Tiffany Hughes v. Wal-Mart Stores East, LP

• Court: Court of Appeals for the Eleventh Circuit
• Decided: February 24, 2021
• Docket: 19-14863
• Status: Unpublished

Opinion

USCA11 Case: 19-14863 Date Filed: 02/24/2021 Page: 1 of 12

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 19-14863 Non-Argument Calendar ________________________

D.C. Docket No. 2:17-cv-00225-ALB-SMD

TIFFANY HUGHES,

Plaintiff-Appellant,

versus

WAL-MART STORES EAST, LP, MICHAEL R. HARRIS,

Defendants-Appellees.

________________________

Appeal from the United States District Court for the Middle District of Alabama ________________________

(February 24, 2021)

Before JORDAN, ROSENBAUM, and BRANCH, Circuit Judges.

PER CURIAM: USCA11 Case: 19-14863 Date Filed: 02/24/2021 Page: 2 of 12

Tiffany Hughes appeals from the district court’s order granting Walmart

Stores and Michael Harris summary judgment in her action, in which she asserted

that the defendants—her former employers—had retaliated against her in violation

of the Americans with Disabilities Act (ADA), 42 U.S.C. § 12101, and defamed her

in violation of Alabama law. As to her retaliation claim, she argues that the district

court erred in granting summary judgment because she established a causal

connection between several attempts to receive an accommodation for her disability

and her eventual suspension and termination. As to her defamation claim, she argues

that the district court erred in granting summary judgment because the allegedly

defamatory statement that she was “unfit” to continue working at a Walmart

pharmacy on July 6, 2016, was not a mere opinion.

For reasons explained further below, we conclude that the district court did

not err in granting summary judgment on Mrs. Hughes’ retaliation and defamation

claims. We therefore affirm.

I

Mrs. Hughes has been diagnosed with several medical disorders which limit

her fine motor skills and ability to stand for long periods of time. See D.E. 85-15 at

2. These ailments include Lupus, Ehlers Danlos Syndrome (hypermobility

syndrome), joint subluxation, muscle spasms, rheumatoid arthritis, degenerative

disk disease, unclassified connective tissue disorder, and fibromyalgia. See id. Mrs.

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Hughes first made her supervisor, Mr. Harris, aware of these conditions during a

conversation with him in February of 2015 about her potential inability to comply

with a new Walmart policy requiring certification to deliver injections by syringe

due to her medical disabilities. Mrs. Hughes alleges that this disclosure was the first

domino in a series of protected activities followed by retaliation which has led to the

current suit. See Appellant’s Brief at 4.

The second domino to fall, according to Mrs. Hughes, occurred four months

later when Mr. Harris gave her a “heads up” that she might lose her benefits because

she had been incorrectly categorized as a full-time employee. See id. In July, Mrs.

Hughes complained to Mr. Harris’ supervisor, Mr. Souers, who confirmed that she

needed more hours to retain her benefits. See id. at 5. Ms. Harris ultimately was

recategorized as part time and lost a “substantial array” of benefits. See id.

The next wave of dominos was set in motion in August of 2015, when Mrs.

Hughes complained to Mr. Harris about her change in employment status. See id.

Mr. Harris subsequently emailed Mr. Azarello, Mrs. Hughes’ pharmacy manager,

directing him to remove a stool which had been in the pharmacy for years and was

frequently used by the employees, including Mrs. Hughes. See id. Mrs. Hughes

asked Mr. Harris to reconsider and keep the stool because it helped her manage the

pain from her medical conditions. See id. Despite having the authority to allow “job

aids,” Mr. Harris declined to accommodate the request and directed Mrs. Hughes to

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make a formal request with Walmart for reasonable accommodation under the ADA.

See id. at 4–5.

Mrs. Hughes submitted a formal request for a stool on October 16, 2015.

