadequate notice to Mobile 

Infirmary “that she needed to leave to address a qualifying leave.” (Doc. 43, at 19, doc. 62, at 

12.) The argument, apparently, is that Johnson’s FMLA claims fail because she did not use the 

right buzzwords in requesting time off from work. Applicable regulations specify that “[a]n 

employee giving notice of the need for FMLA leave does not need to expressly assert rights 

under the Act or even mention the FMLA to meet his or her obligation to provide notice.” 29 

C.F.R. § 825.301(b). That said, an employee “must explain the reasons for the needed leave so 

as to allow the employer to determine whether the leave qualifies under the Act.” 29 C.F.R. § 

825.301(b). What is necessary is that the employee “provide sufficient information for an 

employer to reasonably determine whether the FMLA may apply to the leave request.” 29 

C.F.R. § 825.303(b). For unforeseeable leave, “an employee must provide notice to the 

employer as soon as practicable under the facts and circumstances of the particular case.” 29 

C.F.R. § 825.303(a).

Viewing the record in the light most favorable to plaintiff, Johnson did provide sufficient 

information to allow Mobile Infirmary to determine whether the leave qualified under the 

FMLA. Johnson shows that she called her supervisor on January 5 and notified her that 

Johnson’s son was ill and that she would need to take him to the doctor the next day. Johnson’s 

evidence is that she provided Mobile Infirmary with medical documentation for the January 6 

doctor’s visit, confirming the diagnosis of influenza, the ongoing treatment regimen of 

medication, and the doctor’s orders that Johnson’s son not return to school until January 9. 

Johnson further presents evidence that she notified her supervisor on January 11 that Johnson’s 

son had become violently ill at school, and that she needed to leave work to take him back to the 

doctor’s office. Plaintiff also provided Mobile Infirmary with medical documentation for the 

ensuing January 11 doctor’s visit, confirming that this episode was a continuation of her son’s 

influenza, that treatment was to continue with Tamiflu, and that Johnson’s son was not cleared to 

return to school until January 14. Taken in the aggregate, Johnson’s oral communications to her 

supervisor and her two sets of medical documentation submitted to Mobile Infirmary provided 

adequate information to determine whether FMLA protections applied to Johnson’s time away 

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from work between January 6 and January 11. As such, summary judgment will not be entered 

in Mobile Infirmary’s favor as to Count III on a theory of deficient notice.25

F. Family and Medical Leave Act Retaliation Claim (Count IV).

Count IV of the Amended Complaint is a claim for FMLA retaliation, predicated on 

Johnson’s allegation that Mobile Infirmary took “punitive action against her due to her 

complaints.” (Doc. 32, ¶ 33.) By its terms, the FMLA makes it “unlawful for any employer to 

discharge or in any other manner discriminate against any individual for opposing any practice 

made unlawful” under the FMLA. 29 U.S.C. § 2615(a)(2). The gravamen of Johnson’s FMLA 

retaliation claim is that her “employer discriminated against her because she engaged in activity 

protected by the Act.” Pivac v. Component Services & Logistics, Inc., 570 Fed.Appx. 899, 902 

 25 In so concluding, the Court has considered and rejected Mobile Infirmary’s three 

counterarguments. First, Mobile Infirmary disputes whether Johnson ever provided it with the 

January 6 medical records. Plaintiff’s Declaration states that she did, which is dispositive of the 

issue for summary judgment purposes. Of course, defendant remains free to argue the point at 

trial via countervailing testimony, and the Court expresses no opinion as to whether notice would 

or would not have been sufficient for FMLA purposes in the absence of the January 6 records. 

Second, Mobile Infirmary tries to shift its FMLA burden to Johnson via statements such as 

“Plaintiff had applied for FMLA several times previously in her employment with MIMC, so she 

was aware of the procedure ... In fact, Plaintiff never mentioned FMLA coverage ....” (Doc. 62, 

at 12.) As noted supra, the regulations specify that a plaintiff in Johnson’s position need not use 

magic words or talismanic phrases, much less directly invoke FMLA rights, in order to trigger an 

employer’s coverage obligation. Stated differently, defendant identifies no legal principle under 

which it makes any difference that Johnson had previously applied for FMLA for other 

conditions, but that she never mentioned the FMLA in relation to her son’s illness. Either way, 

