Lawson v. Plantation General Hospital, L.P. (704 F. Supp. 2d 1254, 2010)

ORDER

ROBIN S. ROSENBAUM, United States Magistrate Judge.

This matter is before the Court upon Defendant’s Motion for Summary Judgment (“Motion 'for Summary Judgment”). [D.E. 31, 32], The Court has carefully considered the Motion, Defendant’s Statement of Undisputed Material Facts [D.E. 33], Plaintiffs Opposition to the Motion for Summary Judgment [D.E. 48], Plaintiffs Statement of Material Facts in Dispute [D.E. 49], and Defendant’s Reply [D.E. 57], as well as the attached exhibits, deposition transcripts, and affidavits of various witnesses in this case. After a full review, the Court finds that Defendant’s Motion for Summary Judgment should be granted in part and denied in part.

BACKGROUND

On November 12, 2008, Defendant Plantation General Hospital, L.P., (“Defendant”) filed its Notice of Removal [D.E. 1] with the Court. In its Notice, Defendant indicated that Plaintiff Barbara Lawson (“Plaintiff’ or “Lawson”), had filed an action in the Circuit Court of the Seventeenth Judicial Circuit. Defendant asserted that this Court has original jurisdiction over the action pursuant to 28 U.S.C. § 1331 because the Complaint sets forth facts which, if true, would constitute a violation of federal law. Indeed, the Complaint alleges violations of Title VII of the Civil Rights Act of 1964 (“Title VII”), as amended, 42 U.S.C. §§ 2000e-2, et seq., the Family Medical Leave Act (“FMLA”), 29 U.S.C. §§ 2601, et seq., the Americans With Disabilities Act of 1990 (“ADA”), 42 U.S.C. §§ 12101, et seq., and the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. §§ 621, et seq. The Complaint also sets forth various claims under the Florida Civil Rights Act (“FCRA”) stemming from allegations of discrimination due to Plaintiffs race, age, handicap, national origin, and gender.

Plaintiff is a Black Jamaican female who suffers from sickle cell disease and who was formerly employed by Defendant as an executive secretary in the Administrative Offices of the Hospital. Plaintiff claims that following a sickle cell crisis that required hospitalization and then bed rest, Defendant involuntarily transferred Plaintiff to another position in the Hospital—as Medical Staff Administrative Assistant. Plaintiff contends that the transfer constituted a demotion and asserts that a less qualified, younger Hispanic male, Miguel Cruz, was promoted to her former executive secretary position. Following this transfer and an allegedly unfair evaluation of Plaintiff, Defendant terminated Plaintiffs employment. Plaintiff contends that Defendant’s actions were discriminatory and were made in retaliation for Plaintiffs taking of FMLA leave. Defendant responds that it did not discriminate or retaliate against Plaintiff and that it had legitimate non-discriminatory and non-retaliatory reasons for its actions. Defendant also emphasizes that Plaintiffs termination was based upon a reduction in force (“RIF”).

MATERIAL FACTS

The Court notes that it must take the facts in the light most favorable to Plaintiff, but sets forth the events from each party’s perspective so that it may establish a complete picture of the parties’ positions. Plaintiff is a Black female of Jamaican descent who suffers from sickle cell disease and who was fifty-eight years old at the time of the filing of the Motion for Summary Judgment. In September of 1995, Defendant hired Plaintiff to work as an executive secretary in the Hospital’s Administrative Offices, where she worked with the Chief Executive Officer (“CEO”), the Chief Operations Officer (“COO”), and the Chief Financial Officer (“CFO”). Plaintiff served as the Hospital’s Executive Secretary in Administration until February of 2007, when the Hospital transferred Plaintiff to its Medical Staff Office. When Plaintiff first began serving as the Executive Secretary in Administration, she reported to Pat Johnsen (“Johnsen”), Administrative Assistant to the CEO. Sometime after 1997, Plaintiff began reporting to David Hughes (“Hughes”), who was the CFO at the time.

After Hughes left the Hospital in December of 2005, Elizabeth Izquierdo (“Izquierdo”), a younger Hispanic female, became the Hospital’s new CFO. From late 2005 until late January of 2007, Plaintiff worked directly for Izquierdo and indirectly for the COO, Shana Sappington (“Sappington”). At that time, Johnsen also worked in the Administrative Office with Plaintiff, where Johnsen served as an administrative assistant to Sappington and the CEO Barbara Simmons (“Simmons”). Thus, the Administrative Office was comprised of Izquierdo, Sappinton, Simmons, and their two support staff—Plaintiff and Johnsen.

In her role as Executive Secretary in Administration, Plaintiff performed administrative duties for committees that were chaired by the CFO. Although Plaintiff assisted with other committees, the Ethics and Compliance Committee accounted for approximately 25% of Plaintiff’s work. Plaintiff also answered phones, scheduled meetings, filed, and performed clerical tasks, among other work. Plaintiff received consistently good performance reviews as well as pay raises each year that she performed her duties as Executive Secretary in Administration.

As noted previously, Plaintiff suffers from sickle cell disease, a permanent condition with which she was first diagnosed in 1972. Plaintiff asserts that sickle cell disease is a qualifying disability under the ADA and FCRA or, alternatively, that Defendant knew about the condition and perceived the disease to be a disability, or that she had a record of disability. Defendant disagrees that Plaintiffs sickle cell disease qualifies her as disabled under the ADA and FCRA. During Plaintiffs twelve years of employment at the Hospital, Plaintiff suffered at least five major sickle cell crises—in 1998, 2002, 2003, 2004, and 2006. All of the crises required hospitalization, during which Plaintiff received oxygen and pain medication, followed by bed rest. In addition to these crises, Plaintiff experienced non-major crises that required bed rest and prescription medication.

