IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

SHARON WILLIAMSON, )

)

)

)

)

)

)

)

)

)

Plaintiff,

vs. CIVIL ACTION NO. 14-0552-CG-C

BALL HEALTHCARE 

SERVICES, INC.,

Defendant.

MEMORANDUM OPINION AND ORDER

This matter is before the Court on Plaintiff’s motion for partial summary 

judgment (Doc. 62), Defendant’s opposition thereto (Doc. 68), Plaintiff’s reply (Doc. 

71), Plaintiff’s motion to strike (Doc. 69), and Defendant’s response to the motion to 

strike (Doc. 73). For reasons that will be explained below, the Court finds that

Plaintiff’s motion to strike and motion for summary judgment both are due to be 

denied.

FACTS

This case arises from Plaintiff’s termination from the Defendant Company,

Ball Healthcare Services, Inc., on September 3, 2013. (Doc. 1, ¶ 9). The Complaint 

alleges that Plaintiff was diagnosed with Rheumatoid Arthritis in May 2013 and 

that she is a qualified individual under the Americans with Disabilities Act, Title 42 

U.S.C. § 12101 et seq., (“ADA”). Plaintiff claims the Defendant discriminated 

against her on the basis of her disability in violation of the ADA. She seeks lost 

wages, lost benefits, punitive and/or nominal damages, attorney’s fees and costs, an 

Case 1:14-cv-00552-CG-C Document 85 Filed 08/11/16 Page 1 of 25
2

injunction and a declaratory judgment. (Doc. 1). In its Amended Answer (Doc. 42), 

Defendant raises the affirmative defense of after-acquired evidence, asserting that 

it discovered evidence on August 12, 2015, that Plaintiff intentionally provided 

misleading, incomplete and false information as part of the application process for 

employment with the Defendant Company. Defendant asserts that if it had 

discovered the evidence before hiring Plaintiff, it would have refused to hire 

Plaintiff and, if discovered after she was hired, it would have terminated her 

employment. As such, Defendant contends that Plaintiff is barred from obtaining 

injunctive relief, reinstatement to her employment with Defendant Company, the 

recovery of front pay or employment benefits and compensatory damages after 

August 14, 2015, the date that Administrator Mary Kay Polys received and 

reviewed the evidence and made the decision that Defendant Company would not 

have hired or would have terminated Plaintiff’s employment immediately if it had 

been discovered.

Plaintiff was previously employed at an assisted living facility called The 

Blake at Malbis, LLC (“The Blake”) as the Director of Wellness beginning on or 

about July 5, 2010. (Doc. 64-4, p. 2; Doc. 68-3, ¶ 2). Plaintiff contends that she 

worked under a verbal agreement with the owner that she would work for one year 

at which time they would readdress issues of salary and whether she would remain 

employed there. (Doc. 64-2, pp. 3-4). However, the COO and co-owner of The Blake, 

Glenn Barclay, avers that Plaintiff was an at-will employee and that they had no 

written or verbal employment contract with Plaintiff. (Doc. 68-3, ¶ 2).

Case 1:14-cv-00552-CG-C Document 85 Filed 08/11/16 Page 2 of 25
3

On September 20, 2010, the Alabama Department of Public Health (“ADPH”) 

conducted a pre-license survey of The Blake and based on the initial survey the 

ADPH denied The Blake a license to operate. (Doc. 68-3, ¶ 3). The Blake 

subsequently corrected the alleged deficiencies and obtained a license as a specialty 

care assisted living facility with Plaintiff as the Director of Wellness. (Doc. 68-3, ¶ 

3). The ADPH pre-license survey cited a number of alleged deficiencies, including 

some directly related to Plaintiff’s performance of her job duties as the Director of 

Wellness. (Doc. 68-3, ¶ 4). The ADPH initiated a complaint against Plaintiff’s 

nursing license with the Alabama Board of Nursing based on the survey findings

and the Alabama Board of Nursing notified Plaintiff and The Blake of the 

investigation. ((Doc. 64-3, p. 19; Doc. 68-3, ¶ 4). 

On May 19, 2011, the ADPH conducted a second survey of The Blake. (Doc. 

68-3, ¶ 5). Again, deficiencies were cited relating to Plaintiff’s area of responsibility,

including the failure to perform comprehensive assessments on residents with 

significant health status changes. (Doc. 68-3, ¶ 5). Again, Plaintiff and The Blake 

were notified of a complaint and investigation against Plaintiff’s nursing license. 

(Doc. 64-3, p. 20; Doc. 68-3, ¶ 5). To avoid the possibility of losing its license, The 

Blake entered into a Consent Agreement with the ADPH, dated June 24, 2011, 

under which The Blake relinquished the management and operation of the facilities 

to ClearPoint Solutions, LLC. (Doc. 68-3, ¶6). Under the Management Agreement, 

ClearPoint Solutions assumed full authority and control in the operations of The 

Blake facilities, including hiring and terminating staff. (Doc. 68-3, ¶ 6).