Mobile Infirmary’s legal duty under the FMLA appears to be the same. Again, defendant has 

made no legal showing otherwise. Third, defendant points to the statement of its Director of 

Employee Relations, Randy Stembridge, who avers that after Johnson filed her EEOC charge in 

May 2013, raising the FMLA issue, Stembridge invited her to submit “additional information” to 

show that her absences were for an FMLA-qualifying reason, but that Johnson submitted nothing 

else. (Stembridge Aff., ¶ 6.) Again, Johnson’s evidence is that she had already provided Mobile 

Infirmary with all the medical documentation she had pertaining to both the January 6 and 

January 11 doctor’s visits. (Johnson Decl., at 13-14.) Defendant does not explain why it 

believed that information to be inadequate. Moreover, Johnson’s evidence is that Mobile 

Infirmary never told her what additional information it needed in order to process her FMLA 

leave, but instead Stembridge simply issued a cryptic solicitation for “additional information” 

without specifying what was missing or why Mobile Infirmary refused to credit her leave under 

the FMLA based on the materials she had already furnished. (Id.) In short, Mobile Infirmary’s 

arguments for dismissal of Count III are unpersuasive at the summary judgment stage, and do not 

alter or undermine the analysis set forth supra.

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(11th Cir. July 1, 2014). “[T]o succeed on a retaliation claim, an employee must demonstrate that 

his employer intentionally discriminated against [her] in the form of an adverse employment 

action for having exercised an FMLA right.” Strickland v. Water Works and Sewer Bd. of City of 

Birmingham, 239 F.3d 1199, 1207 (11th Cir. 2001). “When a plaintiff asserts a claim of 

retaliation under the FMLA, in the absence of direct evidence of the employer’s intent, we apply 

the same burden-shifting framework established by the Supreme Court in McDonnell Douglas.” 

Id. Defendant seeks summary judgment on Count IV on the grounds that plaintiff cannot 

establish a prima facie showing.

To state a prima facie case for FMLA retaliation, a plaintiff must show that: “(1) she 

engaged in a statutorily protected activity; (2) she suffered an adverse employment decision; and 

(3) the decision was [causally] related to a protected activity.” Pereda, 666 F.3d at 1275 

(citations omitted). On summary judgment, plaintiff specifies that “[t]he adverse action Johnson 

complains of occurred on January 15, 2013, when she was suspended for her alleged 

unscheduled absence on January 11, 2013.” (Doc. 56, at 31.) An obvious question is what 

FMLA-protected activity Johnson purports to have engaged in prior to January 15, 2013. Again, 

Count IV alleges that Mobile Infirmary took “punitive action against her due to her complaints.” 

(Doc. 32, ¶ 33.) What FMLA-related “complaints” did Johnson make prior to January 15? By 

her own admission, “[t]he thought never crossed [Johnson’s] mind that [she] was eligible for 

FMLA” when she called in to work on January 6 and left work early on January 11. (Johnson 

Decl., at 5.) If Johnson never gave a thought to the FMLA and never asked her employer for 

FMLA leave in January 2013, then how can Mobile Infirmary have intentionally discriminated 

against her for requesting FMLA leave (which she did not do) in January 2013? Plaintiff does 

not say. Logic and common sense dictate that if a plaintiff neither invoked the FMLA nor 

engaged in FMLA-related complaints prior to an adverse employment action, such adverse 

action cannot have been motivated by discriminatory animus against the plaintiff for attempting 

to secure FMLA protections. See Strickland, 239 F.3d at 1207-08 (dismissing FMLA retaliation 

claim where “nothing in Strickland’s affidavits or the other materials before the court would 

permit a jury to find that [defendant] had notice that Strickland was invoking the protection of 

the FMLA when he left work that day” and “[a] decision maker cannot have been motivated to 

retaliate by something unknown to him”) (citation omitted).