Plaintiff states that she receives ongoing treatment for her sickle cell disease. Plaintiff takes folic acid and multiple vitamins on a daily basis for her sickle cell disease, and her primary care physician, Dr. Richard McClean (“MeClean”), prescribed Darvocet for Plaintiff to take when she feels a sickle cell crisis coming on. Plaintiff also asserts that she has been prescribed Plavix, HCT2 (hydroshlorothiazide), Amlodipine for hypertension, Metaprolol for angina, and Protonix for hiatial hernia. Many of Plaintiffs conditions are complications of her sickle cell disease.

Plaintiff has a treating hematologist, Dr. Jolly Varki (“Dr. Varki”), whom Plaintiff sees approximately every six months. Although Dr. Varki’s records reflect extended periods of time during which Plaintiff is without significant symptoms, the records also reveal that Plaintiff suffers weakness, weight loss, and shortness of breath. Plaintiff indicates that she experiences joint/muscle weakness and fatigue on a daily basis. Plaintiff also states that she suffers from chronic anemia, her gall bladder has been removed, and she has a heart murmur, gout, an enlarged spleen, and elevated bilirubin, which she asserts are all complications of sickle cell disease. Plaintiff also notes that she had a stroke and continues to suffer from hypertension. In connection with her sickle cell disease, Plaintiff indicates that she must avoid stress, cannot engage in extreme physical activity such as running, and is not able to care for herself when she has a major crisis. Defendant, on the other hand, emphasizes that Plaintiff can care for herself, perform daily tasks, and work on a full time basis.

Plaintiffs last major sickle cell crisis occurred in December of 2006, when she worked for Izquierdo. During this major crisis, Plaintiff was hospitalized for ten days and then ordered to bed rest for an additional period of time before returning to work on January 15, 2007. As a result of the major crisis, Plaintiff requested and was granted FMLA leave. Plaintiff claims that this is the only time that she officially applied for FMLA leave, but Defendant asserts that Plaintiff has never been denied request for time off as a result of her illness. Both parties agree that Plaintiff has been able to work since her return to work on January 15, 2007, through April 2, 2009 (the date of her deposition).

Following Plaintiffs FMLA leave in December of 2006, she returned to her position as Executive Secretary in Administration on January 15, 2007. According to Plaintiff, within days of returning to work, Izquierdo transferred Plaintiff to another unit in the Hospital. Hospital documents reflect that effective February 4, 2007, Plaintiff was transferred from Executive Secretary in Administration to a new position as Administrative Assistant in the Hospital’s Medical Staff Office. At the same time, Miguel Cruz (“Cruz”), a younger Hispanic male, was transferred from Administrative Assistant in the Medical Staff Office to Executive Secretary in Administration. Defendant claims, however, that Plaintiffs Executive Secretary position was eliminated and when Cruz transferred into Administration, a new position was created which included Plaintiffs former job responsibilities and the additional responsibility of handling physician contracts.

Defendant asserts that Plaintiffs transfer was based on legitimate business reasons. According to CFO Izquierdo, her duties included, among other things, auditing various physician contracts. Prior to Izquierdo’s appointment as CFO, the physician contracts were handled by Plaintiffs co-worker Johnsen. After Izquiredo became the CFO, however, Cruz handled this task as part of his duties as Administrative Assistant in the Medical Staff Office. Izquierdo began working on the physician contracts with Cruz while he was assigned to Medical Staff and, although she was satisfied with Cruz’s work on the contracts, Izquierdo claims that she wanted the contracts to be handled directly in the Hospital’s Administrative Offices. Accordingly, at a weekly Administrative Staff Meeting, Izquierdo proposed that Cruz be transferred into Administration as an Executive Secretary who would also handle physician contracts and that Plaintiff be transferred in his place to the Medical Staff Office as an Administrative Assistant. Simmons, the acting CEO, approved the decision to transfer both Plaintiff and Cruz. Izquierdo admits that she never considered whether Plaintiff could perform the physician contract work.

Hospital documents reflect that, upon his transfer to the Executive Secretary position, Cruz received a merit raise and promotion. Specifically, Cruz received over a 10% pay increase once the transfer became final. Upon her transfer, Plaintiff retained the same pay, benefits, and schedule as when she was an Executive Secretary, but her title changed to Administrative Assistant. In her new position, Plaintiff kept her administrative responsibilities for the Ethics and Compliance Committee, but not for other committees with which she had previously worked. According to Plaintiff, the duties of the Executive Secretary in Administration required more analytical and interpretive skills, writing, speaking, and interpersonal skills such that a transfer from Administration to another department was perceived as a demotion. Defendant disagrees with Plaintiffs contention.

Following Plaintiffs transfer to the Medical Staff Office, she reported to Laurie Rodriguez (“Rodriguez”), the manager of the Medical Staff Office who, in turn, reported to Laurie Meyer (“Meyer”), the director of Medical Staff and Health Information Services. Meyer reported directly to Izquierdo. Other employees in the Medical Staff unit included Marisel Grana (“Grana”), the credentials coordinator, and Laurie Evans (“Evans”), a part-time medical staff coordinator who was hired after Plaintiffs transfer. The parties do not dispute that Plaintiff was not happy with the transfer.