Case 1:14-cv-00552-CG-C Document 85 Filed 08/11/16 Page 3 of 25
4

Shortly before June 20, 2011, Mr. Barclay advised Plaintiff that it would no 

longer be responsible for the management of the facilities and that her employment 

would terminate as a result. (Doc. 68-3, ¶ 8). Plaintiff gave Mr. Barclay a memo 

stating that she had been a valued employee, she “may never find another job as 

Director of Wellness again due to the investigations” and that she would “submit a 

resignation letter with the guarantee of three months’ severance pay, PTO (Paid 

time off, and the attorney to continue to represent [her] at no cost in matters 

arriving [sic] before the Alabama Board of Nursing that have arisen or may arise 

during [her] employment at The Blake at Malbis.” (Doc. 64-3, p. 21; Doc. 68-3, ¶ 8). 

Plaintiff reportedly also told Mr. Barclay that a voluntary resignation would assist 

her in seeking alternate employment. (Doc. 68-3, ¶ 9). The Blake agreed to 

Plaintiff’s proposal and Mr. Barclay signed a copy of Plaintiff’s memo. (Doc. 68-3, ¶

9). That same day, June 20, 2011, Plaintiff provided The Blake with her written 

resignation. (Doc. 68-3, ¶ 9). Plaintiff’s personnel forms indicate that she was 

eligible for re-hire “with COO approval” and Mr. Barclay confirms that if Plaintiff 

had applied for re-hire, he would make the determination at that time whether to 

approve her re-hire. (Doc. 68-3, ¶ 10). The Alabama Board of Nursing notified 

Plaintiff that she was required to notify them of any nursing employment, 

application for nursing employment or acceptance of nursing employment but the 

Alabama Board of Nursing did not expressly instruct her to provide notice of the 

pending investigations to potential employers. (Doc. 64-1, pp. 61-62; Doc. 64-2, pp. 

9-10). 

Case 1:14-cv-00552-CG-C Document 85 Filed 08/11/16 Page 4 of 25
5

Plaintiff accepted the position of Assistant Director of Nursing at the 

Defendant’s Robertsdale facility on November 2, 2011. (Doc. 64-1, p. 92; Doc. 64-3, 

pp. 11-12). At the time Plaintiff was hired, Sharon Prince-Moore was the 

Defendant’s Vice President of Special Services, Mary Kay Polys was the Defendant’s 

Administrator, and Sandy Daigle was the Defendant’s Director of Nursing at the 

Robertsdale Healthcare Center. (Doc. 64-1, pp. 4-5; Doc. 64-4 p. 3; Doc. 64-5, pp. 3-

4). Moore was provided Plaintiff’s resume via a staffing company and Plaintiff was 

selected and interviewed by Moore. (Doc. 64-4, pp. 5-6). Moore testified that she 

always asks about a candidate’s regulatory history because they want to know if the 

candidate’s lack of structure or administrative capabilities created issues or did 

they “just happen.” (Doc. 64-4, pp. 11-12). Plaintiff answered that it was common 

knowledge that The Blake had regulatory issues and stated that she had inherited 

some or there were “challenges” when she arrived at the facility. (Doc. 64-4, p. 12). 

The Plaintiff shared some things that she felt she had done to improve upon those 

challenges. (Doc. 64-4, p. 12). Plaintiff told Moore that there had been a difficult 

survey during her time there, but that everything was clear at this point or had 

cleared before she left and ended her contract. (Doc. 64-4, p. 12). Plaintiff then had 

a clinical interview, after which Moore followed up with the staffing company to 

notify them of their requirements and referred Plaintiff to the Robertsdale 

Administrator, Mary Kay Polys for an interview. (Doc. 64-4, pp. 7-9; Doc. 64-1, pp. 

35-36). Moore informed Polys of Plaintiff’s prior employment with The Blake and 

relayed what Plaintiff had told her about the regulatory issues at The Blake. (Doc. 

Case 1:14-cv-00552-CG-C Document 85 Filed 08/11/16 Page 5 of 25
6

64-4, pp. 10-11). 

Plaintiff had a lunch interview with Polys and Moore during which Plaintiff’s 

employment history was discussed, with the majority of the discussion focusing on 

the issues Plaintiff encountered while working at The Blake. (Doc. 64-4, pp. 15-17). 

Plaintiff was asked about why she left The Blake and she shared that The Blake 

had been a challenge and that it was not long-term care and she wanted to get back 

into long-term care. (Doc. 64-4, pp. 16-17). They talked about assessments and 

Plaintiff told them essentially what she had already told Moore at their prior 

meeting. (Doc. 64-4, p. 17). Moore and Polys did not ask Plaintiff about her 

licensure status, because that information is on their application and they check 

online with the Alabama Board of Nursing registry. (Doc. 64-4, p. 18; Doc. 64-1, p. 

10-11). The website does not show pending matters, only final determinations. 

(Doc. 64-1, p. 54). At the time of her hire, Plaintiff’s nursing license was in good 

standing and had not been disciplined. (Doc. 64-1, pp. 53, 100). A third-partyfacilitated background check was provided to Moore and Polys and contained no 

information that resulted in a rescinding of the job offer (Doc. 64-1 pp. 46-48, 93-

101; Doc. 64-4, p. 22). Polys made the final decision to hire Plaintiff as the 

Assistant Director of Nursing. (Doc. 68-4, ¶ 2).

Plaintiff began her employment with Defendant on November 14, 2011. (Doc. 