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Stated differently, because Johnson never told Mobile Infirmary in January 2013 that she 

wanted FMLA leave, Mobile Infirmary could not have intentionally discriminated against her in 

January 2013 for making such a request.26 Nothing in the summary judgment record supports an 

inference that Mobile Infirmary knew Johnson was invoking FMLA rights in January 2013; 

therefore, Mobile Infirmary could not have intentionally retaliated against her for engaging in 

protected activity that neither it nor Johnson knew was happening. Furthermore, the record in 

the light most favorable to plaintiff reflects that Mobile Infirmary suspended Johnson for 

violations of its time and attendance policy, not for requesting FMLA-qualifying leave. There 

are no record facts from which a reasonable fact finder could conclude that Mobile Infirmary’s 

stated reasons for suspending Johnson for two shifts in January 2015 (i.e., numerous violations 

of the time and attendance policy in close temporal proximity) were pretextual, and that the real 

reason for the disciplinary action was Johnson’s attempt to assert rights protected under the 

FMLA.27 For aught the record shows, Mobile Infirmary would have taken similar disciplinary 

action against any employee with Johnson’s record of highly concentrated absenteeism, tardies, 

and early departures from work following closely on the heels of prior attendance-related 

 26 Again, the Second Amended Complaint frames Johnson’s FMLA retaliation claim 

as being predicated on allegations that Mobile Infirmary took “punitive action against her due to 

her complaints.” (Doc. 32, ¶ 33.) The trouble is that Johnson has come forward with no 

evidence that she engaged in FMLA-related complaints prior to the alleged “punitive action” 

(i.e., her January 15 suspension). To the extent that plaintiff may be attempting to refashion 

Count IV on the fly in the course of summary judgment briefing, such efforts are improper. See

footnote 23, supra.

27 To be clear, the Court is not making a legal conclusion that Mobile Infirmary was 

entitled to count Johnson’s potentially FMLA-qualifying absences in imposing discipline against 

her in January 2015. If those absences were protected, then that fact would go to Johnson’s 

FMLA interference claim (Count III), not her FMLA retaliation claim (Count IV). Again, 

FMLA retaliation claims require intentional retaliatory animus on the part of an employer 

because the plaintiff attempted to assert FMLA rights. Plaintiff has offered no evidence that 

Mobile Infirmary was “out to get her” for invoking FMLA rights, or that it had any idea she was 

attempting to exercise such FMLA rights at the time it disciplined her. Such knowledge and 

intent is irrelevant to Count III; however, it lies at the core of Count IV. See Strickland, 239 F.3d 

at 1208 (“[T]o state a claim that his employer has interfered with a substantive FMLA right, a 

plaintiff need only demonstrate that he was entitled to but denied the right. He does not have to 

allege that his employer intended to deny the right; the employer’s motives are irrelevant.”). The 

paucity of evidence of knowledge or intent is fatal to the Count IV retaliation claim.

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discipline, even if those occurrences were totally unrelated to the FMLA. Therefore, plaintiff’s 

FMLA retaliation claim fails as a matter of law.

In the absence of any evidence that Johnson invoked FMLA rights or engaged in FMLArelated complaints prior to the January 15, 2013 adverse action, much less any facts supporting 

an inference that Mobile Infirmary’s discipline of Johnson amounted to intentional 

discrimination against her for engaging in such protected activity, Defendant’s Motion for 

Summary Judgment is granted as to Count IV.28

G. Title VII Retaliation Claim (Count V).

Finally, in Count V, Johnson maintains that Mobile Infirmary retaliated against her in 

violation of Title VII and § 1981 “due to her complaints to management about the manner in 

which she was treated by her immediate supervisor.” (Doc. 32, ¶ 34.) This claim is also 

governed by the McDonnell Douglas burden-shifting framework.

To establish a prima facie case of retaliation under Title VII, Johnson must show that “(1) 

[s]he engaged in a statutorily protected activity; (2) [s]he suffered an adverse employment 

action; and (3) [s]he established a causal link between the protected activity and the adverse 

action.” Bryant v. Jones, 575 F.3d 1281, 1307-08 (11th Cir. 2009); see also Butler v. Alabama 

Dep’t of Transp., 536 F.3d 1209, 1212-13 (11th Cir. 2008) (“To establish a claim of retaliation 

under Title VII or section 1981, a plaintiff must prove that he engaged in statutorily protected 

activity, he suffered a materially adverse action, and there was some causal relation between the 

two events.”) (citation omitted).