In March of 2007, just after her transfer, Plaintiff received her annual evaluation for the calendar year of 2006, which reflected Plaintiffs performance as Executive Secretary. Although the evaluation was prepared by Izquierdo and Sapping-ton, Izquierdo had been out on maternity leave from May of 2006 through August or September of 2006, and in her absence, Sappington served as Plaintiffs supervisor. The March, 2007, evaluation indicated that Plaintiff had performed well in her role as Executive Secretary. The parties agree that Plaintiff received a pay increase shortly thereafter, but Defendant contends that the raise was made in connection with the March, 2007, evaluation, and Plaintiff claims that the pay increase resulted from an adjustment in the range of her pay by Human Resources.

Plaintiff worked in her new role in Medical Staff from early February of 2007 until she was terminated nine months later on October 19, 2007. Although the parties do not dispute this fact, they do debate greatly Plaintiffs job function while in Medical Staff. Defendant contends that Plaintiffs duties were essentially the same as before her transfer—she provided administrative support to the office, performed clerical tasks, ordered supplies, filed, and handled correspondence and communications. In this regard, Defendant emphasizes that Plaintiff continued to perform her administrative responsibilities for the Hospital’s Ethics and Compliance Committee.

Plaintiff, on the other hand, asserts that she spent the majority of her time filing in Medical Staff and did not prepare correspondence as she had done in Administration. And, although Plaintiff acknowledges that she continued to work on the Ethics and Compliance Committee, she states that she no longer performed administrative duties for the other committees with which she had previously worked.

In early July of 2007, Rodriguez and Meyer met with Plaintiff and presented her with a 90-Day Evaluation (“the Evaluation”) with respect to her performance in the Medical Staff Office. The Evaluation indicated that Plaintiff met expectations in many areas, but also rated Plaintiff as inconsistent in other areas. For example, one of the criticisms listed in the Evaluation stated that Plaintiff showed an unwillingness to assist Izquierdo in completing meeting minutes for the Ethics and Compliance Committee. According to Plaintiff, the inclusion of this criticism reveals that Meyer consulted with Izquierdo prior to issuing the Evaluation. At this time, Rodriguez and Meyer provided Plaintiff with a Performance Improvement Plan (“PIP”) that set forth the areas in which Plaintiff needed to improve and asked Plaintiff to prepare a response that would map out Plaintiffs plan to address each area of perceived deficiency. Plaintiff felt that the evaluation and PIP were unfair, not reflective of her job performance, and completely contrary to all other evaluations she had received while employed at the Hospital. Plaintiff also emphasizes that during this same time frame, Rodriguez told Plaintiff that Rodriguez was asked to “find stuff to write about [Plaintiff].”

Plaintiff drafted and submitted various versions of her response to the PIP, with the first two responses being deemed insufficient. Indeed, after Plaintiff submitted her first response, the Vice President of Human Resources, Ben Bittner (“Bittner”), met with Plaintiff to discuss the PIP and Plaintiffs response. During the meeting, at which Rodriguez and Meyer were also present, Bittner asked Plaintiff to go back and attempt to further develop her response. Sensing Plaintiffs frustration with her new position and performance evaluation, as an alternative to continuing her employment in the Medical Staff unit, Bittner offered Plaintiff a severance package. Plaintiff, however, responded that she did not wish to accept a severance package. Subsequently, Plaintiff drafted a revision to her response, which was also deemed unsatisfactory, but then provided a final response to the PIP dated August 23, 2007, which Bittner deemed to be sufficient. After Plaintiff submitted her final response, her supervisors noted that Plaintiffs performance had improved.

Less than two months later, on October 19, 2007, Defendant terminated Plaintiffs employment, at which time Bittner explained to Plaintiff that her position had been eliminated as a result of a reduction in force (“RIF”). Defendant set Plaintiffs effective date of termination as November 2, 2007, which allowed Plaintiff to enjoy the continuation of benefits through the end of November. Plaintiff also received twelve weeks of severance pay.

Although the parties agree that Plaintiffs employment was terminated, they dispute the reasons for the termination. Defendant claims that in the fall of 2007, the Hospital’s East Florida Division Office directed the CEO, CFO, and COO to reduce its workforce by either five or six full-time employees. Izquierdo stated that this reduction was necessitated by budgetary concerns and a drop in patient census. According to Defendant, the Administration (Izquierdo, Sappington, and Simmons) reviewed each department to determine which was over-staffed or under-staffed, and then the Administration met with Bittner to discuss each individual identified for termination. The team determined that Plaintiffs duties in Medical Staff could be allocated to the other two employees in that unit (ie., Grana and Evans). Defendant asserts that both Grana and Evans were capable of carrying out the clerical duties of Plaintiffs position, but that Plaintiff had not been trained in the job functions of Grana and Evans’s positions; hence, her position could be eliminated. Defendant contends that Plaintiffs position was eliminated, that no one replaced her, and that no other positions in the office were available at the time of her elimination.

Plaintiff disputes that her termination resulted from a RIF and asserts that the reason given by Defendant was a pretext for discrimination and retaliation. Plaintiff points to the fact that four other individuals were terminated along with Plaintiff and that three of the five employees were Black and none were Hispanic. Additionally, Plaintiff emphasizes that four of the five individuals terminated were substantially over the age of forty, and four had taken FMLA leave more than once within the prior two years. Also significant to Plaintiff is the fact that those who allegedly took over Plaintiffs duties (Grana and Evans) are non-Black employees who are substantially younger than Plaintiff.