64-1, pp. 49-50). Plaintiff told the Defendant’s Director of Nursing, Sandy Daigle, 

that she was afraid she would lose her license working at The Blake and that she 

did not think it was run correctly. (Doc. 64-5, pp. 5-6). Plaintiff did not tell Daigle of 

Case 1:14-cv-00552-CG-C Document 85 Filed 08/11/16 Page 6 of 25
7

any pending litigation going on with The Blake or Plaintiff. (Doc. 64-5, p. 6).

Plaintiff did not actually complete her Application for Employment with the 

Defendant until November 14, 2011, after she began work there. (Doc. 64-1, pp. 31, 

43-44, 87-90). If something had come to light as a result of the application being 

inaccurate, incomplete or misleading, Defendant had the ability to rescind the offer 

of employment. (Doc. 64-1, p. 44). Plaintiff’s Application listed her reason for 

leaving The Blake as “End of Contract.” (Doc. 64-1, p. 88). The Application signed 

by Plaintiff includes the following promise:

I promise that the information I gave in this employment application is 

true and complete. I understand that the Company, may refuse to hire 

me, or if I am hired, may discharge me if I gave false, misleading or 

incomplete information in this application.

(Doc. 64-1, p. 90). The Application does not request information regarding the 

applicant’s licensure status or any pending investigations related thereto. (Doc. 64-

1, pp. 87-90).

Plaintiff also signed an Acknowledgment, dated November 14, 2011, 

confirming that she had read, understood and agreed to comply with the contents of 

the Employee Handbook for the Defendant Company. (Doc. 68-4, ¶ 5 & p. 11). The 

employment policies in the Employee Handbook include a disciplinary rule 

subjecting an employee to disciplinary action “including discharge” for “Dishonesty.” 

(Doc. 68-4, ¶ 5 & pp. 8-9). The Handbook expressly defines “Dishonesty” to include 

“providing false information for any employment related purpose.” (Doc. 68-4, ¶ 5 & 

p. 10). Polys regards the information Plaintiff provided in the Employment 

Case 1:14-cv-00552-CG-C Document 85 Filed 08/11/16 Page 7 of 25
8

Application and during her employment interview process to constitute “dishonesty” 

in violation of the Handbook policy. (Doc. 68-4, ¶5).

The Alabama Board of Nursing investigation of Plaintiff arising from the 

regulatory issues at The Blake was not concluded until September 2014. (Doc. 64-2, 

pp. 10-11). Plaintiff entered into a Consent Order/plea bargain resulting in a twoweek probationary status of her nursing license from September 30, 2014 through 

October 14, 2014, during which time she could not serve in a supervisory nurse 

position. (Doc. 64-2, pp. 11-17; Doc. 64-1, pp. 104-113). If Plaintiff had still been 

working for Defendant at the time of her probationary status, Defendant could have 

accommodated her for the two weeks, but Polys is not sure that they would have, as

a determination would have had to be made whether Plaintiff would be brought 

back into a leadership role knowing what was in the consent order. (Doc. 64-1, pp. 

56-59). Polys testified that they would have looked at the findings from the Board 

and how that related to the position they had Plaintiff in to determine whether to 

terminate Plaintiff or to allow her to keep the same job. (Doc. 64-1, pp. 56-60). If 

they had received a report that an employee had a pending issue and that no 

determination had been made, they would call the Board to get an idea of the 

issues, discuss them with the employee, and handle it on a case-by-case basis. (Doc. 

64-1, p. 55). It would not be an automatic termination unless the Board said that 

the employee was told to inform the employer and the employee had failed to do so. 

(Doc. 64-1, p. 55). According to Polys, if she had obtained all of the information that 

had come to light about Plaintiff’s prior employment and her licensure issues, Polys 

Case 1:14-cv-00552-CG-C Document 85 Filed 08/11/16 Page 8 of 25
9

would not have hired Plaintiff as the Assistant Director of Nursing, a high-level 

supervisory position, because Plaintiff provided false, misleading and incomplete 

information during the hiring process. (Doc. 68-4, ¶ 5). Polys states that if she had 

discovered this information after Plaintiff was hired and was serving as the 

Assistant Director of Nursing, Polys would have terminated Plaintiff’s employment 

immediately for providing false, misleading and incomplete information in violation 

of the Company’s policies. (Doc. 68-4, ¶ 5).

Defendant accommodated three other nurses who had been placed on 

probationary status by the Board, Elizabeth Griffith, Jessica Pharr and Melanie 

Bayha. Griffith received disciplinary action from the Board during her employment 

with the Defendant and remained employed. (Doc. 64-5, pp. 17-19). Griffith let 

Polys know that she had an investigation pending. (Doc. 64-1, p. 55).

The Defendant knew that Pharr’s license was on probationary status and 

that she had been fired from her previous employer at the time that they hired her, 

but they did not put her in a supervisory position. (Doc. 64-5, pp. 7-13). The 

information was all on her application and she was very up front and open about 

what had happened. (Doc. 64-5, pp. 12-14; Doc. 64-1, pp. 16-17). Polys was 

concerned about Pharr’s issues, but ultimately agreed to hire her. (Doc. 64-5, p. 15; 

Doc. 64-1, p. 17).

Bayha received disciplinary action from the Board during her employment 

with the Defendant resulting in her license being placed on probationary status for 

a period of five years, and she remained employed. (Doc. 64-5, pp. 15-19).