Despite her request being approved on November 5, an OSHA—approved stool

wasn’t ordered until February of 2016, although she was allowed to use the other

stool. See id. at 6–7. In response to this delay, Mrs. Hughes lodged a complaint of

discrimination with Walmart’s Global Ethics Hotline against Mr. Harris. See id. at

6. Mr. Harris became aware of the complaint and subsequently ordered another

employee, Mr. Azarello, to write up Mrs. Hughes for failing to properly complete a

hazardous waste label. See id. Despite Mr. Azarello admitting that he had

prematurely placed the label, he received no discipline while Mrs. Hughes was

written up, resulting in an elevation of her discipline status and paid remedial

training. See id. at 7.

On January 7, 2016, Mrs. Hughes filed a charge of discrimination and

retaliation with the Equal Opportunity Employment Commission, which Mr. Harris

and Souers both learned of. See id. at 7–8. This was followed by a four-month respite

until, on May 17, 2016, Walmart Compliance contacted Mrs. Hughes to alert her

that she had yet to compete the conflict of interest form required of all pharmacy

employees. See id. at 8. Mrs. Hughes expressed reservations about her ability to

accurately complete the form and on May 25 was told by a Walmart Compliance

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representative, Ms. McCool, that she would consult with her team and get back to

Mrs. Hughes with additional instructions. See id. Unfortunately, such guidance never

arrived, and Mrs. Hughes never heard from Ms. McCool again. See id. Mr. Harris

and Souers were aware of Mrs. Hughes’ lack of compliance and exchanged several

emails with Walmart Compliance before ultimately being told on June 23 that “until

guidance is provided, no employment action related to the COI survey can be taken

against Hughes.” See id. at 9.

The next confrontation occurred one week later when Mr. Harris and Souers

decided to tour Store #483, the Walmart store at which Mrs. Hughes worked, and on

a day she was scheduled to work. Apparently having noticed Mrs. Hughes’ open-

toed shoes during the tour, Mr. Harris texted Mrs. Hughes the morning of her next

scheduled day of work and instructed her to wear close-toed shoes in compliance

with his interpretation of the Walmart dress code policy. See id. at 11. Despite

having worn open-toed shoes in the pharmacy for years, Mrs. Hughes complied and

changed into her husband’s dress shoes. See id. Unfortunately, however, the saga

did not end there, and Mr. Harris and Mrs. Hughes had a series of three escalating

confrontations over the dress code and conflict of interest form. See id. at 11–14.

The last confrontation ended with Mr. Harris telling Mrs. Hughes that she was “unfit,

“no longer in a frame of mind to safely fill prescriptions that day,” and “was going

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to be relieved of her duties for the day so that she could get into a better frame of

mind.” Id. at 13–14.

Walmart subsequently suspended Mrs. Hughes and conditioned her

reinstatement on completion and return of the conflict of interest form before July

31. See id. at 15. Walmart later added that Mrs. Hughes had to meet with Mr. Harris

or another member of leadership before returning to work or could find another

position in a different market. See id. at 15–16. Walmart formally terminated Mrs.

Hughes on September 26, 2016. Mrs. Hughes sued, resulting in the present case.

II

We review a district court’s order granting summary judgment de novo,

“viewing all evidence, and drawing all reasonable inferences, in favor of the

non-moving party.” Vessels v. Atlanta Indep. Sch. Sys., 408 F.3d 763, 767 (11th Cir.

2005). A party is entitled to summary judgment if it can show “that there is no

genuine dispute as to any material fact and [it] is entitled to judgment as a matter of

law.” Fed. R. Civ. P. 56(a). A district court, like this Court, must view the evidence

in the light most favorable to the non-moving party. See Sun Life Assurance Co. of

Can. v. Imperial Premium Fin., LLC, 904 F.3d 1197, 1207 (11th Cir. 2018).

III

Title I of the ADA prohibits discrimination against an individual on the basis

that the individual “opposed any act or practice made unlawful by [the ADA]” or

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“made a charge, testified, assisted, or participated in any manner in an investigation,

proceeding or hearing” conducted under the statute. 42 U.S.C. § 12203(a). We

assess ADA retaliation claims under the same framework as retaliation claims under

Title VII. See Standard v. A.B.E.L. Servs., Inc., 161 F.3d 1318, 1328 (11th Cir.