Plaintiff further notes that the utilization reports upon which Defendant claimed it relied to impose the RIF, do not support the elimination of Plaintiffs position because the reports reveal that Medical Staff was not over-staffed. Instead, Plaintiff notes that the September 30, 2007, report reveals that while the target hours for the department were 618 hours, the actual hours used amounted to only 595.25. Likewise, the utilization report for October 31, 2007, shows that the target hours for Medical Staff was 662.40 and the actual hours used totaled 589.75. Plaintiff also emphasizes that the November, 2007, utilization report shows that the target hours of Medical Staff were lowered to 457.60 hours, while the target hours for other departments with reduced positions remained approximately the same. Plaintiff further states that at the time that her position was eliminated, the Hospital was hiring for other positions, but Plaintiff was not offered another position. Finally, although Cruz later resigned his employment with the Hospital in December of 2007 (two months after Plaintiffs termination) and Defendant advertised the Executive Secretary position as vacant, it did not contact Plaintiff to fill the position.

ANALYSIS

A. Summary Judgment Standard

Summary judgment is appropriate “if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). Not any factual dispute will defeat a motion for summary judgment; rather, “the requirement is that there be no genuine issue of material fact.” Scott v. Harris, 550 U.S. 372, 380, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007) (emphasis in original). An issue is genuine if “a reasonable trier of fact could return judgment for the non-moving party.” Miccosukee Tribe of Indians of Fla. v. U.S., 516 F.3d 1235, 1243 (11th Cir.2008) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). A fact is material if “it would affect the outcome of the suit under the governing law ....” Id. (quoting Anderson, 477 U.S. at 247-48, 106 S.Ct. 2505).

Following a motion for summary judgment, the Court views the evidence, including all reasonable inferences drawn from it, in the light most favorable to the non-moving party, and resolves all reasonable doubts against the movant. Lee v. Ferraro, 284 F.3d 1188 (11th Cir.2002); Johnson v. City of Mobile, 321 Fed.Appx. 826, 830 (11th Cir.2009). Further, the Court will not weigh conflicting evidence. Skop v. City of Atlanta, 485 F.3d 1130, 1140 (11th Cir.2007), reh’g and reh’g en banc denied, 254 Fed.Appx. 803 (11th Cir.2007). Thus, upon discovering a genuine dispute, the Court promptly will deny summary judgment. Id.

The moving party shoulders the initial burden of showing the absence of a genuine issue of material fact. Shiver v. Chertoff, 549 F.3d 1342, 1343 (11th Cir.2008). Once the moving party satisfies this burden, “the nonmoving party ‘must do more than simply show that there is some metaphysical doubt as to the material facts.’ ” Ray v. Equifax Info. Servs., L.L.C., 327 Fed.Appx. 819, 825 (11th Cir.2009) (quoting Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)). Instead, “the non-moving party ‘must make a sufficient showing on each essential element of the case for which he has the burden of proof.’ ” Id. (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)). Accordingly, the non-moving party must produce evidence, going beyond the pleadings, and by his own affidavits, or by depositions, answers to interrogatories, and admissions on file, designate specific facts suggesting that a reasonable jury could find in his favor. Shiver, 549 F.3d at 1343.

B. The McDonnell Douglas Burden Shifting Analysis

Here, where no direct evidence of discrimination exists, Plaintiff may establish her prima facie claims of discrimination and retaliation through circumstantial evidence. In evaluating whether a plaintiff has set forth a prima facie case of discrimination or retaliation through the use of circumstantial evidence, the Eleventh Circuit has applied the burden-shifting approach articulated in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Under the McDonnell Douglas framework, a plaintiff must first demonstrate a prima facie case of discrimination or retaliation, which creates a presumption that the employer discriminated or retaliated against her. Curtis v. Broward County, 292 Fed.Appx. 882, 883 (11th Cir.2008) (citing Brooks v. County Comm’n of Jefferson County, Ala., 446 F.3d 1160, 1162 (11th Cir.2006)); Holifield v. Reno, 115 F.3d 1555 (11th Cir.1997).

Where the plaintiff establishes a prima facie case of discrimination or retaliation, the burden shifts to the defendant to come forward with evidence of a legitimate, nondiscriminatory (or non-retaliatory) reason for the challenged adverse employment action, which rebuts the presumption of discrimination (or retaliation). Id. at 1564, Pennington v. City of Huntsville, 261 F.3d 1262, 1266 (11th Cir.2001) (citing Olmsted v. Taco Bell Corp., 141 F.3d 1457, 1460 (11th Cir.1998)); Brown v. Chertoff, 563 F.Supp.2d 1372, 1378 (S.D.Ga.2008). If the defendant meets this burden of production, the burden then shifts back to the plaintiff to establish that the defendant’s proffered reasons are merely pretext for the employer’s discriminatory and retaliatory actions. Id. In other words, Plaintiff must come forward with evidence “sufficient to permit a reasonable fact finder to conclude that the reasons given by the employer were not the real reasons” for the employment action. Perrero v. Spectacor Mgmt. Group, 308 Fed.Appx. 327, 329 (11th Cir.2009) (quoting Chapman v. A.I. Transport, 229 F.3d 1012, 1024 (11th Cir.2000)).