Case 1:14-cv-00552-CG-C Document 85 Filed 08/11/16 Page 9 of 25
10

DISCUSSION

A. Motion to Strike

Plaintiff moves to strike portions of the declaration of Mary Kay Polys (Doc. 

68-4), which was submitted in opposition to Plaintiff’s motion for partial summary 

judgment. Plaintiff asserts that the declaration contains irrelevant, vague, 

ambiguous and conclusory statements, hearsay, statements that are not based on 

Polys’ personal knowledge and statements that contradict Polys’ prior deposition 

testimony. 

Plaintiff first contends that the entire declaration should be stricken because 

it does not expressly aver that the content is based on Polys’ personal knowledge. 

Affidavits or declarations can be “used to support or oppose a motion” as long as 

they are “made on personal knowledge, set out facts that would be admissible in 

evidence, and show that the affiant or declarant is competent to testify on the 

matter stated.” FED. R. CIV. P. 56(c)(4). Plaintiff has offered no authority that

requires a declaration to expressly state that it is made on personal knowledge, and 

Rule 56 does not specify that such language must be included. The declaration as a 

whole should not be stricken for failure to expressly aver that it is based on 

personal knowledge.

Plaintiff next objects to statements by Polys that she relied upon information 

provided by Sharon Prince-Moore about information Plaintiff provided in her 

Case 1:14-cv-00552-CG-C Document 85 Filed 08/11/16 Page 10 of 25
11

interview with Moore. Polys avers in her declaration that she relied on this 

information in making the decision to hire Plaintiff. Plaintiff contends that 

statements by Moore about what Plaintiff said constitutes hearsay and that Polys 

does not have personal knowledge of the information. Although Plaintiff argues 

otherwise, the Court finds that this information was not offered for the truth of the 

matter stated, but rather to show the basis for Polys’ decision to hire Plaintiff. See

Goode v. Wild Wing Cafe, 588 F. App'x 870, 875 (11th Cir. 2014) (“such testimony 

was proffered as evidence of Wings' rationale for its decision to terminate Mr. 

Goode, rather than for the truth of the matters asserted” (citing FED. R. EVID. 801(c)

and Moore v. Sears, Roebuck & Co., 683 F.2d 1321, 1323 n. 4 (11th Cir.1982)). The 

Court will consider the statements on that basis and not for the truth of the matters 

asserted in the statements. The Court notes, however, that the information 

provided by Plaintiff to Moore during the interview process has been offered 

through other evidence that has not been objected to by the parties.

Plaintiff also objects to statements by Polys about information that has been 

provided to her during this litigation concerning Plaintiff’s employment at The 

Blake and the Alabama Nursing Board’s investigation of Plaintiff. Again the 

information about Plaintiff’s employment and investigation were not offered for 

their truth, but to show the basis for Polys’ conclusion that if she had been provided 

with this information earlier, she would not have hired Plaintiff, or would have 

terminated Plaintiff if she had already been hired at the time the information came 

to light. Polys even states in the declaration that she has no first hand knowledge 

Case 1:14-cv-00552-CG-C Document 85 Filed 08/11/16 Page 11 of 25
12

of these facts. Likewise, Polys’ statement about what she believes the information 

shows is offered to show the basis of Polys’ conclusion. Plaintiff is correct that 

“Rule 56(e)’s personal knowledge requirement prevents statements in affidavits 

that are based, in part, ‘upon information and belief’ - instead of only knowledgefrom raising genuine issues of fact sufficient to defeat summary judgment.” Pace v. 

Capobianco, 283 F.3d 1275, 1278 (11th Cir. 2002) (citations omitted). “Likewise, an 

affidavit stating only that the affiant ‘believes’ a certain fact exists is insufficient to 

defeat summary judgment by creating a genuine issue of fact about the existence of 

that certain fact.” Id. at 1278-79 (citations omitted). However, Polys’ belief 

statements are only offered to show Polys’ rational for determining that she would 

not have hired or would have terminated Plaintiff if she had been presented with 

the information earlier. See Letson v. Liberty Mut. Ins. Co., 523 F. Supp. 1221, 1226 

(N.D. Ga. 1981) (“Defendant characterizes the statement as hypothetical, 

speculative, and conclusory. However, a statement by a person about his state of 

mind or intent is admissible as evidence of such intent. This is true even where a 

statement is deemed to be an opinion on an ultimate issue in the case.” (citations 

omitted)). Polys’ statements, such as that she “believe[s] [Plaintiff] intentionally 

concealed this information” cannot be used to show Plaintiff’s mental state, but only 

to show Polys’ understanding of the information she reviewed and her reasons for 

her determination. The information Polys lists that she states was provided to her 

during the course of the lawsuit cannot be used to show the truth of the 

information. Polys has not demonstrated that she has personal knowledge of those 

Case 1:14-cv-00552-CG-C Document 85 Filed 08/11/16 Page 12 of 25
13

facts, they are merely what she reviewed and based her determination on. 

Lastly, Plaintiff objects to statements by Polys that Plaintiff contends 

contradict Polys’ prior deposition testimony. Affidavit statements may be stricken 

as a sham when they directly contradict, without explanation, a witness's previous 

sworn testimony. See McCormick v. City of Fort Lauderdale, 333 F.3d 1234, 1240 n. 

