Flynn v. Fidelity National Title Group, Inc.

MOTION for summary judgment AND MEMORANDUM OF LAW IN SUPPORT THEREOF

M.D. Fla.February 1, 2017

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA ORLANDO DIVISION HEATHER FLYNN Plaintiff, vs. FIDELITY NATIONAL TITLE GROUP, INC., a Florida Profit Corporation, Defendant. CASE NO. 6:16-cv-87-ORL-40TBS DEFENDANT FIDELITY NATIONAL MANAGEMENT SERVICES, LLC’S1 MOTION FOR SUMMARY JUDGMENT AND MEMORANDUM OF LAW IN SUPPORT THEREOF Defendant Fidelity National Management Services, LLC (“Fidelity” or “Defendant”), by and through its undersigned counsel and pursuant to Rule 56, Federal Rules of Civil Procedure, respectfully moves this Court for summary judgment against all claims by Plaintiff Heather Flynn as stated in her Complaint and Demand for Jury Trial. For the reasons set forth below, no genuine issues of material fact exist regarding those claims, and Fidelity is entitled to summary judgment as a matter of law. I. INTRODUCTION On January 20, 2016, Plaintiff filed a one-count Complaint against her former employer Fidelity alleging interference and retaliation in violation of the Family and Medical Leave Act (“FMLA”). See Doc. No. 1; see also Deposition Transcript of Heather Flynn dated November 17, 2016 (“Plf. Depo.”) at 20:24-25; 21:1-4. Fidelity denies Plaintiff’s allegations and asserts defenses. See Doc. No. 7. As outlined in further detail below, the undisputed record establishes 1 Plaintiff erroneously named “Fidelity National Title Group, Inc.” as Defendant in this case. The proper party Defendant is Fidelity National Management Services, LLC, which previously consented to its substitution in lieu of a formal amendment to Plaintiff’s Complaint. Case 6:16-cv-00087-PGB-TBS Document 23 Filed 02/01/17 Page 1 of 26 PageID 90 2 Fidelity provided Plaintiff with the FMLA leave she requested and terminated Plaintiff for performance issues unrelated to her leave. Thus, Plaintiff cannot establish FMLA interference because she received all requested FMLA leave. Plaintiff also cannot establish FMLA retaliation because Plaintiff admits to her performance issues. Thus, Plaintiff cannot dispute Fidelity transferred and terminated her for a legitimate, non-retaliatory reason. Plaintiff has no evidence of pretext. As a matter of law, this Court should enter summary judgment in favor of Fidelity. II. STATEMENT OF UNDISPUTED MATERIAL FACTS A. About Fidelity Fidelity, through its family of companies, is engaged in the business of providing title insurance, underwriting, escrow, and closing services to residential, commercial, and industrial clients, lenders, developers, attorneys, real estate professionals, and consumers. See Affidavit of Mary Pat Dunleavy (“Dunleavy Aff.”) at ¶ 2. Fidelity’s employment policies are available to its employees through an Employee Handbook. See id. at ¶ 4; see also Plf. Depo. at 51:24-25; 52:1- 2. In her deposition, Plaintiff acknowledged receipt of the policies and her understanding of same. See Plf. Depo. at 51:24-25; 52:1-2. Plaintiff also agreed the policies applied to her. See id.2 As provided in the Employee Handbook, Fidelity maintains a “Leaves of Absence” policy, including a policy regarding Family and Medical Leave under the FMLA. See Dunleavy Aff. at ¶ 12; see also Plf. Depo. at 53:12-25; 54:1-7, Ex. 5. Under the Family and Medical Leave policy, and consistent with the Family and Medical Leave Act, employees may be eligible for up to 12 weeks of family and medical leave during a rolling 12-month period measured forward from the date of an employee’s first FMLA leave usage. See Plf. Depo. at Exs. 5, 38. The Family and Medical Leave policy identifies specific procedures to request leave. For example, the policy 2 In addition to the employment policies addressed below, the Employee Handbook also includes policies regarding computer usage and telecommuting. See Dunleavy Aff. at ¶¶ 10-11. Case 6:16-cv-00087-PGB-TBS Document 23 Filed 02/01/17 Page 2 of 26 PageID 91 3 provides “[e]mployees are responsible for contacting Fidelity Absence Management directly on their own behalf. Except where the leave is not foreseeable, [an employee] must report [an] absence” to his or her manager. See id. at Exs. 5. If the absence is going to be more than five days in a row, then the employee is to contact Fidelity Absence Management. See id. at Ex. 5. For foreseeable events, employees must provide 30 calendar days’ notice, and all requests must include the anticipated date(s) and duration of the leave. See id. Also, when employees apply for leave, under the policy employees are required to furnish medical certification to confirm the leave qualifies for FMLA. See id. Fidelity requires its employees to conduct themselves in accordance with the highest standards. See Plf. Depo. at Ex. 6; see also Dunleavy Aff. at ¶ 5. As provided in the Employee Handbook, Fidelity’s Workplace Rules includes a General Policy and Standards of Conduct that notifies employees they are “expected to perform at a high standard of reliability, quality of work and quality of service.” See Plf. Depo. at Ex. 6. An employee who fails to meet those standards may be disciplined, up to and including immediate termination. See id. The Standards of Conduct list some behaviors Fidelity considers unacceptable. See id. Some examples of inappropriate behavior include: failing to obtain permission to leave work for any reason during normal working hours and not observing work schedules; wearing unprofessional, inappropriate or extreme styles of dress or hair during work hours; transacting personal business during working hours; failing to satisfactorily perform the requirements of the position; and absenteeism or tardiness. See id. As a result of these behaviors, an employee may receive discipline, including termination, as determined in Fidelity’s sole and absolute discretion. See id. Plaintiff testified this policy was in place during her employment. See Plf. Depo. at 54:20- 25. Plaintiff admitted that employees who did not follow the workplace rules and general rules of Case 6:16-cv-00087-PGB-TBS Document 23 Filed 02/01/17 Page 3 of 26 PageID 92 4 conduct, including leaving work without obtaining permission, wearing unprofessional or inappropriate attire such as flip-flops and failing to satisfactorily perform the requirements of their job positions or who had absenteeism, could be terminated. See id. at 55:12-16; 56:2-20. Fidelity also maintains an Attendance and Punctuality policy in its Employee Handbook, which provides employees are expected to be punctual and regular in attendance. See Plf. Depo. at Ex. 6. Under the policy, “employees are expected to report to work as