C. Plaintiff’s FMLA Retaliation Claim

The FMLA provides an eligible employee up to a total of twelve weeks of unpaid leave in any one-year period “[b]e-cause of a serious health condition that makes the employee unable to perform the functions of the position of such employee.” 29 U.S.C. § 2612(a); Parris v. Miami Herald Publishing Co., 216 F.3d 1298, 1301 (11th Cir.2000). The FMLA creates two types of claims: interference claims, in which the employee asserts that his employer denied or otherwise interfered with his substantive rights, and retaliation claims, in which the employee contends that her employer discriminated against her because she engaged in a protected activity. 29 U.S.C. § 2615(a)(1) and (2); Martin v. Brevard County Public Schools, 543 F.3d 1261 (11th Cir.2008); Hurlbert v. St. Marys Health Care System, Inc., 439 F.3d 1286, 1293 (11th Cir.2006); Wascura v. City of South Miami, 257 F.3d 1238 (11th Cir.2001).

In her Complaint, Plaintiff asserts only a claim for FMLA retaliation. To successfully make a claim for FMLA retaliation, Plaintiff must demonstrate the following: (1) she engaged in statutorily protected conduct; (2) she suffered an adverse employment action; and (3) a causal connection exists between the protected activity and the adverse employment action. Martin, 543 F.3d at 1268; Hurlbert, 439 F.3d at 1297. Where Plaintiff establishes a retaliation case without direct evidence of the employer’s retaliatory intent, the burden-shifting framework set forth in McDonnell Douglas applies. Martin, 543 F.3d at 1268.

In this case, no dispute exists that Plaintiff engaged in statutorily protected activity by taking medical leave pursuant to the FMLA. Hence, Defendant concedes for purposes of its Motion for Summary Judgment that the first prong of Plaintiffs prima facie case is met. Defendant claims that Plaintiffs retaliation claim fails, however, because Plaintiff cannot show that she suffered an adverse employment action and cannot demonstrate a causal connection between any alleged adverse employment action and her medical leave.

1. Adverse Employment Action

Defendant argues that Plaintiffs transfer to the Medical Staff Office was not an adverse action because the job reassignment was not material and significant, but rather, was a lateral transfer. According to Defendant, Plaintiffs position in Medical Staff was virtually the same as her prior job as an Executive Secretary in Administration. Defendant emphasizes that Plaintiff retained the same pay, benefits, schedule, and hours. Plaintiff also retained her responsibilities with respect to the Hospital’s Ethics and Compliance Committee. Defendant argues that transfers are not considered materially adverse where the plaintiff produces no objective evidence to support a loss of prestige. Because Plaintiff cannot show an adverse employment action, Defendant contends that Plaintiffs retaliation claim must fail.

Plaintiff disagrees and contends that a genuine issue of material fact exists regarding whether Plaintiffs transfer constituted a demotion or adverse employment action. In this respect, Plaintiff points out that Cruz’s transfer from Medical Staff to Executive Secretary in Administration came with a considerable raise, and the Hospital referred to the transfer as a “promotion.” Additionally, Plaintiff argues that reassignment of job duties can be considered an adverse employment action when the new responsibilities fall within the same job description. In support of this position, Plaintiff cites to Doe v. Dekalb County School Dist., 145 F.3d 1441, 1448 (11th Cir.1998), in which the Eleventh Circuit stated, “Where a plaintiff has allegedly suffered termination, demotion, reduction in pay, loss of prestige, or diminishment in responsibilities ... a court normally has no cause to consider its standard for adversity; the relevant question is whether such potentially adverse actions took place.” Based on Doe, Plaintiff asserts that a genuine issue of material fact exists as to whether Plaintiff suffered a loss of prestige or diminishment of responsibilities sufficient to constitute an adverse employment action. According to Plaintiff, a perception at the Hospital existed that being transferred from Administration to another department was a demotion and that Plaintiffs prior duties in Administration required more skill than her new Medical Staff position. Finally, Plaintiff emphasizes that although the Hospital allowed her to continue her work with the Ethics and Compliance Committee, she had also been previously responsible for the administration of other committees.

The Court finds that a genuine issue of material fact exists as to whether Plaintiffs transfer from Administration to Medical Staff constitutes an adverse employment action. Eleventh Circuit precedent makes it clear that acts other than “ultimate employment actions” (ie., termination) may constitute adverse employment actions. Wideman v. Wal-Mart Stores, Inc., 141 F.3d 1453, 1456 (citing demotions, disadvantageous transfers or assignments, refusals to promote, unwarranted negative job evaluations as examples of adverse employment actions). As noted by both parties, reassignment of job duties is not automatically actionable, but depends instead upon the circumstances of the particular case and “should be judged from the perspective of a reasonable person in plaintiffs position, considering ‘all the circumstances.’ ” Burlington Northern and Santa Fe Railway Co. v. White, 548 U.S. 53, 71, 126 S.Ct. 2405, 165 L.Ed.2d 345 (2006) (citations omitted).

Here, a reasonable person in Plaintiffs position could regard the transfer as adverse. Although Plaintiff did not suffer a reduction in pay and her work assignment was similar to that of her prior position, it was not the same. Indeed, Plaintiff testified during her deposition that she devoted approximately 25 percent of her time to the Ethics and Compliance Committee when she was in Administration, and yet when she transferred to Medical Staff, she spent about 15 percent of her time in this role. Plaintiff also emphasized that Ethics and Compliance was just one of the committees that she handled. Overall, the committees to which she devoted her time in Administration comprised about 80 percent of her work duties. Although Defendant notes that Plaintiff continued to work with the Ethics and Compliance Committee, it fails to acknowledge that her work with other committees did not follow Plaintiff to her new position. It appears that Plaintiffs role with respect to the administration of various committees changed dramatically when it went from 80% of her work duties to 15%.