7 (11th Cir. 2003); see also Rollins v. TechSouth, Inc., 833 F.2d 1525, 1530 (11th 

Cir. 1987) (“[A] party cannot give clear answers to unambiguous questions in a 

deposition and thereafter raise an issue of material fact in a contradictory affidavit 

that fails to explain the contradiction.” (internal quotations and citation omitted)). 

When an affidavit is contradictory to the extent that it is “inherently inconsistent” 

with deposition testimony, a court should disregard that affidavit as a sham and 

exclude it from the evidence considered in a motion for summary judgment. Rollins, 

833 F.2d at 1530; Lane v. Celotex Corp., 782 F.2d 1526, 1531 (11th Cir. 1986).

Plaintiff objects to the following statement as contradictory:

At [the time I made the final decision to hire Plaintiff], the only 

information available to me about her previous employment as the 

Director of Wellness with The Blake at Malbis, an assisted-living 

nursing facility in Daphne, Alabama, was the information she reported 

on her Employment Application that her “reason for leaving” The

Blake was “end of contract” and the information Ms. Williamson 

provided during her employment interviews.

(Doc. 68-4, ¶ 2). Plaintiff contends the above statement is contradictory because 

Polys’ deposition testimony makes clear that Plaintiff did not fill out an 

Employment Application until after she was hired. However, the Court does not 

find the statement to be directly contradictory. As Polys explained at her 

Case 1:14-cv-00552-CG-C Document 85 Filed 08/11/16 Page 13 of 25
14

deposition, although Plaintiff did not fill out the Employment Application until after 

she started work, if something had come to light as a result of the application being 

inaccurate, incomplete or misleading, Defendant had the ability to rescind the offer 

of employment. Thus, although Polys did not rely on the Employment Application 

before she made the initial job offer, it was still considered in the final 

determination of whether she would be allowed to have or continue in the job.

Plaintiff also objects to the following statement as contradictory:

During the course of Ms. Williamson’s lawsuit against Ball 

HealthCare, I have been provided information and documents that to 

me, clearly show that Ms. Williamson provided false, incomplete and 

misleading information during the employment process when she was 

hired as the ADON for RHCC.

(Doc. 68-4, ¶ 3). Plaintiff asserts that the above statement is contradictory because 

Plaintiff was never asked about pending investigations or her licensure status 

during the interview process, Polys stated that she did not have any reason to 

believe Plaintiff would not have been forthcoming at the time she was hired, and 

because Polys testified that she did not know whether Plaintiff’s reason for leaving 

the Blake was false or not and did not know of any other false statements in 

Plaintiff’s Employment Application. The Court finds the testimony is not directly 

contradictory. The fact that Polys did not specifically ask Plaintiff about pending 

investigations or her licensure does not forego the possibility that Plaintiff provided 

false, incomplete and misleading information. Whether or not Polys believed 

Plaintiff would have been forthcoming during her interview does not contradict 

Polys’ declaration statement. Lastly, the fact that Polys does not know for a fact, in 

Case 1:14-cv-00552-CG-C Document 85 Filed 08/11/16 Page 14 of 25
15

other words that she does not have first hand knowledge of the reason Plaintiff left 

the Blake, does not preclude Polys from concluding from the information she 

reviewed that Plaintiff’s stated reason was false, incomplete or misleading.

Plaintiff also objects, as contradictory, to Polys determination that if she had 

obtained the information about Plaintiff she would not have hired her or would 

have terminated her from employment for providing false, misleading and 

incomplete information. Plaintiff points to Polys’ testimony about the company’s 

practices when they receive credible information that there is a licensure issue. 

Polys explained at her deposition that if she received a report of some pending issue 

and no determination had been made, she would call the Board and get an idea 

what the issues were, have a discussion with the employee, and handle it on a caseby-case basis. Polys testified that it would not be an automatic termination unless 

the employee was told to inform the employer and had failed to do so. However, in 

Plaintiff’s case, Polys did not need to investigate the issue herself. Polys was later 

provided with information about the investigation that was pending at the time 

Plaintiff applied for the position and she reviewed an abundant amount of 

information about the circumstances of Plaintiff’s prior employment and Plaintiff’s 

licensure issues. The fact that any determination would be made on a case-by-case 

basis does not preclude Polys from making a determination after she reviewed the 

relevant information. For all of the reasons discussed above, the Court denies

Plaintiff’s motion to strike the declaration of Mary Kay Polys.

Case 1:14-cv-00552-CG-C Document 85 Filed 08/11/16 Page 15 of 25
16

B. Summary Judgment Standard

Federal Rule of Civil Procedure 56(a) provides that summary judgment shall 

be granted: “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.” The trial court’s 

function is not “to weigh the evidence and determine the truth of the matter but to 

determine whether there is a genuine issue for trial.” Anderson v. Liberty Lobby, 

Inc., 477 U.S. 242, 249 (1986). “The mere existence of some evidence to support the 

non-moving party is not sufficient for denial of summary judgment; there must be 

‘sufficient evidence favoring the nonmoving party for a jury to return a verdict for 

that party.’” Bailey v. Allgas, Inc., 284 F.3d 1237, 1243 (11th Cir. 2002) (quoting 

Anderson, 477 U.S. at 249). "If the evidence is merely colorable, or is not 

significantly probative, summary judgment may be granted." Anderson, at 249-250. 

(internal citations omitted).