scheduled, on time and prepared to start work.” Id. Fidelity also expects its employees to remain at work for their entire schedule, except for meal periods or authorized company business. See id. Excessive or abusive absenteeism or tardiness is not tolerated, and “even one unexcused absence or being tardy may be considered excessive and may result in termination of employment.” Id. Fidelity’s Employee Handbook also maintains a Personal Appearance policy, as each employee represents the company and creates an image of how the public views it. See id. at Ex. 7. Employees are required to maintain a “businesslike appearance.” See id. The Personal Appearance policy sets forth examples of dress that are not appropriate. See id. For example, “flip-flops” are not appropriate footwear. See id. Management reserves the right to make the final determination on whether an employee’s clothing is appropriate. See id. B. Plaintiff’s Employment with Fidelity After being placed with Fidelity through a temporary employment agency as a part-time, hourly receptionist, Fidelity hired Plaintiff directly in November 1998 and she continued full- time in the same role through 2000. See Plf. Depo. 15:6-13; 32:2-5, 15-21, 24-25; 33:1-2; 40:1-6; 41:6-13, 17-25. Following maternity leave, Plaintiff returned to Fidelity as a policy typist working part-time from home. See id. at 37:4-14, 17-24. Plaintiff’s position as a policy typist was not a promotion, but rather was an entirely new position for her. See id. at 45:8-12. Case 6:16-cv-00087-PGB-TBS Document 23 Filed 02/01/17 Page 4 of 26 PageID 93 5 Plaintiff remained in the policy typist position until 2002 when she became an agency assistant working for Ms. Mary Pat Dunleavy, a Central Florida agency sales representative at the time. See id. at 38:15-16; 39:3, 14-19; 42:25; 43:11-24. In this agency assistant position, Plaintiff received a salary, commission, car allowance and company-paid cell phone. See id. at 45:24; 46:1; see also Dunleavy Aff. at ¶ 17. In 2007, Ms. Dunleavy moved into a management position, and Plaintiff was promoted to the position of a Central Florida agency sales representative. See Plf. Depo. at 46:19-22, see also Dunleavy Aff. at ¶ 18. In this agency sales representative position, Plaintiff received a salary of $45,000 and was eligible for a commission. She also received the same car allowance and company-paid cell phone from her previous position. See Plf. Depo. at 47:5-12, 21-25; 48:1-4; see also Dunleavy Aff. at ¶ 18. In 2010, Mr. Jason Somers began working with Ms. Dunleavy. His role was to manage the sales team and to assist Ms. Dunleavy with management of the agency operations. Mr. Somers was Plaintiff’s direct supervisor until her departure in January 2014. See Dunleavy Aff. at ¶ 19; see also Plf. Depo. at 52:15-20. In April 2010, Plaintiff’s base salary increased from $45,000 to $50,000. See Dunleavy Aff. at ¶ 19. Sometime between April and June, 2013, based on Plaintiff’s performance-related issues, Fidelity removed Plaintiff as an agency sales representative and offered her an agency client services position. See Plf. Depo. at 47:16-18; 48:7-17; 49:19-23; 75:20-25; 76:1-12; see also Dunleavy Aff. at ¶ 20. In this agency client services position, Plaintiff continued to receive her existing base salary of $50,000, plus commission based on the number of audits she completed, as well as the car allowance and company-paid cell phone from her previous position. See Plf. Case 6:16-cv-00087-PGB-TBS Document 23 Filed 02/01/17 Page 5 of 26 PageID 94 6 Depo. at 48:20-25; 49:1; see also Dunleavy Aff. at ¶ 20.3 Mr. Somers and Ms. Dunleavy decided Plaintiff would need to work from the office in this position. See Plf. Depo. at 67:24-25; 68:1-4; 69:5-21; 70:20-25; 71:1; see also Dunleavy Aff. at ¶ 20. Plaintiff enjoyed the new position and liked working from the office. See Plf. Depo. at 76:3-10; 79:19-22; 98:11-14. However, in June 2013, Plaintiff found it difficult to maintain her schedule, show up to work and meet her responsibilities. See Plf. Depo. at 72:16-24. Around the same time, Plaintiff started sending lengthy, personal emails to co-workers on company email. See id. at 73:7-24. On July 31, 2013, Plaintiff contacted Ms. Dunleavy and requested to work from home because she did not have childcare. See id. at 81:6-17. Ms. Dunleavy reiterated to Plaintiff that she must establish a reliable schedule. See id. Plaintiff understood. See id. On August 6, 2013, Plaintiff met with Mr. Somers and Ms. Becky Adair, her Human Resources representative, to discuss Plaintiff’s duties and responsibilities in the agency client services role. See id. at 84-85:1-3. As follow-up, on August 7, 2013, Mr. Somers provided Plaintiff an outline regarding the expectations they discussed at the previous meeting. See id. D. Plaintiff’s Leave Throughout her employment and including in 2013, Plaintiff requested multiple leaves of absence, both continuous and intermittent, which Fidelity approved under its Family and Medical Leave policy. See Plf. Depo. at 17:11-25; 18:1-6; 24:17-23; 26:18-19; 60:1-6:99:7-9; 111:6-24; 119:15-19; 135:24-25; 136:1-5. On or about August 28, 2013, Plaintiff requested a leave of absence and received a Notice of Eligibility Rights and Responsibilities. See id. at 131:17-19, Exs. 37-38. Plaintiff failed to return documentation supporting the requested leave and on September 17, 2013, Fidelity contacted Plaintiff and provided a new, extended deadline for 3 Plaintiff admitted this change in position occurred prior to Plaintiff requesting any of the leave at issue in the lawsuit. See Plf. Depo. at 80:20-23. Case 6:16-cv-00087-PGB-TBS Document 23 Filed 02/01/17 Page 6 of 26 PageID 95 7 Plaintiff to return the completed certification form. See id. 133:13-18, at Ex. 39. More than a month after the extended deadline, on or about October 24, 2013, Plaintiff returned her completed certification form. See id. at 134:21-25, Ex. 40. The certification indicated Plaintiff would not be incapacitated for a single continuous period and did not need to work a part-time or reduced schedule. See id. at 135:6-9. On October 28, 2013, Fidelity notified Plaintiff her leave of absence had been approved for intermittent leave between August 26, 2013 and February 24, 2014. See id. at 135:16-23, Ex. 41. Throughout this process, Plaintiff admits Fidelity, including her supervisor Mr. Somers, worked with her regarding her intermittent FMLA leave and granted all intermittent FMLA leave she requested. See id. at 92-93.4 D. Plaintiff’s Discipline and Termination On October 9, 2013, in her agency client services position, Plaintiff requested permission from Mr. Somers to review certain