Plaintiff’s summary judgment brief omits any legal discussion of Count V; therefore, it is 

unclear how she contends record facts suffice to meet her prima facie burden.29 From the 

 28 Curiously, plaintiff appears to concede this point in her summary judgment brief, 

the penultimate sentence of which reads as follows: “In essence, the facts wholly fail to support 

the allegations in Johnson’s Complaint that she suffered punitive action due to her efforts to 

attend to the serious medical needs of her son.” (Doc. 56, at 32.)

29 Johnson’s failure to respond to the Motion for Summary Judgment as it relates to 

Count V is at her peril. To be sure, “the district court cannot base the entry of summary 

judgment on the mere fact that the motion was unopposed, ... but must ensure that the motion 

itself is supported by evidentiary materials.” United States v. One Piece of Real Property 

Located at 5800 SW 74th Ave., Miami, Fla., 363 F.3d 1099, 1101 (11th Cir. 2004). It is also true, 

however, that “district courts cannot concoct or resurrect arguments neither made nor advanced 

by the parties.” Fils v. City of Aventura, 647 F.3d 1272, 1284 (11th Cir. 2011); see also 

(Continued)

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allegations of the Second Amended Complaint, Johnson contends that her statutorily protected 

activity consists of “her complaints to management about the manner in which she was being 

treated by her immediate supervisor.” (Doc. 32, ¶ 34.) A generous reading of her summary 

judgment brief suggests that Johnson is relying on her letter to Willis-Turner and other Mobile 

Infirmary officials dated January 29, 2013 and recounting her need for religious accommodation. 

Indeed, plaintiff contends that the January 29 letter “was directly related to the attempt to force 

her to work on Friday, January 11,” and that subsequent adverse treatment was “in retaliation for 

pushing the issue regarding her religious convictions.” (Doc. 56, at 8-9.) The Court therefore 

assumes that the January 29 letter is the protected activity on which Count V rests.

With regard to the “adverse employment action” prong of her prima facie case, Johnson

states that “her work hours was [sic] cut and she was denied light duty work following an on the 

job injury.” (Doc. 56, at 9.) With regard to work hours, however, there is simply no evidence in 

the record to support plaintiff’s allegation. At the time Johnson wrote the January 29 letter, her 

position was part-time RN. She was regularly scheduled to work two 12-hour shifts per week, 

for a total of 48 hours per two-week pay period. Uncontroverted record evidence confirms that 

Johnson was paid for at least 48 hours per pay period, and often far more, during the months 

following her January 29 letter, reaching levels of 101.40 hours for the May 31, 2013 pay period 

and 76.70 hours for the June 14, 2013 pay period, for example. (Stembridge Aff., ¶ 9 & Exh. K.) 

By the end of the year, Mobile Infirmary had transferred Johnson to a full-time RN job in which 

she was regularly scheduled to work 72 hours per pay period. (Id., ¶ 10 & Exh. L.) In short, 

Mobile Infirmary’s business records demonstrate that Johnson was consistently assigned to 

work, and was paid for, at least 48 hours per pay period after submitting her January 29 letter. 

As such, the record does not support a reasonable inference that Johnson received a cut in work 

 

Resolution Trust Corp. v. Dunmar Corp., 43 F.3d 587, 599 (11th Cir. 1995) (“There is no burden 

upon the district court to distill every potential argument that could be made based on the 

materials before it on summary judgment. ... Rather, the onus is upon the parties to formulate 

arguments; grounds alleged in the complaint but not relied upon in summary judgment are 

deemed abandoned.”).

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hours after complaining about Willis-Turner’s failure to accommodate her religious beliefs as to 

weekend scheduling.

30

The other adverse employment action that Johnson maintains was retaliatory is that she 

“was denied light duty work following an on the job injury.” (Johnson Decl., at 6.) The 

immediate problem with this contention relates to timing. By plaintiff’s admission, her injury 

occurred in January 2014, and she was released to light duty sometime later. (Id.) Thus, the 

alleged denial of light duty happened more than one year after the protected activity cited by 

Johnson (i.e., the letter of January 29, 2013). Such a vast temporal gap is insufficient, by itself, 

to establish the causation element of a prima facie case of retaliation. See, e.g., Clark County 