This case differs significantly from Polite v. Dougherty County School System, 314 Fed.Appx. 180 (11th Cir.2008), a case in which a teacher was transferred to a different school after complaining about alleged discriminatory hiring practices. In Polite, the Court found that the plaintiff suffered no adverse employment action because his teaching job after the transfer involved the same responsibilities and the same pay. Id. at 183-184. Although Defendant likens the facts of Polite to this case, the Court disagrees. As noted above, Plaintiff did not retain all of her responsibilities after her transfer to Medical Staff. At a minimum, Plaintiff stopped working with many of the committees on which she had worked previously. Plaintiffs role also changed in that she no longer worked with the executives in Administration. These facts distinguish this case from Polite.

Additionally, the Court notes that Cruz received a pay raise when he transferred into Administration. Significantly, the Hospital regarded Cruz’s change in position as a “promotion,” as noted on his transfer form. In its Motion for Summary Judgment, Defendant argues that transfers are not materially adverse where a plaintiff produces no objective evidence to support a loss of prestige argument. Further, Defendant contends that although Plaintiff may have subjectively believed that she was transferred to a less prestigious position, this belief alone fails to meet the reasonable person standard set forth in Burlington. While the Court agrees that Plaintiffs belief alone may not meet the reasonable person standard set forth in Burlington, the Hospital’s view of Cruz’s transfer as a “promotion” provides support for Plaintiffs argument that the position in Administration was regarded by the Hospital as a more desirable position. And, as the Supreme Court recognized in Burlington, an adverse action may exist where a transfer occurs and a plaintiffs prior job was more prestigious. Burlington, 548 U.S. at 71-72, 126 S.Ct. 2405.

The Court also agrees with Plaintiff that Deprado v. City of Miami, 264 Fed.Appx. 769 (11th Cir.2008), cited by Defendant, is distinguishable from the facts of this case. In Deprado, a police officer claimed that the city retaliated by transferring him to a different unit after he had engaged in activity protected by the First Amendment. The Court found that the transfer did not amount to an adverse action because the plaintiff “offered no evidence that the Patrol Unit position was more arduous or required more qualifications, or that anyone besides [plaintiff] objectively considered it a better job.” Id. at 772. In contrast, the instant matter involves a situation where there is evidence that the Hospital itself regarded the transfer to Administration as a promotion. Thus, evidence exists in this case that suggests that someone besides Plaintiff considered her prior job to be more prestigious. For these reasons, the Court finds that a genuine issue of material fact exists as to whether Plaintiffs transfer from Administration to Medical Staff constitutes an adverse action.

Moreover, although the parties do not emphasize it in their briefs, the Hospital ultimately terminated Plaintiffs employment. Obviously, this constitutes an adverse employment action.

2. Causal Connection

Defendant next contends that Plaintiffs retaliation claim must fail because, even assuming that an adverse employment action took place, no causal connection exists between the protected activity (i.e., the FMLA leave) and the adverse action. In this regard, Defendant points out that Plaintiffs termination occurred nine months after her FMLA leave ended, which was eight months after her transfer to Medical Staff. Defendant asserts that this lapse of time is too great to allow an inference of unlawful retaliation. Consequently, Defendant seeks for the Court to enter summary judgment against Plaintiff on her retaliation claim because she cannot show a close temporal proximity between the protected activity and the adverse action.

Plaintiff, on the other hand, argues that close temporal proximity is not the only way to prove causation in a retaliation case. In this matter, Plaintiff points to additional evidence such as the fact that other employees who had taken FMLA leave were terminated at the same time as Plaintiff. Additionally, Plaintiff asserts that her FMLA leave and termination are temporally connected by a chain of intervening retaliatory acts such that a causal connection is established. For instance, Plaintiff emphasizes that she returned from FMLA leave on January 15, 2007, and her transfer to Medical Staff became effective on February 4, 2007—a mere two weeks later. Next, at her three-month performance review, Plaintiff received unfavorable comments in several areas of her new position. Plaintiffs supervisors then sought for Plaintiff to file a response to the PIP, requiring Plaintiff to compose several drafts indicating how Plaintiff intended to correct her allegedly insufficient job performance. These drafts were submitted over time until a final draft was accepted. Moreover, Plaintiff indicated that during this same time frame, Rodriguez confided in Plaintiff that Rodriguez was asked to “find stuff to write about Plaintiff.” Finally, in late August of 2007, Bittner accepted Plaintiffs PIP. Ultimately, however, in October of 2007, Defendant terminated Plaintiff based on the advice of Izquierdo and the Administrative team. According to Plaintiff, all of these events provide sufficient indicia of a causal connection.