The basic issue before the court on a motion for summary judgment is 

“whether the evidence presents a sufficient disagreement to require submission to a 

jury or whether it is so one-sided that one party must prevail as a matter of law.” 

See Anderson, 477 U.S. at 251-252. The moving party bears the burden of proving 

that no genuine issue of material fact exists. O'Ferrell v. United States, 253 F.3d 

1257, 1265 (11th Cir. 2001). In evaluating the argument of the moving party, the 

court must view all evidence in the light most favorable to the non-moving party, 

and resolve all reasonable doubts about the facts in its favor. Burton v. City of Belle 

Glade, 178 F.3d 1175, 1187 (11th Cir. 1999). “If reasonable minds could differ on 

Case 1:14-cv-00552-CG-C Document 85 Filed 08/11/16 Page 16 of 25
17

the inferences arising from undisputed facts, then a court should deny summary 

judgment.” Miranda v. B&B Cash Grocery Store, Inc., 975 F.2d 1518, 1534 (11th 

Cir. 1992) (citing Mercantile Bank & Trust v. Fidelity & Deposit Co., 750 F.2d 838, 

841 (11th Cir. 1985)).

Once the movant satisfies her initial burden under Rule 56(c), the nonmoving party "must make a sufficient showing to establish the existence of each 

essential element to that party's case, and on which that party will bear the burden 

of proof at trial." Howard v. BP Oil Company, 32 F.3d 520, 524 (11th Cir. 

1994)(citing Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986)). Otherwise stated, 

the non-movant must “demonstrate that there is indeed a material issue of fact that 

precludes summary judgment.” See Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 

(11th Cir. 1991). The non-moving party “may not rely merely on allegations or 

denials in its own pleading; rather, its response .... must be by affidavits or as 

otherwise provided in this rule be set out specific facts showing a genuine issue for 

trial.” Vega v. Invsco Group, Ltd., 2011 WL 2533755, *2 (11th Cir. 2011). “A mere 

‘scintilla’ of evidence supporting the [non-moving] party’s position will not suffice; 

there must be enough of a showing that the jury could reasonably find for that 

party.” Walker v. Darby, 911 F.2d 1573, 1577 (11th Cir. 1990) (citation omitted). 

“[T]he nonmoving party may avail itself of all facts and justifiable inferences in the 

record taken as a whole.” Tipton v. Bergrohr GMBH-Siegen, 965 F.2d 994, 998 (11th 

Cir. 1992). “Where the record taken as a whole could not lead a rational trier of fact 

to find for the non-moving party, there is no genuine issue for trial.” Matsushita 

Case 1:14-cv-00552-CG-C Document 85 Filed 08/11/16 Page 17 of 25
18

Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574 at 587 (1986) (internal 

quotation and citation omitted).

C. After-Acquired Evidence Defense

Plaintiff contends that Defendant cannot prevail on its affirmative defense of 

after-acquired evidence. The doctrine of after-acquired evidence was established by 

the Supreme Court in McKennon v. Nashville Banner Pub. Co., 513 U.S. 352 (1995). 

“After-acquired evidence” is evidence of an employee’s wrongdoing that is not 

revealed until after the employee’s discharge. Id. at 354. Not only is evidence of 

wrongdoing during a plaintiff's employment relevant to the after-acquired evidence 

defense, but also evidence of “the employee's misrepresentations in a job application 

or resume” is relevant. Wallace v. Dunn Constr. Co., 62 F.3d 374, 379 (11th Cir.

1995). “[T]he after-acquired evidence does not bar recovery, but merely affects the 

remedy.” Id. at 381 (quoting McKennon, 513 U.S. at 358, 359). “The [Supreme] 

Court held that if an employer ‘establish[es] that the wrongdoing was of such 

severity that the employee in fact would have been terminated on those grounds 

alone if the employer had known of it at the time of the discharge,’ an award of back 

pay should generally be limited to the period of time ‘from the date of the unlawful 

discharge to the date the new information was discovered.’ ” Holland v. Gee, 677 

F.3d 1047, 1064–65 (11th Cir. 2012) (quoting McKennon, 513 U.S. at 362-63). 

“Under the doctrine of after-acquired evidence, the burden is on the employer to 

prove that ‘the wrongdoing was of such severity that the employee in fact would 

have been terminated on those grounds alone.’ ” Id. at 1065 (11th Cir. 2012) 

Case 1:14-cv-00552-CG-C Document 85 Filed 08/11/16 Page 18 of 25
19

(quoting McKennon, 513, U.S. at 362-63). The misconduct must be so grave that 

immediate discharge would have followed its disclosure. Dunn Const., 62 F.3d at 

379 (quoting McKennon, 513 U.S. at 356).

For Defendant’s after-acquired evidence defense to survive summary 

judgment, Defendant must show that, looking at the evidence in the light most 

favorable to Defendant, there is a genuine issue of fact regarding whether 1) 

Plaintiff committed a wrongdoing, and 2) the wrongdoing was of such severity that 

the Defendant would have terminated Plaintiff had it known of the misconduct. See

McKennon, 513 U.S. at 361–62. The question here is whether there is a genuine 

issue of fact regarding 1) whether Plaintiff provided false, misleading and 

incomplete information during the hiring process or on her Application for 

Employment and 2) whether the misconduct was severe enough that Defendant 

would have terminated Plaintiff immediately upon discovering Plaintiff provided 

the alleged false, misleading and incomplete information.