School District v. Breeden, 532 U.S. 268, 273, 121 S.Ct. 1508, 149 L.Ed.2d 509 (2001) (“The 

cases that accept mere temporal proximity between an employer’s knowledge of protected 

activity and an adverse employment action as sufficient evidence of causality to establish a 

prima facie case uniformly hold that the temporal proximity must be very close.”) (citations and 

internal quotation marks omitted); Thomas v. Cooper Lighting, Inc., 506 F.3d 1361, 1364 (11th

Cir. 2007) (while burden of causation can be met by showing close temporal proximity, “[a] 

 30 To be sure, the Declaration of Monica Johnson states, without elaboration or 

explanation, as follows: “After receiving a letter from me and one from my Church, an 

accommodation was worked out, but my work hours was cut.” (Johnson Decl., at 6.) Of course, 

a nonmovant’s evidence is taken as true on summary judgment; however, there are limits to this 

principle. See, e.g., Leigh v. Warner Bros., Inc., 212 F.3d 1210, 1217 (11th Cir. 2000) 

(“conclusory allegations without specific supporting facts have no probative value”) (citation 

omitted); Evers v. General Motors Corp., 770 F.2d 984, 986 (11th Cir. 1985) (“Bald conclusions 

... do not create a genuine issue of material fact.”). Significantly, a plaintiff’s testimony is 

properly discounted on summary judgment if “it is blatantly contradicted by the record.” 

Feliciano v. City of Miami Beach, 707 F.3d 1244, 1253 (11th Cir. 2013). Plaintiff’s work hours 

are a matter of empirical fact, recorded in defendant’s business records. There has been no 

allegation or suggestion by Johnson that Mobile Infirmary’s records of her hours worked are 

inaccurate. Those records conclusively establish that Johnson’s work hours remained at a 

minimum of 48 hours per pay period (and often much higher) in the months following her 

January 29 protected activity, culminating in a transfer in late 2013 to a job in which Johnson 

was regularly scheduled to work a minimum of 72 hours per pay period. Plaintiff’s unadorned, 

conclusory statement “my hours was cut” is directly refuted by unchallenged business records. 

Eleventh Circuit precedent does not allow Johnson to create a genuine issue of material fact by 

virtue of a bald, conclusory statement that is blatantly contradicted by the record. In short, on 

this record, no reasonable jury could conclude that Mobile Infirmary reduced Johnson’s hours in 

the wake of her January 29 letter requesting religious accommodation.

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three to four month disparity between the statutorily protected expression and the adverse 

employment action is not enough”). Adverse action taken more than a year after the fact 

suggests, by itself, no causation at all. Plaintiff identifies no other evidence or argument for 

satisfying her prima facie burden of showing a causal relation between Johnson’s letter of 

January 29, 2013 requesting a religious accommodation and the alleged denial of light duty 

sometime after January 2014.31

There is also a more fundamental problem with Johnson’s attempts to construct a Title 

VII retaliation claim from the alleged denial of light duty. Uncontroverted record evidence 

shows that the only time following her January 2014 injury (a wrist injury sustained when 

Johnson slipped on ice in defendant’s parking lot) when Johnson ever asked Mobile Infirmary to 

accommodate her medical restrictions was in February 2014, at which time her doctor released 

her to work with a lifting restriction of 20 pounds. (Hybart Aff., ¶ 3; Willis-Turner Aff. II, ¶ 2.) 

It is undisputed that Mobile Infirmary accommodated that restriction, and returned Johnson to 

work; however, after two days, Johnson left work complaining of pain and did not attempt to 

return until being cleared for full duty by an independent medical examination on June 24, 2014, 

at which time Mobile Infirmary promptly restored her to full duty. (Hybart Aff., ¶¶ 3-4; Willis 

Turner Aff. II, ¶ 2.) Johnson submits no evidence that (i) she was ever again cleared by her 

treating physician for light-duty work after February 2014, (ii) she ever notified Mobile 

 31 Perhaps Johnson might argue (although she has not) that the requisite causal link 

can be established by comparing her situation to that of comparator Faith Lawshe (who had not 

made complaints of failure to accommodate religious beliefs). Plaintiff’s evidence is that Mobile 

Infirmary provided light-duty work to Lawshe. (Johnson Decl., at 6.) Lawshe injured her ankle 

in September 2012 and was returned to work by her physician with specific restrictions that 

Mobile Infirmary accommodated for some period of time. (Hybart Aff., ¶ 8.) Where plaintiff’s 

reliance on Lawshe as a comparator breaks down is that Johnson presents no evidence that (i) she 

ever told Mobile Infirmary after February 2014 that she had been cleared for light duty, (ii) 

Mobile Infirmary could have accommodated whatever restrictions her treating physicians 

imposed at that time, or (iii) Mobile Infirmary refused to do so. As such, plaintiff has not shown 

that she was similarly situated to Lawshe (in terms of physical condition, medical release status, 

or requested accommodations), such that the difference in treatment might raise a retaliatory 

inference.