Despite the fact that a jury may ultimately agree with Defendant, the Court concludes that there is a genuine issue of material fact regarding whether a causal connection exists between Plaintiffs FMLA leave and her transfer and then termination. Although Defendant denies a causal connection, the Eleventh Circuit has established that the causal link element is to be construed broadly. In this regard, a plaintiff “merely has to prove that the protected activity and the negative employment action are not completely unrelated.” Pennington, 261 F.3d at 1266. (citing Olmsted, 141 F.3d at 1460) (quoting EEOC v. Reichhold Chem., Inc., 988 F.2d 1564, 1571-72 (11th Cir.1993)). Put another way, the causal connection prong requires Plaintiff to show that “the decision-makers were aware of the protected conduct, and that the protected activity and the adverse action were not wholly unrelated.” Curtis v. Broward County, 292 Fed.Appx. 882, 885 (11th Cir.2008) (citations omitted).

With respect to Plaintiff’s selection for transfer to Medical Staff, the temporal proximity.to her protected activity is significant. Indeed, Plaintiffs transfer to the unit occurred only two weeks after she returned to the Hospital from her FMLA leave. Eleventh Circuit case law has made it clear that close temporal proximity between the protected activity and the adverse action may suffice to establish a causal connection. Bass v. Board of County Com’rs, Orange County, Fla., 256 F.3d 1095, 1119; Curtis, 292 Fed.Appx. at 885 (citing Thomas v. Cooper Lighting, Inc., 506 F.3d 1361, 1364 (11th Cir.2007)). “Where a plaintiff seeks to establish a causal connection through temporal proximity, the temporal proximity must be ‘very close[.]’ ” Curtis, 292 Fed.Appx. at 885 (quoting Clark County School Dist. v. Breeden, 532 U.S. 268, 273, 121 S.Ct. 1508, 149 L.Ed.2d 509 (2001)). Here, the temporal proximity is extremely close.

Likewise, the decision to terminate Plaintiffs employment at the Hospital presents similar questions of fact that must be resolved by a jury, particularly when those facts are viewed in the light most favorable to Plaintiff. As noted by Plaintiff, other events occurred between the transfer and the termination that could be construed as evidence of a causal link. See Wideman, 141 F.3d at 1455 (listing a series of adverse events after that occurred after plaintiff filed EEOC charge). During Plaintiffs three-month review, Plaintiff received numerous negative remarks on her performance evaluation, whereas in her prior twelve-year tenure with the Hospital, Plaintiff had received positive evaluations. Additionally, after Plaintiff received the negative performance evaluation, Bittner told Plaintiff that if she was unhappy with the transfer, she could simply accept a severance package and leave the Hospital. Both of these actions could be seen as an attempt by the Hospital to force Plaintiff out. This is true particularly in light of Rodriguez’s alleged comment that she was asked to “find stuff to write about Plaintiff.”

Moreover, when asked to, Plaintiff prepared a number of responses to the PIP, with the first few being rejected by Bittner. It was only when Plaintiff submitted her last response in August of 2007, that she was deemed to have complied with Bittner’s request. Finally, it is undisputed that other employees terminated at the same time as Plaintiff had taken FMLA leave on more than one occasion during the two years prior to their termination. Although the Hospital has come forth with other reasons for these employees’ termination, the Court must take these facts in the light most favorable to Plaintiff. For all of the reasons set forth herein, the Court declines to find that no genuine issue of fact exists as to whether Plaintiff can show a causal connection between her FMLA leave and her termination. The Court is aware that Defendant has cited to Clark in support of its argument in favor of summary judgment, but this is simply not a case where Plaintiff relies merely on the timing of Defendant’s actions.

In sum, because the Court finds that material issues of fact exist as to whether there is a causal connection between Plaintiffs FMLA leave, her selection for transfer to Medical Staff and her ultimate termination, Defendant’s Motion for Summary Judgment must be denied. Taking the facts in the light most favorable to Plaintiff, a jury could find that Plaintiff has successfully established a prima facie case of retaliation. Indeed, the Court notes the relatively low threshold necessary to demonstrate the causal connection element of a prima facie case of retaliation and finds that a reasonable jury could conclude that the protected activity and the adverse action were not wholly unrelated. Accordingly, under McDonnell Douglas and its progeny, the burden shifts to Defendant to set forth a legitimate, non-retaliatory reason for its alleged adverse employment actions. See Section F infra.

D. Establishing a Prima Facie Case of Disability Discrimination

1. Applicability of ADAAA

The parties dispute the applicable standard for Plaintiffs disability claims. While Plaintiff asserts that the January 1, 2009, amendments to the ADA (referred to as the “ADAAA”) apply to Plaintiffs case, Defendant contends that the ADAAA does not apply retroactively and, therefore, does not govern this ease. After careful review, the Court agrees with Defendant that the ADAAA does not apply to Plaintiff because her claims stem from acts that occurred prior to January 1, 2009.

Due to the absence of congressional intent to give the amendments retroactive effect, courts addressing the issue have held that the ADAAA does not apply retroactively. Plaintiff is correct, however, that the Eleventh Circuit has not determined whether the ADAAA applies retroactively. In Shannon v. Potter, 335 Fed.Appx. 21, 25 n. 5 (11th Cir.2009), while finding it unnecessary to address the question, the court noted the lack of Eleventh Circuit published opinion on the issue. Prior to the Shannon decision, however, in another unpublished per curiam decision, the Eleventh Circuit suggested that the ADAAA does not apply retroactively. Fikes v. Wal-Mart, Inc., 322 Fed.Appx. 882, 883 n. 1 (11th Cir.2009). In Fikes, the court, in a footnote, stated,

Plaintiff makes no argument that the amendments should apply retroactively; and absent Congressional expression to the contrary, a presumption against retroactive application applies when the new legislation would “impair rights a party possessed when he acted, increase a party’s liability for past conduct, or impose new duties with respect to transactions already completed.” Landgraf v. USI Film Products, 511 U.S. 244, 114 S.Ct. 1483, 1505, 128 L.Ed.2d 229 (1994). So, we look to the ADA as it was in effect at the time of the alleged discrimination.