As to whether the information was false, misleading or incomplete, Plaintiff 

stated on her Application for employment that she left The Blake because it was 

“end of contract.” While Plaintiff testified that she had verbally entered into a oneyear contract of employment, Mr. Barclay averred that there was no employment 

contract of any kind. There is evidence that Plaintiff was to be terminated because, 

due to the problems with the ADPH survey, management of the facilities was going 

to change and Plaintiff’s employment would terminate as a result. Plaintiff 

requested that she be allowed to resign instead, but there is clearly evidence that it 

Case 1:14-cv-00552-CG-C Document 85 Filed 08/11/16 Page 19 of 25
20

was not Plaintiff’s choice to leave and that she did not leave because her contract 

had ended. 

Defendant asserts that Plaintiff was also misleading in her interview when 

she reported that she had inherited regulatory issues while working at The Blake 

and did not disclose the issues that related to her own deficiencies or the fact that 

she had a pending investigation against her. There is evidence that Moore and 

Polys were very interested in Plaintiff’s regulatory history and that they had 

discussed with Plaintiff her regulatory history. It was an important issue in their 

consideration of any candidate. There is no evidence that Plaintiff was required by 

the Board to disclose the information or that Plaintiff was asked a direct question 

about her licensure status and lied, but there is evidence that her statements about 

those issues were incomplete and misleading. Plaintiff also reportedly told Moore 

and Polys that the surveys had cleared before she left The Blake, whereas the 

evidence indicates the surveys had in fact not cleared. 

According to Polys, who made the decision to hire Plaintiff, the false, 

incomplete, and misleading information Plaintiff provided violated the Employee 

Handbook and the promise Plaintiff signed that the information she gave in her 

Employment Application was true and complete. The Employee Handbook states 

that such misconduct will result in disciplinary action that may include discharge. 

Similarly, the promise Plaintiff signed at the end of her Application states that if 

she gives false, misleading or incomplete information in the Application, the 

Company may refuse to hire her or, if hired, may discharge her. An employee’s 

Case 1:14-cv-00552-CG-C Document 85 Filed 08/11/16 Page 20 of 25
21

failure to disclose that she had resigned in lieu of being fired is a wrongdoing that 

has been found in at least one case to be sufficiently severe that the company would 

have terminated the employee immediately had it known. See e.g. Forte v. W. 

Florida Med. Ctr. Clinic P.A, 2015 WL 2086231, at *6 (N.D. Fla. May 5, 2015) 

(finding that the plaintiff engaged in wrongdoing by failing to disclose on her 

employment application that she had been asked to resign in lieu of being fired by 

her previous employer and finding that the wrongdoing was of such severity, based 

on the employer’s employment practices and policies, that the defendant would have 

terminated her on those grounds alone had it known about it prior to the time it 

discharged the plaintiff.). The import of Plaintiff’s alleged lie regarding why she left 

The Blake is compounded by the allegations that Plaintiff also gave incomplete or 

misleading information about her regulatory history at The Blake and about the 

extent of her responsibility for the license issues at The Blake. Polys’ and Moore’s

testimony indicates that Plaintiff’s ADPH regulatory history was key information 

they considered in deciding whether to hire Plaintiff. Plaintiff reportedly concealed 

the issues by telling them that the ADPH surveys at The Blake had cleared and 

that Plaintiff voluntarily chose to leave her position at The Blake. Such lies would 

likely head off further questions about Plaintiff’s regulatory history and license 

status. Polys has averred that if she had been made aware of all of the facts and 

circumstances concerning Plaintiff’s employment and regulatory history at The 

Blake, such as that a number of the deficiencies at the Blake were attributed to 

Plaintiff, that the issues at The Blake were not cleared, that Plaintiff did not have 

Case 1:14-cv-00552-CG-C Document 85 Filed 08/11/16 Page 21 of 25
22

an employment contract with and did not voluntarily choose to leave The Blake, and 

that there were pending investigations against Plaintiff, then she would not have 

hired Plaintiff, or if she discovered the information after Plaintiff became employed, 

she would have terminated Plaintiff. Such evidence has been found to support the 

application of the after-acquired evidence doctrine where employment history 

indicated the Defendant had previously terminated others for falsifications or 

misrepresentations. See e.g. Yeary v. Florida Dep't of Corr., 1997 WL 284648, at *5 

(M.D. Fla. May 13, 1997) (granting summary judgment in favor of defendant on 

issue of after-acquired evidence where Defendant submitted an affidavit stating 

that it would have immediately terminated the plaintiff as soon as it learned of the 

omissions/falsifications in her Application just as it had previously done to similarly 

situated employees for analogous acts of falsification and/or misrepresentation). 

Plaintiff attempts to discredit Polys testimony by pointing to her testimony that 

when licensure issues came to light they would address them on a case-by-case 

basis after investigating the facts. However, as discussed above with regard to 

Plaintiff’s motion to strike, Polys has been provided with the information and has 

concluded that if she had been given all of the facts presented, she would have 

terminated Plaintiff. In other words, Polys has considered the specifics of Plaintiff’s 

case and made the decision based on the circumstances of Plaintiff’s case. 