files. See Plf. Depo. at 86. Mr. Somers advised Plaintiff not to review the files and to stay on target with her reviews to ensure she met her review goals for the month. See id. at 88:13-25; 89:1-2. Although Plaintiff could not remember whether she viewed the files anyway, Plaintiff admitted if she had, then she understood why Mr. Somers would be upset. See id. at 93:20-25; 94:1. In November 2013, based on complaints from Fidelity agents and Plaintiff’s inability to satisfactorily perform her duties in the agency client services position, Plaintiff was removed from the agency client services position and offered a position as an agency sales assistant (“sales assistant”) working 40 hours per week. See Plf. Depo. at 50:17-19; 51:8-12; see also Dunleavy Aff. at ¶ 22. As a sales assistant, Plaintiff received the same base salary of $50,000 as 4 Although Plaintiff testified she felt she could not do anything right with respect to Mr. Somers, she admitted those feelings were based on Mr. Somers’ management style and that Mr. Somers treated everyone the same. See Plf. Depo. at 26:1-13; 94:20-25; 96:12-17. Plaintiff also admitted Mr. Somers allowed her to take her FMLA intermittent leave and worked with her in that regard. See id. at 97:10-18. Case 6:16-cv-00087-PGB-TBS Document 23 Filed 02/01/17 Page 7 of 26 PageID 96 8 her former positions but on an hourly basis, as well as the same car allowance and company-paid cell phone. See Dunleavy Aff. at ¶ 22. Ms. Flynn was eligible for a discretionary bonus. See id. Plaintiff’s supervisor remained Mr. Somers. See Plf. Depo. at 52:15-20. On November 21, 2013, Plaintiff and Mr. Somers discussed her performance. See Plf. Depo. at 112:3-23, Ex. 32. They discussed Plaintiff’s obligation to inform management regarding when she will be late, when she needed to leave work early and what appointments were due to her FMLA leave. See id. at 113. Plaintiff was also counseled that discussing personal matters at length with co-workers is distracting to them and could result in them getting disciplined by their managers. See id. Additionally, Plaintiff was warned to complete tasks timely and was reminded about proper office attire and the prohibition on wearing flip-flops. See id. Plaintiff and Mr. Somers also discussed Plaintiff’s ongoing IT issues. See id. On November 26, 2013, despite being warned about long personal emails to co-workers, Plaintiff sent another one. See Plf. Depo. at 102. In the email, Plaintiff admitted she should not be sending the email, and she also admitted she allowed her daughter to use her company laptop, which she knew was a violation of company policy. See id. at 102-103:1-3. Plaintiff admitted three times during the email that it was unprofessional. See id. at 105:14-20. However, Plaintiff sent another personal email to the same co-worker the next day. See id. at 106:15-17. On December 2, 2013, Plaintiff contacted Ms. Dunleavy and Ms. Adair regarding reducing her work hours to 30 hours per week. See id. at 107:4-16; see also Dunleavy Aff. at ¶ 23. Plaintiff also told Ms. Dunleavy she would not work that day because she had to meet with her divorce attorney. See Plf. Depo. at 107:4-16. Plaintiff also admitted she could be terminated for allowing her daughter to use her company laptop. See id. at 108-109:1-5. On December 13, 2013, Plaintiff received a Notice of Performance Counseling from Mr. Case 6:16-cv-00087-PGB-TBS Document 23 Filed 02/01/17 Page 8 of 26 PageID 97 9 Somers for violation of company policy and unsatisfactory performance. See Plf. Depo. at Ex. 32; see also Dunleavy Aff. at ¶ 24. According to the notice, Plaintiff had violated two work policies, including working while off the clock and the policy regarding personal use of Fidelity’s communication and computer systems. See Plf. Depo. at Ex. 32. Additionally, Plaintiff was reprimanded regarding failing to complete tasks entirely or not on time. See id. Plaintiff was advised her personal conversations continued to disrupt other employees and impacted her ability to complete assigned tasks. See id. Additionally, Plaintiff was again counseled on not communicating her schedule in advance, if possible, and sending lengthy emails. See id. Plaintiff admitted to the poor performance and policy violations. See id. at 115:4-25. The Notice of Performance Counseling included a summary of the immediate corrective action required, including using her computer only in the office, discontinuing wearing flip- flops, and completing her tasks on time. See Plf. Depo. at Ex. 32. Mr. Somers requested Plaintiff limit her personal conversations unless she was on break and focus on work and keep her personal issues out of the workplace. See id. Plaintiff was advised and acknowledged she needed to show immediate improvement in all areas, and she would be reviewed again in January 2014. See id. Plaintiff was also advised and understood her failure to show immediate and sustained improvement in all outlined areas and/or other violations of company policy may result in further disciplinary action, up to and including demotion or termination. See id. The issues with Plaintiff’s performance continued. She disrupted co-workers with her personal problems and lengthy emails. See Plf. Depo. at 119:3-19. Although she understood Fidelity had been working with her to help her maintain her employment and understood the importance of her schedule, Plaintiff failed to advise management regarding her schedule (i.e., when she would be late, when she needed to leave work early and what appointments were due Case 6:16-cv-00087-PGB-TBS Document 23 Filed 02/01/17 Page 9 of 26 PageID 98 10 to her FMLA leave) and failed to adhere to any type of schedule. See id. at 120:24-25; 121:1-15. Plaintiff also continued to wear flip-flops in violation of company policy. See id. at 122:2-8. As a result of Plaintiff’s continued performance issues, Ms. Dunleavy made the decision to terminate Plaintiff’s employment. See Dunleavy Aff. at ¶ 27. Before Ms. Dunleavy could meet with Plaintiff regarding her termination, Plaintiff requested options regarding an undisclosed leave of absence separate from her FMLA intermittent leave. See id. at ¶¶ 27-29, Ex. 3. Plaintiff confirmed the request was not FMLA related as her doctor did not advise her she could not work at all (i.e., would need a continuous leave for medical reasons). See id. Plaintiff never completed FMLA paperwork for this requested leave of absence. See id. at ¶ 30. Likewise, Plaintiff never contacted Fidelity Absence Management regarding her request. See id. On January 27, 2014, Plaintiff met with Ms. Adair and Ms. Dunleavy. See Plf. Depo. at 122:13-15; see also Dunleavy Aff. at ¶ 31. During this meeting, Ms. Dunleavy terminated Plaintiff due to her performance issues. See Plf. Depo. at Ex. 35; see also Dunleavy Aff. at ¶ 31. Plaintiff was employed as a sales assistant working 30 hours per week at the time of her termination. See id. at 16:8-11; 51:21-23; 107:4-16. From the time Plaintiff became an agency sales representative in 2007 through her termination, Plaintiff was paid the same or more base salary each year and received the same car allowance and company-paid telephone. See Dunleavy Aff. at ¶ 32. III. MEMORANDUM OF LAW A. Standard of Review Summary judgment is appropriate if, through pleadings, affidavits, depositions and documents, it appears no genuine issue of any material fact exists and the moving party is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(c); Armstrong v. Flowers Hosp., Case 6:16-cv-00087-PGB-TBS Document 23 Filed 02/01/17 Page 10 of 26 PageID 99 11 Inc., 33 F.3d 1308 (11th Cir. 1994). The party seeking summary judgment bears the initial burden of demonstrating the basis for its motion and the absence of a genuine issue of material fact. See Armstrong, 33 F.3d at 1309. If this initial burden is met, the burden shifts to the non- moving party to establish genuine issues of material fact exist. See id. A plaintiff cannot defeat summary judgment by resting upon conclusory allegations in the pleadings. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Nor may summary judgment be defeated merely on the basis of “metaphysical doubt” about material facts or on the basis of “conjecture or surmise.” Matshuhita Elec. Indus. Cp. v. Zenith Radio Corp., 475 U.S. 574, 585 (1986). Instead, the plaintiff must present “specific facts showing that there is a genuine issue for trial.” Id. at 587. “A mere ‘scintilla’ of evidence supporting the opposing party’s position will not suffice; there must be a sufficient showing that the jury could reasonably find for that party.” Walker v. Darby, 911 F.2d 1573, 1577 (11th Cir. 1990). If the non-moving party’s evidence is “merely colorable, or is not significantly probative,” then summary judgment is appropriate. Anderson, 477 U.S. 242, 249-50. B. Plaintiff’s FMLA Claims Fail As A Matter of Law The FMLA entitles eligible employees of covered employers up to 12 working weeks of unpaid leave during any twelve-month period under certain enumerated circumstances, including when an employee suffers from a serious health condition that makes the employee unable to perform the functions of her position. See 29 U.S.C. § 2612(a)(1)(D). The FMLA recognizes two distinct causes of action, to which courts apply different analyses. See e.g., Russell v. N. Broward Hospital, 346 F.3d 1335, 1340 (11th Cir. 2003) (citing Strickland v. Water Works & Sewer Bd. of the City of Birmingham, 239 F.3d 1199, 1206-07 (11th Cir. 2001)). First, an employee may make an “interference” claim for violation of her prescriptive Case 6:16-cv-00087-PGB-TBS Document 23 Filed 02/01/17 Page 11 of 26 PageID 100 12 rights guaranteed under the statute. This claim relies on the FMLA’s substantive guarantees that an employer may not interfere with, restrain, or deny an employee’s use of FMLA leave. See 29 U.S.C. § 2615(a)(1). As a separate, distinct claim under the FMLA, an employee also may claim retaliation based on the employee’s exercise of his or her FMLA rights. See 29 U.S.C. § 2615(a)(2). A retaliation claim relates to the provisions of the FMLA which provide that employers cannot penalize employees for the use of protected leave. Plaintiff asserts both her interference and retaliation claims under one cause of action. Plaintiff claims that while she was taking intermittent FMLA leave, Fidelity reduced her pay, downgraded her job position and stripped her of several job “perks.” Then, Plaintiff claims when she allegedly requested two weeks of continuous FMLA leave, Fidelity terminated her employment. See Doc. No. 1 at ¶¶ 11-14. As outlined below, Plaintiff’s FMLA claims fail as a matter of law, and there are no genuine issues for trial. C. Plaintiff Cannot Establish FMLA Interference In her Complaint, Plaintiff admits from August 26, 2013 to her termination on January 27, 2014, Plaintiff “took intermittent unpaid leave pursuant to the FMLA in order to address major anxiety, depression, and panic attacks, after which she returned to work as per usual.” Compl. at ¶ 11. Plaintiff reiterates this admission several times during her deposition. See Plf. Depo. at 17:11-25; 18:1-6; 24:17-23; 26:18-19; 60:1-6:99:7-9; 111:6-24; 119:15-19; 135:24-25; 136:1-5. Therefore, it is undisputed during Plaintiff’s employment, Fidelity granted Plaintiff intermittent FMLA leave as requested, without issue. Plaintiff has no viable argument she was denied any intermittent FMLA benefits to which she was entitled. See e.g. Graham v. State Farm Mutual Insurance Company, 193 F.3d 1274, 1284 (11th Cir. 1999) (finding there can be no Case 6:16-cv-00087-PGB-TBS Document 23 Filed 02/01/17 Page 12 of 26 PageID 101 13 recovery because plaintiff cannot establish she suffered any damages since she was not denied any FMLA leave time); Diaz v. Transatlantic Bank, 367 Fed. Appx. 93 (11th Cir. 2010) (granting summary judgment on FMLA interference claim where no benefit of the FMLA was denied); Gossage v. Wal-Mart Stores, Inc., No. 3:05-CV-77 CDL, 2007 U.S. Dist. LEXIS 71986 at **25-26 (M.D. Ga. Sept. 27, 2007) (granting summary judgment for defendant on FMLA interference claim where plaintiff failed to show defendant interfered with her FMLA rights in that plaintiff was not denied any FMLA benefits). As a result, Plaintiff’s FMLA interference claim fails as a matter of law with respect to her intermittent leave. However, Plaintiff also claims she requested two weeks of continuous FMLA-protected leave to address an undisclosed “chronic health condition.”5 See Compl. at ¶ 13. Plaintiff alleges she was terminated before she could take the requested leave. See id. Plaintiff also fails to establish interference as a matter of law under these allegations. To establish an FMLA interference claim, Plaintiff must show: (1) she was eligible for FMLA leave; (2) she was entitled to FMLA leave; (3) she gave Fidelity proper notice of the need for leave; and (4) Fidelity discharged her because of her need for leave. See Sparks v. Sunshine Mills, Inc., 2013 U.S. Dist. LEXIS 125756, at *37 (N.D. Ala. Sept. 4, 2013). Ultimately, Plaintiff must demonstrate she was “denied a benefit to which he was entitled under the FMLA.” Schaaf v. Smithkline Beecham Corp., 602 F.3d 1236, 1241 (11th Cir. 2010). Whether the employer intended to deny the benefit is irrelevant. See Krutzig v. Pulte Home Corp., 602 F.3d 1231, 1235 (11th Cir. 2010). 