1998). Thus, when a plaintiff alleges retaliation under the ADA without direct

evidence of the employer’s retaliatory intent, we apply the burden-shifting

framework established in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).

See Batson v. Salvation Army, 897 F.3d 1320, 1328–29 (11th Cir. 2018).

Under this framework, the plaintiff has the initial burden to establish a prima

facie case of retaliation, and once she does, “the burden shifts to the employer to

articulate a nondiscriminatory reason for the adverse action.” Id. at 1329. “If the

employer does so, the burden shifts back to the employee to demonstrate that the

employer’s proffered reason was pretextual by presenting evidence sufficient to

permit a reasonable factfinder to conclude that the reasons given by the employer

were not the real reasons for the adverse employment decision.” Id. (quotations

marks omitted).

To establish a prima facie case of retaliation, the plaintiff must show that

(1) she engaged in a statutorily protected expression, (2) she suffered an adverse

employment action, and (3) there was a causal connection between the two. See id.

at 1328. To establish the first element, “it is sufficient that an employee have a good

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faith, objectively reasonable belief that [her] activity is protected by the [ADA].”

Standard, 161 F.3d at 1328. An employee participates in a protected activity when

she makes “a request for a reasonable accommodation.” Frazier-White v. Gee, 818

F.3d 1249, 1258 (11th Cir. 2016).

As to the causal connection requirement, a plaintiff need only demonstrate

“that the protected activity and the adverse action were not wholly unrelated.” Shotz

v. City of Plantation, Fla., 344 F.3d 1161, 1180 n.30 (11th Cir. 2003) (quotation

marks omitted, and emphasis in original). One way that a plaintiff can do so is by

providing sufficient evidence that a decision-maker was aware of the protected

activity, and that there was a close temporal proximity between this awareness and

the adverse action. See id. Absent any other evidence tending to show causation, a

claim of retaliation fails as a matter of law “[i]f there is a substantial delay between

the protected expression and the adverse action.” Higdon v. Jackson, 393 F.3d 1211,

1220 (11th Cir. 2004).

We have determined that a time interval of three to four months between the

protected activity and termination is too attenuated, as a matter of law, to satisfy the

causation element of a retaliation claim. See Thomas v. Cooper Lighting, Inc., 506

F.3d 1361, 1364 (11th Cir. 2007). Regardless, the plaintiff must prove “that the

desire to retaliate was the but-for cause of the challenged employment action.” See

Univ. of Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 352 (2013).

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Mrs. Hughes cannot rely on temporal proximity to create a jury issue on

causation because nearly six months passed between her EEOC complaint on

January 7, 2016, and the alleged retaliatory action—her suspension—on July 6,

2016. There was no other protected activity between January and July to show or

permit a finding of causation.

Temporal proximity, however, is not the only way to prove causation, and

Mrs. Hughes argues that a pattern of protected activity followed by retaliation

establishes the causation element. See Appellant’s Brief at 37–38; Goldsmith v.

Bagby Elevator Company, Inc., 513 F.3d 1261, 1277–78 (11th Cir. 2008). The

problem with this theory of causation is that the retaliation she points to falls short

of the second element of a prima facie case of retaliation. In the context of Title VII,

the Supreme Court has held that “a plaintiff must show that a reasonable employee

would have found the challenged action materially adverse, which in this context

means it well might have dissuaded a reasonable worker from making or supporting

a charge of discrimination.” Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S.

53, 68 (2006) (quotation marks omitted). Nonetheless, “[a]n employee’s decision to

report discriminatory behavior cannot immunize that employee from those petty

slights or minor annoyances that often take place at work and that all employees

experience.” Id.