Plaintiff points to three other nurses who were put on probationary status by 

the Board but were not terminated. However, the evidence does not indicate that 

any of these other nurses concealed the information from Defendant. The license 

Case 1:14-cv-00552-CG-C Document 85 Filed 08/11/16 Page 22 of 25
23

issues for Elizabeth Griffith and Melanie Bayha occurred while they were working 

for Defendant and the information was fully disclosed to the Defendant. Jessica 

Pharr was reportedly very upfront and open about her history and circumstances 

when Defendant hired her. Thus, the fact that Defendant did not terminate 

Griffith, Bayha or Pharr does not demonstrate that Defendant would not have 

terminated Plaintiff upon discovering the after-acquired evidence.

In her reply to the motion to summary judgment, Plaintiff submits evidence 

that she contends shows that Polys herself was dishonest during her application 

process.1 Polys’ prior employment with Catholic Health East, a division of Mercy 

Medical, reportedly ended by “mutual agreement” after Polys informed the COO 

that she disagreed with her employer’s plans on how to continue to run the facility. 

(Doc. 72-2, pp. 5-7). Polys felt it was time for her to go in a different direction 

because they were at an impasse. (Doc. 72-2, p. 8). Polys was not asked to resign 

and she negotiated a severance. (Doc. 72-2, p. 7). Polys had not been disciplined or 

received any negative performance evaluations. (Doc. 72-2, p. 8). On her 

Employment Application with the Defendant Company, Polys stated that she left 

Catholic East “[t]o pursue other interests.” (Doc. 72-2, p. 40). According to Polys she 

 1 The Court notes that it is generally improper to raise new arguments for the first 

time in a reply brief. See Randolph v. J.M. Smucker Co., 303 F.R.D. 679, 698 n 19 

(S.D. Fla. 2014) (“This Court has noted that it “cannot consider new arguments 

raised for the first time in a reply brief.” Powell v. Carey Int'l, Inc., 490 F.Supp.2d 

1202, 1206 (S.D. Fla. 2006) (citing Herring v. Secretary. Dept. of Corrections, 397 

F.3d 1338 (11th Cir. 2005) (“As we repeatedly have admonished, ‘[a]rguments raised 

for the first time in a reply brief are not properly before a reviewing court.’ ”)). 

However, the Court will discuss the evidence since the newly submitted evidence is 

offered as rebuttal to support Plaintiff’s original argument that Defendant’s 

employment practices indicate Defendant would not fire Plaintiff. 

Case 1:14-cv-00552-CG-C Document 85 Filed 08/11/16 Page 23 of 25
24

explained in her interview all the information they needed to consider hiring her 

and feels she was up front with everything that she told them. (Doc. 72-2, pp. 26-

28). However, on a request for reference form, Polys stated that the reason for 

leaving was “[r]estructure, change and organization needs.” (Doc. 72-2, p. 44). Polys 

testified that it was a mistake and that she accidently put down the reason she left 

another company, Centegra. (Doc. 72-2, pp. 31-32). Polys had previously been 

terminated from Centegra as a result of a restructuring when her position was 

eliminated. (Doc. 72-2, pp. 8-9). 

The Court does not find that Ms. Polys’ circumstances are sufficiently 

analogous to Plaintiff’s alleged circumstances to demonstrate as a matter of law 

that Defendant would not have terminated Plaintiff if it had discovered the afteracquired evidence. Ms. Polys admits that the reason she stated that she left 

Catholic Health East in the reference form was incorrect. However, Polys contends 

the incorrect reason was merely an error. Moreover, the reported true reason Polys 

left was because she chose to leave and she fully explained all of the circumstances 

during her interview process. More importantly, there is evidence that Polys was 

up front about her employment history and that all of the correct information 

concerning Polys’ employment history was provided to the Defendant during the 

interview process. The evidence does not show that Polys hid or concealed from the 

Defendant Company any disciplinary actions, terminations, or regulatory history. 

Plaintiff also argues that there is no evidence that any false or misleading 

information she provided constituted an intentional deceit. However, even if the 

Case 1:14-cv-00552-CG-C Document 85 Filed 08/11/16 Page 24 of 25
25

Court could conclude that there was no evidence of Plaintiff’s intent, application of 

the after-acquired evidence doctrine does not require a showing that the wrongdoing 

was intentional. See e.g. Cook v. Shaw Indus., 953 F. Supp. 379, 385 (M.D. Ala. 

1996) (finding that even if the omission was unintentional, the plaintiff would have 

been terminated); Yeary v. Florida Dep't of Corr., 1997 WL 284648, at *6 (M.D. Fla. 

May 13, 1997) (finding after-acquired evidence doctrine applies even if the 

misrepresentations were not intentional). Accordingly, in light of all of the above, 

the Court finds that looking at the evidence in the light most favorable to 

Defendant, there is a genuine issue of material fact regarding whether Plaintiff 

committed a wrongdoing of such severity that the Defendant would have 

terminated Plaintiff had it known of the misconduct.

CONCLUSION

For the reasons stated above, Plaintiff’s motions for partial summary 

judgment (Doc. 62) and motion to strike (Doc. 69) are DENIED.

DONE and ORDERED this 11th day of August, 2016.

/s/ Callie V. S. Granade

SENIOR UNITED STATES DISTRICT JUDGE

Case 1:14-cv-00552-CG-C Document 85 Filed 08/11/16 Page 25 of 25