5 One type of “serious health condition” is a “chronic health condition.” 29 C.F.R. § 825.115. However, FMLA protections do not extend to any medically beneficial leave simply because the employee has a chronic health condition. See Hurley v. Kent of Naples, Inc., 746 F.3d 1161, 1168 (11th Cir. 2014). Instead, the FMLA only protects leave for “[a]ny period of incapacity or treatment for such incapacity due to a chronic serious health condition.” 29 C.F.R. § 825.115(c) (emphasis added). Plaintiff’s medical certification unequivocally showed Plaintiff would not be incapacitated for a continuous period. Case 6:16-cv-00087-PGB-TBS Document 23 Filed 02/01/17 Page 13 of 26 PageID 102 14 1. Plaintiff Failed to Provide Fidelity Notice Required under FMLA. The FMLA entitles eligible employees to take unpaid, job-protected leave for specified family and medical reasons. Under the FMLA, both the employee and the employer have specific notice requirements. See 29 U.S.C. § 2612(e)(1) and (2), 2613; 29 C.F.R. §§ 825.208, 825.300, 825.301, 825.302, 825.303, 825.304, 825.305. Plaintiff, as the employee, shall provide verbal or written notice to Fidelity “sufficient to make the employer aware that the employee needs FMLA-qualifying leave, and the anticipated timing and duration of the leave.” 29 C.F.R. § 825.302(c); see also Lowery v. Strength, 356 Fed.Appx. 332, 333 (11th Cir. 2009). While Plaintiff’s notice need not expressly assert her rights under the FMLA or even mention the FMLA to meet her notice obligation, Plaintiff is required to state a qualifying reason for the needed leave. See Andrews v. CSX Transp., Inc., 737 F. Supp. 2d 1342, 1350–51 (M.D. Fla. 2010) (citing 29 C.F.R. § 825.208(a)(2)); Cruz v. Publix Super Markets, Inc., 428 F.3d 1379, 1383 (11th Cir. 2005) (citing 29 C.F.R. §§ 825.302(c), 825.303(b)). “The FMLA does not require that an employee give notice of a desire to invoke the FMLA. Rather, it requires that the employee give notice of need for FMLA leave. This kind of notice is given when the employee requests leave for a covered reason. After a notice of this sort the employer can inquire further to determine if FMLA applies.” Price v. City of Ft. Wayne, 117 F.3d 1022, 1026 (7th Cir.1997). Here, Plaintiff’s request for a leave of absence on January 21, 2014, was not notice to Fidelity that Plaintiff needed FMLA leave. On January 2, 2014, Plaintiff requested information regarding vacation and the rate at which her vacation accrued. See Dunleavy Aff. at Ex. 3. There was no indication Plaintiff was requesting leave due to a covered reason under the FMLA. Then, on January 21, 2014, knowing her performance issues had continued despite the performance counseling and written reprimand, Plaintiff asked whether there was any leave that Case 6:16-cv-00087-PGB-TBS Document 23 Filed 02/01/17 Page 14 of 26 PageID 103 15 could help save her job. See id. Nothing in the email indicated Plaintiff needed FMLA-qualifying leave or the anticipated timing and duration of such leave. See id. When specifically asked if Plaintiff was inquiring about leave other than the intermittent FMLA leave for which she was currently approved, Plaintiff was clear she was and desired to save her intermittent FMLA leave as she would “continue to need FMLA days.” Id. After outlining the marital issues she was facing, Plaintiff reiterated on January 22, 2014, she was requesting other available options for a leave of absence aside from FMLA leave. See id. At that point, Fidelity inquired whether Plaintiff was able to work. See id. By Plaintiff’s own admission, her alleged request for a leave of absence was not required by her doctor, and she was still able to work. See id. Based on that statement alone, the leave was not based on a chronic health condition as Plaintiff alleges in her Complaint or otherwise FMLA-qualifying. Plaintiff acknowledged Fidelity was trying to “find a place for [her]” and her supervisor’s expectations of her “were more then [sic] fair.” Id. But Plaintiff knew she was underperforming and had not made the immediate improvements to her job performance necessary to avoid additional discipline or termination. See id. In an attempt to save her job, Plaintiff voluntarily sought other available leave of absence options (for an undisclosed duration) that would allow her to keep her remaining intermittent FMLA leave for when she returned to work. Such a request is insufficient to put Fidelity on notice Plaintiff needed an FMLA-qualifying leave; it does not state a qualifying reason for the requested leave or the timing or duration thereof. Fidelity cannot interfere with Plaintiff’s right to take FMLA leave if Plaintiff never gave notice. Plaintiff’s alleged request cannot serve as the basis for an FMLA interference claim.6 See Sparks, 2013 U.S. Dist. Lexis 125756 at *42 (citing 6 Plaintiff never completed FMLA paperwork for continuous leave, including providing the health care provider Case 6:16-cv-00087-PGB-TBS Document 23 Filed 02/01/17 Page 15 of 26 PageID 104 16 Lee v.U.S. Steel Corp., 450 Fed. Appx 834, 838 (11th Cir. 2012)) (finding plaintiff failed to give employer sufficient notice where he provided medical certificates stating a health care provider had seen him and there “was nothing to indicate that he was unable to perform his job duties during that time period or that he was undergoing a regimen of continuing treatment.”). 2. Plaintiff’s Termination Was Unrelated to Her Leave. In the event this Court determines Plaintiff’s request was adequate notice under the FMLA, which Fidelity disputes, Plaintiff’s claim of interference nevertheless fails. The decision to terminate Plaintiff occurred before her purported continuous FMLA leave request and was, therefore, unrelated to her request for a leave of absence. See Dunleavy Aff. at ¶¶ 27-31. An employer is not liable for an adverse employment action after an employee requests or takes FMLA leave if it can show it would have made the same decision for a reason unrelated to FMLA leave. See Krutzig, 602 F.3d at 1235; Martin v. Brevard Cnty. Pub. Sch., 543 F.3d 1261, 1267 (11th Cir. 2008) (“an employer can deny reinstatement if it can demonstrate that it would have discharged the employee had [s]he not been on FMLA leave”). In Krutzig, the Eleventh Circuit held “the right to commence FMLA leave is not absolute.” 