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Infirmary of such clearance or provided documentation of same, or (iii) Mobile Infirmary could 

have accommodated the specific light-duty restrictions (whatever they might have been).

32

The bottom line is this: With respect to Count V (Title VII retaliation), all plaintiff has 

said is that Mobile Infirmary cut her hours and denied her light duty in retaliation for her January 

2013 letter requesting religious accommodation. There is no evidence that Johnson’s hours were 

ever cut; to the contrary, payroll records confirm that Johnson consistently worked and was paid 

for at least (and often far more) than the 48 hours she was regularly scheduled to work each pay 

period, and Mobile Infirmary transferred her a position greatly increasing her scheduled work 

hours later in 2013. There is no evidence that Mobile Infirmary ever denied a request by 

Johnson to return to work with medical restrictions under circumstances supporting a reasonable 

inference of retaliation. Even if Johnson had presented evidence (which she has not) that Mobile 

Infirmary denied a proper light-duty request from her that it could reasonably have 

accommodated, such an event would have happened more than one year after the alleged 

protected activity, with no causal link other than Johnson’s say-so. That is simply not good 

enough. Given the dearth of legal argument that Johnson has advanced as to Count V, the Court 

cannot and will not fill in the gaps for her. Instead, the Court concludes that Johnson has not 

made out a prima facie case of Title VII / Section 1981 retaliation, nor has she otherwise come 

forward with record facts giving rise to a reasonable inference that Mobile Infirmary retaliated 

against her for requesting a religious accommodation. Summary judgment is properly granted

as to Count V.

 32 In her Declaration, Johnson says that “my physician had released my [sic] for 

light duty well before August, but Willis-Turner refused to offer I [sic] light duty employment.” 

(Johnson Decl., at 6.) However, Johnson does not allege that she ever informed Mobile 

Infirmary of the light-duty release condition, does not indicate what her work restrictions were, 

and does not identify any facts or circumstances raising an inference that Mobile Infirmary could 

have accommodated her specific restrictions but did not. She does not present any supporting 

medical documentation. She does not identify time frame. By all appearances, Johnson is 

referencing the February 2014 release to work with 20-lb. lifting restriction. Yet Johnson does 

not dispute Mobile Infirmary’s evidence that Johnson was in fact allowed to return to work with 

that restriction, but left two days later because of pain, after which her doctors never cleared her 

again until May 2014. Nothing in these undisputed facts or circumstances raises an inference of 

retaliatory denial of light duty.

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V. Conclusion.

For all of the foregoing reasons, it is ordered as follows:

1. Defendant’s Motion to Strike (doc. 63) is denied in its entirety, except that it is 

moot with regard to the objection concerning statements attributed to Faith 

Lawshe on May 30, 2013;

2. Defendant’s Motion for Summary Judgment (doc. 42) is granted in part, and 

denied in part;

3. The Motion for Summary Judgment is granted as to Counts I, II, IV and V, and 

all such causes of action are dismissed with prejudice on the ground that there 

are no genuine issues of material fact and defendant is entitled to entry of 

judgment in its favor as a matter of law;

4. The Motion for Summary Judgment is denied as to Count III (FMLA 

interference); and

5. This action remains set for Final Pretrial Conference on April 14, 2015 at 2:00 

p.m., with jury selection to follow on May 5, 2015. To allow sufficient time to 

digest and apply this Order, the parties’ deadline for filing their Joint Pretrial 

Document is extended to Friday, April 10, 2015.

DONE and ORDERED this 6th day of April, 2015.

s/ WILLIAM H. STEELE 

CHIEF UNITED STATES DISTRICT JUDGE

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