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As the district court pointed out, Mrs. Hughes cannot point to any retaliation

that does not hinge on the application of a workplace rule that applies to all. See

D.E. 100 at 13. This includes the initial denial of the request for a stool and

subsequent delay, as well as other sanctions for the mislabeling of waste containers,

dress code violations, and insubordination. See Appellant’s Brief at 13–21. Although

Mrs. Hughes argues that each rule was unfairly or wrongly applied to her, the uneven

application and minimal consequences pled does not rise above the “petty slights

and minor annoyances that often take place at work.” See Burlington, 548 U.S. at

68. A pattern of the enforcement of universally applicable rules is insufficient to

show that Walmart’s proffered reasoning for her firing—her insubordination—was

pretextual and therefore fails to establish a prima facie case of discrimination. See

D.E. 100 at 14. 1

In sum, the district court did not err in granting the defendants’ summary

judgement motion as to the retaliation claim because Mrs. Hughes failed to establish

a causal connection between any protected activity and an adverse action.

Accordingly, we affirm as to the retaliation claim.

1 The defendants also argue that the mislabeling of the waste container incident cannot be considered because it was forfeited when Mrs. Hughes failed to exhaust her administrative by not including it in her EEOC complaint. See Appellee’s Brief at 28–29. Although we do not need address this argument, we have considered the incident as part of the theory of causation based on a pattern of retaliation. 10 USCA11 Case: 19-14863 Date Filed: 02/24/2021 Page: 11 of 12

IV

To establish a prima facie case of defamation under Alabama law, a plaintiff

must show that “[1] that the defendant was at least negligent [2] in publishing [3] a

false and defamatory statement to another [4] concerning the plaintiff, [5] which is

either actionable without having to prove special harm (actionable per se) or

actionable upon allegations and proof of special harm (actionable per quod).” Ex

parte Crawford Broad. Co., 904 So. 2d 221, 225 (Ala. 2004) (alteration in original).

The district court granted summary judgment against Mrs. Hughes,

concluding that Mr. Harris’ statements—describing Mrs. Hughes as “unfit” and “no

longer in a frame of mind to safely fill prescriptions that day,” and saying that she

“was going to be relieved of her duties for the day so that she could get into a better

frame of mind”—were statements of opinion accompanied by disclosed facts and so

could not constitute defamation. See D.E. 100 at 15–17; Sanders v. Smitherman, 776

So. 2d 68, 74 (Ala. 2000).

Mrs. Hughes makes a strong argument that the district court may have erred

in finding that Mr. Harris’ statements were accompanied by disclosed facts and so

should not fall under the opinion exception. See Sanders, 776 So. 2d at 74. It strikes

us as unlikely, and at a minimum a factual question, whether a bystander overhearing

these statements would be aware of the contextualizing nondefamatory facts the

district court relied on—that Mrs. Hughes had failed to complete a COI form, refused

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to leave the pharmacy, and raised her voice so that people could hear the argument.

See D.E. 100 at 17.

Although we do not necessarily agree with the district court as to the presence

of disclosed facts, we agree with the defendants that the claim alleges defamation

per quod without any special damages being proved, and that this deficiency is

sufficient to grant summary judgment. See Appellee’s Brief at 23–24. Slander per

quod is “slander founded on oral malicious defamation subjecting the plaintiff to

disgrace, ridicule, odium, or contempt,” and requires a plaintiff to allege and prove

special damages. See Delta Health Group, Inc. v. Stafford, 887 So. 2d 887, 896-97

(Ala. 2004). Viewing the well-pled facts in the light most favorable to Mrs. Hughes,

the alleged defamatory statement would not be slander per se under Alabama law,

and Mrs. Hughes has made no showing of special damages to support a slander per

quod claim. See Hayes v. Wal-Mart Stores, 953 F. Supp. 1334, 1343 (M.D. Ala.

1996). The district court did not err in granting summary judgment on the defamation

claim because Mrs. Hughes failed to present the required evidence of special

damages.

V

We affirm the district court’s grant of summary judgment in favor of

defendants on both the ADA retaliation and defamation claims.

AFFIRMED.