602 F.3d at 1236. An employer may terminate an employee, thus preventing her from exercising her right to commence FMLA leave, without violating the FMLA if the employee would have been terminated regardless of any request for FMLA leave. See id. An employee who requests FMLA leave has no greater job protection against termination for reasons unrelated to her FMLA request than she had prior to the request. See id. Therefore, because the unrebutted evidence in Krutzig established the defendant was not aware of the plaintiff’s FMLA leave request at the time it made the decision to discharge plaintiff, the court affirmed summary certification. See Dunleavy Aff. at ¶ 30. Likewise, Plaintiff never contacted Fidelity Absence Management regarding her request for an extended personal leave of absence. See id. Case 6:16-cv-00087-PGB-TBS Document 23 Filed 02/01/17 Page 16 of 26 PageID 105 17 judgment in favor of the defendant as to plaintiff’s FMLA interference claim. See id. Notably, in Krutzig, the employer obtained summary judgment even though the plaintiff requested FMLA leave before the termination decision was made. See id. at 1233. Here, the facts supporting summary judgment are equally as strong as in Krutzig. Plaintiff was terminated because of her continued performance issues and violations of company employment policies; issues Plaintiff does not deny. Plaintiff admitted to receiving discipline in November and December 2013. See Plf. Depo. at 125:2-7. Plaintiff also admitted after being disciplined she continued to fail to adhere to a schedule, continued to send personal emails from her work laptop in violation of Fidelity’s computer usage policy and continued to wear flip-flops in violation of Fidelity’s Personal Appearance policy – all despite understanding her supervisor’s expectations and knowing any failure to show immediate and sustained improvement would lead to her termination. See id. at 120:24-25; 121:1-15; 122:1-12. The evidence shows Plaintiff was terminated because of her admitted performance issues. That decision was made before her purported request for continuous FMLA leave. Therefore, Plaintiff’s interference claim related to her request for a leave of absence on January 21, 2014 is without merit. Summary judgment on Plaintiff’s interference claim is proper. See Schaaf v. Smithkline Beecham Corp., 602 F.3d 1236, 1243 (11th Cir. 2010) (affirming summary judgment for FMLA interference claim in favor of employer where employee was demoted because of managerial ineffectiveness); Trabulsy v. Polk Cmty. College, 2010 U.S. Dist. LEXIS 54731 (M.D. Fla. May 3, 2010) (finding plaintiff’s FMLA interference and retaliation claims failed because plaintiff could not demonstrate a causal connection). D. Plaintiff Cannot Establish FMLA Retaliation Plaintiff alleges Fidelity reduced her pay, downgraded her position and stripped Plaintiff Case 6:16-cv-00087-PGB-TBS Document 23 Filed 02/01/17 Page 17 of 26 PageID 106 18 of several job perks in retaliation for requesting and receiving intermittent FMLA leave. See Compl. at ¶ 12. Ultimately, Plaintiff alleges she was terminated prior to exhausting her intermittent FMLA and in retaliation for requesting two weeks of continuous FMLA leave. See id. at ¶¶ 14. Plaintiff’s retaliation claim fails as a matter of law. To succeed on a retaliation claim under the FMLA, Plaintiff must demonstrate Fidelity “intentionally discriminated against [her] in the form of an adverse employment action for having exercised an FMLA right.” Strickland v. Water Works & Sewer Bd. of Birmingham, 239 F.3d 1199, 1207 (11th Cir. 2001). Thus, “[u]nlike an interference claim, an employee bringing a retaliation claim faces the increased burden of showing that his employer’s actions were motivated by an impermissible retaliatory or discriminatory animus.” Martin v. Brevard County Public Schools, 543 F.3d 1261, 1267 (11th Cir. 2008). Plaintiff admits no one told her she was being terminated because she requested or took FMLA leave. See Plf. Depo. at 129:16-18. In the absence of direct evidence of an employer’s intent, this Court must analyze Plaintiff’s retaliation claim under the burden-shifting framework of McDonnel Douglas v. Green, 411 U.S. 792 (1973). See Daugherty v. Mikart, Inc., 205 Fed. Appx. 826, 827 (11th Cir. 2006) (citing Hurlbert v. St. Mary’s Health Care Sys., Inc., 439 F.3d 1286, 1297 (11th Cir. 2006)). To make a prima facie showing of FMLA retaliation, Plaintiff must establish: (1) she availed herself of the FMLA or engaged in protected activity; (2) she suffered an adverse employment action; and (3) a causal connection between the adverse employment action and her use of FMLA leave. See Galloway v. Georgia Technology Authority, 182 Fed. Appx. 877 (11th Cir. 2006) (granting summary judgment for employer in FMLA retaliation case); Lottinger v. Shell Oil Co., 143 F. Supp. 2d 743, 772-773 (S.D. Tex. 2013) (granting summary judgment for employer because employee failed to establish third element in prima facie case under FMLA). Case 6:16-cv-00087-PGB-TBS Document 23 Filed 02/01/17 Page 18 of 26 PageID 107 19 If the plaintiff makes out a prima facie case, then the burden shifts to the defendant to put forth a legitimate, non-retaliatory, reason for the challenged action. See Hurlbert, 439, F.3d at 1297. If the defendant puts forth such a reason, then the plaintiff must show she will be able to demonstrate at trial the defendant’s stated reason for the action is pretextual. See Stewart v. Happy Herman’s Cheshire Bridge, Inc., 117 F.3d 1278, 1287 (11th Cir. 1997). Pretext is only proven if “it is shown both that the reason was false, and that discrimination was the real reason behind the challenged action.” St. Mary’s Honor Center v. Hicks, 509 U.S. 502, 515 (1993). For purposes of this Motion, Fidelity does not dispute Plaintiff, while working in the agency client services position, requested and took intermittent FMLA leave beginning August 26, 2013. Fidelity also does not dispute the only change in Plaintiff’s position after she requested intermittent FMLA leave came in November 2013 when Plaintiff was removed from the agency client services position and offered the sales assistant position. This change in position occurred because of Plaintiff’s subpar job performance in the agency client services position and complaints from Fidelity agents regarding Plaintiff. Moreover, Fidelity does not dispute Plaintiff was terminated on January 27, 2014 for performance issues and continued violations of company employment policies. However, Fidelity disputes Plaintiff’s reassignment to the sales assistant position was an adverse employment action taken because of her request for (and utilization of) intermittent FMLA leave. Additionally, for the reasons stated above, Fidelity disputes Plaintiff’s request for a leave of absence on January 21, 2014 was a valid request for continuous FMLA leave and, therefore, was not a protected activity. Without establishing she gave sufficient notice of her need for continuous FMLA leave, Plaintiff also cannot establish the January 21, 2014 request for leave of absence was the “but for” cause of her termination. Case 6:16-cv-00087-PGB-TBS Document 23 Filed 02/01/17 Page 19 of 26 PageID 108 20 1. Plaintiff Cannot Establish FMLA Retaliation Because her Change in Position Was Not an Adverse Employment Action. “An adverse employment action is an ultimate employment decision, such as discharge or failure to hire, or other conduct that alters the employee’s compensation, terms, conditions, or privileges of employment, that deprives him or her of employment opportunities, or adversely affects his or her status as an employee.” See, e.g., Galloway v. GA Technology Authority, 182 Fed. Appx. 877, 880 (11th Cir. 2006) (citing Gupta v. Fla. Bd. of Regents, 212 F.3d 571, 587 (11th Cir. 2000)). The record is clear Plaintiff was unable to perform the agency client services position. As a result, she was placed in a sales assistant role. However, Plaintiff’s base salary remained the same, and she continued to receive the same car allowance and company-paid cell phone as she had received in her previous positions. See Dunleavy Aff. at ¶¶ 22, 32. To the extent Plaintiff alleges she lost the use of her company-issued laptop due to the change in position to sales assistant, Plaintiff is incorrect. Instead, as set forth above, Plaintiff admitted she violated Fidelity’s policy regarding computer usage. As a result, Plaintiff was required to utilize the company computer at the office only. See id. at ¶ 24. Finally, to the extent Plaintiff alleges she also lost the “perk” of working from home because of her intermittent FMLA leave, Plaintiff is mistaken. As set forth above, while Plaintiff was working in the agency client services position, Mr. Somers and Ms. Dunleavy decided Plaintiff would need to work from the office. This occurred prior to Plaintiff requesting the intermittent FMLA leave at issue in this lawsuit. Regardless, Plaintiff admitted it was her supervisor’s prerogative to require her to perform her duties in the office, and she liked it. Here, Plaintiff’s change to her job position was related to her job performance. It was not Case 6:16-cv-00087-PGB-TBS Document 23 Filed 02/01/17 Page 20 of 26 PageID 109 21 an ultimate employment decision that rises to the level of an adverse employment action. See Stavropoulos v. Firestone, 361 F.3d 610, 616-617 (11th Cir. 2004) (“To be considered an adverse employment action . . . , the action must either be an ultimate employment decision or else must meet some threshold level of substantiality.”). Plaintiff’s FMLA retaliation claim fails as a matter of law in that regard, and Fidelity is entitled to summary judgment on that issue. 2. Plaintiff Cannot Establish FMLA Retaliation Because There is No Causal Connection Between Her FMLA Leave and Her Change in Position and Termination. Even if Plaintiff is able to establish her change in position was an adverse employment action, which it was not, Plaintiff must still establish a “causal link” connecting her intermittent leave (the protected activity) and the adverse employment action. Plaintiff cannot do so. Plaintiff also cannot establish a causal connection between her intermittent FMLA leave, or her request for a leave of absence, and her termination. Courts within the Eleventh Circuit have applied the Nassar “but for” causation standard to FMLA retaliation claims. See Sparks, 2013 U.S. Dist. LEXIS 125756, at *45 n.4 (finding “the Supreme Court’s determination that the ‘but for’ causation standard applies where an employee alleges retaliation because he engaged in some protected activity also applies in the FMLA context”), aff’d 580 Fed. Appx. 759 (11th Cir. 2014) (unpublished). For Plaintiff to survive summary judgment, Plaintiff must show her participation in FMLA leave was related to her termination. See id. This she cannot do. It is undisputed Plaintiff was underperforming and continued to violate multiple employment policies, the consequence of which was termination. Although Plaintiff was ultimately terminated, her termination cannot constitute an adverse employment action because the termination occurred months after Plaintiff’s request for intermittent FMLA, which Fidelity approved and allowed Plaintiff to take. Additionally, the Case 6:16-cv-00087-PGB-TBS Document 23 Filed 02/01/17 Page 21 of 26 PageID 110 22 termination decision was made after Plaintiff had been counseled several times regarding the bases for the termination and before Plaintiff made the request for a leave of absence on January 21, 2014.7 An effect cannot chronologically precede its cause as a matter of logic and common sense. Numerous courts have held that an employment decision made before a request for FMLA leave, even if not communicated to the employee, is a defense to a retaliation claim. See Gipson v. Vought Aircraft Indus., Inc., 2010 US. App. LEXIS 14383, *25-26 (6th Cir. July 13, 2010) (holding plaintiff could not establish a causal connection between seeking FMLA leave and his termination because the “wheels of termination” had already been put in motion before [he] requested lave.”); Reinhart v. Mineral Techs, Inc., 2006 U.S. Dist LEXIS 89279, *40-41 (E.D. Pa. Nov. 27, 2006) (holding no FMLA violation where an employer decided to terminate the employee before the employee requests FMLA leave.); Kennebrew v. NY City Housing Auth., 2002 U.S. Dist. Lexis 3038 (S.D. N.Y. Feb. 26, 2002) (same); Carillo v. Nat’l Council of the Churches of Christ, 976 F. Supp. 254, 256 (S.D.N.Y. 1997) (same); See Tuberville v. Pers. Fin. Corp., 1996 U.S. Dist. Lexis 16775, *3 (N.D. Miss. June 4, 1996) (finding no prima facie case of FMLA violation when “wheels of termination were put in motion before request for leave”); Beno v. United Tel. Co. of Fla., 969 F. Supp 723, 726 (M.D. Fla. 1997) (same). The above chronology of events confirms Plaintiff was terminated for poor performance and violations of company employment policies. Even if Plaintiff could establish she requested continuous FMLA leave on January 21, 2014, which she cannot, any causal connection that could be inferred from temporal proximity is undermined by the undisputed fact she had been counseled in November 2013 and then disciplined in December 2013 for the same reasons she was terminated. See Pashoian v. GTE Directories, 208 F. Supp. 2d 1293, 1305 (M.D. Fla. 2002). 7 As set forth above, Plaintiff’s request for a leave of absence was for a non-FMLA qualifying reason and/or did not provide the requisite notice required under the FMLA. Case 6:16-cv-00087-PGB-TBS Document 23 Filed 02/01/17 Page 22 of 26 PageID 111 23 Plaintiff knew continued poor performance and additional policy violations would result in more discipline and/or termination. That Plaintiff was terminated following her request for a leave of absence is of no effect because the termination decision was made prior. See Drago v. Jennes, 453 F.3d 1301, 1308 (11th Cir. 2006) (holding in a retaliation case, “when an employer contemplates an adverse employment activity before an employee engages in protected activity, temporal proximity between the protected activity and the subsequent adverse employment action does not suffice to show causation. Because she fails to present a prima facie case of causation, [plaintiff] fails to present a prima facie case of discriminatory retaliation.”). It is undisputed Fidelity made the decision to terminate Plaintiff based on performance issues before she sought the leave of absence on January 21, 2014. Under these circumstances, Plaintiff cannot establish a causal connection between any FMLA leave request and her discharge. Accordingly, her FMLA retaliation claim fails as a matter of law. See Hall v. AT&T Mobility Servs., 2011 U.S. Dist. LEXIS 86758, at **31-32 (M.D. Fla. Aug. 5, 2011) (prior to plaintiff’s request for FMLA leave defendant informed plaintiff her sales performance was unacceptable multiple times in the form of a Counseling Notice, a Written Warning, and a Final Written Warning and, therefore, plaintiff cannot establish a prima facie case of retaliation under the FMLA. The “wheels of termination were put in motion before [plaintiff’s] request for leave, and no causal connection between her taking of FMLA leave and her termination can be inferred.”); Trabulsy v. Polk Cmty. College, 2010 U.S. Dist. LEXIS 54731 (M.D. Fla. May 3, 2010) (finding plaintiff could not demonstrate a causal connection and noting it was significant plaintiff was placed on notice of performance issues before he availed himself of his FMLA rights). 3. Plaintiff Cannot Establish Pretext. Even assuming, arguendo, Plaintiff can establish a prima facie case of FMLA retaliation Case 6:16-cv-00087-PGB-TBS Document 23 Filed 02/01/17 Page 23 of 26 PageID 112 24 (which she cannot), Plaintiff cannot establish pretext, which is only proven if “it is shown both that the reason was false, and that discrimination was the real reason behind the challenged action.” St. Mary’s Honor Center v. Hicks, 509 U.S. 502, 515 (1993). To survive summary judgment, Plaintiff must produce competent evidence calling into question not only Fidelity’s employment decisions for her reassignment to the sales assistant position in November 2013 based on complaints and subpar performance but also its decision to terminate her for continued performance issues and company employment policy violations. This she cannot do. This Court “does not sit as a super-personnel department” and cannot second-guess “the wisdom of an employer’s business decision, as long as those decisions were not made with a discriminatory motive.” Sparks, 2013 U.S. Dist. LEXIS 125756, at *45. Summary judgment is proper where a defendant offers legitimate reasons for its decisions and the employee only offers temporal proximity. See Gerard v. Bd. of Regents, 324 Fed. Appx. 818, 826 (11th Cir. 2009); Wascura v. City of S. Miami, 257 F.3d 1238, 1247 (11th Cir. 2001) (affirming summary judgment for employer where defendant offered legitimate reasons for the termination decision and employee presented virtually no evidence other than temporal proximity). Fidelity has proffered an honest explanation for Plaintiff’s reassignment and termination based on legitimate reasons, i.e., Plaintiff’s continued poor job performance and violation of company employment policies. Fidelity would have taken the same action regardless of Plaintiff’s intermittent leave and subsequent request for a leave of absence. See Dunleavy Aff. at ¶ 32. Plaintiff testified she did not know when the decision to terminate her was made, who made it or what process was used to reach the decision. See Plf. Depo. at 128:12-25; 129:1-6. Furthermore, Fidelity never indicated to Plaintiff her termination was based in any way on her request for intermittent FMLA leave or her request for a leave of absence on January 21, 2014. Case 6:16-cv-00087-PGB-TBS Document 23 Filed 02/01/17 Page 24 of 26 PageID 113 25 See id. at 129:16-18. Thus, Plaintiff cannot contradict Fidelity’s testimony that the termination decision was made based on Plaintiff’s poor performance and violation of company policy and was wholly unrelated to Plaintiff’s protected FMLA activity. See Montgomery v. Ion Media Management Co., 2011 WL 1791294, at *12 (M.D. Fla. May 10, 2011). Temporal proximity is not enough to support Plaintiff’s FMLA retaliation claim. Fidelity’s proffered reasons for reassigning and then terminating Plaintiff are non- discriminatory and reasonable, and Plaintiff cannot rebut them. It is well-settled that with respect to an “at will” employee like Plaintiff, Fidelity may fire her “for a good reason, a bad reason, a reason based on erroneous facts, or for no reason at all, as long as its action is not for a discriminatory [or retaliatory] reason.” Nix v. WLCY Radio, 738 F.2d 1181, 1187 (11th Cir.1984). Thus, summary judgment in favor of Fidelity is proper. III. CONCLUSION For the foregoing reasons, Fidelity is entitled to judgment as a matter of law on all Plaintiff’s claims and respectfully requests an Order: (i) granting this Motion; (ii) entering judgment for Fidelity and against Plaintiff on all claims against Fidelity; (iii) dismissing Plaintiff’s claims against Fidelity with prejudice; and (iv) awarding such other relief as this Court deems just and proper. Case 6:16-cv-00087-PGB-TBS Document 23 Filed 02/01/17 Page 25 of 26 PageID 114 26 Dated this 1st day of February, 2017. Respectfully submitted, LITTLER MENDELSON, P.C. 111 North Magnolia Avenue, Suite 1250 Orlando, Florida 32801 Telephone: (407) 393-2900 Facsimile: (407) 393-2929 By: /s/ Kimberly J. Doud Jeffrey B. Jones, Esquire Florida Bar No.: 0039950 Email: jbjones@littler.com Kimberly J. Doud, Esquire Florida Bar No.: 0523771 Email: kdoud@littler.com Attorneys for Defendant CERTIFICATE OF SERVICE I HEREBY CERTIFY that on this 1st day of February, 2017, I electronically filed the foregoing with the Clerk of the Court using the CM/ECF system which will send a copy via email to the following: Richard Celler, Esquire and Noah Storch, Esquire, Richard Celler Legal, P.A., 7450 Griffin Road, Suite 230, Davie, Florida 33314; richard@floridaovertimelawyer.com. /s/ Kimberly J. Doud Kimberly J. Doud, Esquire Firmwide:145567449.1 078508.1042 Case 6:16-cv-00087-PGB-TBS Document 23 Filed 02/01/17 Page 26 of 26 PageID 115