Id. at 883, n. I.

Likewise, other Courts have held that the ADAAA should not be applied retroactively. Milholland v. Sumner County Bd. of Educ., 569 F.3d 562, 565-66 (6th Cir.2009); Kiesewetter v. Caterpillar, Inc., 295 Fed.Appx. 850, 851 (7th Cir.2008); EEOC v. Agro Distr., LLC, 555 F.3d 462, 469 n. 8 (5th Cir.2009). Indeed, the Fifth Circuit determined in a published opinion that the amendments contained in the ADAAA “do not apply retroactively.” Id. Similarly, the Sixth Circuit in a published opinion, discussed the applicability of the ADAAA. Specifically, in Milholland v. Sumner County Bd. of Educ., 569 F.3d 562 (6th Cir.2009), the court found that the ADAAA did not govern the case because “its application would have the type of impermissibly retroactive effect that requires a clearly-stated congressional intent.” Id. at 565. The Sixth Circuit noted that the conduct at issue in the case occurred before the ADAAA became effective and, “Congress did not ‘expressly prescribe []’ whether the statute should reach back to cover this conduct.” Id. at 566 (quoting Landgraf, 511 U.S. at 273, 114 S.Ct. 1483). Although the court recognized that Congress enacted the ADAAA to reinstate a broad scope of protection to be available under the ADA, it found that Congress’s intent to “restore” protections “does not by itself, reveal whether Congress intends the [ADAAA] to apply retroactively.” Id. (citations omitted). Finally, the court noted that the ADAAA, if applied retroactively, “attaches new legal consequences to events completed before its enactment” and, therefore, concluded that the ADAAA does not apply retroactively to pre-amendment conduct. Id. at 567.

Additionally, as noted by Defendant, the EEOC’s Notice of Proposed Rulemaking under the ADAAA (dated September 29, 2009) states that the EEOC takes the position that “[t]he ADAAA does not apply retroactively.” The Notice further explains that the ADAAA would not apply to a situation in which an employer allegedly failed to hire, terminated, or denied a reasonable accommodation to someone with a disability as late as December of 2008. See http://eeoc.gov/policy/docs/qandEL_ adaaajiprm.html.

In contrast, as noted by Plaintiff, the Ninth Circuit in Rohr v. Salt River Project Agricultural Imp. & Power Dist., 555 F.3d 850, 853 (9th Cir.2009), relied upon the ADAAA in its analysis in a reversal of summary judgment in favor of the employer. The Rohr court discussed the ADAAA because it shed light on Congress’s original intent when Congress enacted the ADA, but Rohr did not expressly decide whether the ADAAA applied retroactively to the plaintiffs claims. Id. at 853.

Plaintiff also relies on an unpublished Sixth Circuit decision decided prior to Milholland, in which the court concluded that the ADAAA applied retroactively to claims that seek prospective relief. Jenkins v. National Bd. of Medical Examiners, — Fed.Appx.—,—, 2009 WL 331638 at *1 (6th Cir. Feb. 11, 2009). In Jenkins, a medical student sought additional time on a licensing examination as an accommodation for a diagnosed reading disorder. Id. at-, at *1. The district court found that the plaintiff did not qualify as disabled under the ADA, but the Sixth Circuit, on appeal, remanded that case for further consideration in light of the ADAAA because the appeal was pending when the ADAAA became effective. Id. Because the case involved prospective relief and was pending when the amendments became effective, the Court found that the ADAAA must be applied. Id.

The Court finds that Rohr and Jenkins are not applicable to the facts of this case. First, the Ninth Circuit in Rohr did not decide the issue of whether the ADAAA applies retroactively. Second, although the Court in Jenkins concluded that it would apply the ADAAA retroactively, the holding is limited to the facts of that case—where the plaintiffs claims sought prospective injunctive relief {i.e., an accommodation on a test that would occur in the future). Indeed, the court in Jenkins acknowledged that because the plaintiff sought prospective relief, no injustice would result from applying the ADAAA. Id. In the instant case, Plaintiff does not seek relief for an event that has not yet happened and, therefore, the reasoning of Jenkins does not apply to this case.

Based on the foregoing, the Court will follow the principle set forth in Agro, Milholland, and Fikes that the ADAAA does not apply retroactively. Accordingly, the Court will analyze Plaintiffs disability claim under the ADA.

2. The ADA and FCRA Claims for Disability Discrimination

Counts II and III allege claims under the FCRA and ADA for disability discrimination relating to Plaintiffs sickle cell disease. The ADA prohibits covered employers from discriminating “against a qualified individual with a disability because of the disability of such individual in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment.” 42 U.S.C. § 12112(a); Earl v. Mervyns, Inc., 207 F.3d 1361; 1365 (11th Cir.2000). Congress enacted the ADA “to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities.” Harris v. H & W Contracting Co., 102 F.3d 516 (11th Cir.1996).

To assert a claim for disability discrimination successfully, Plaintiff must demonstrate that (1) she has a disability; (2) she is a “qualified individual” for the position; and (3) Defendant unlawfully discriminated against her because of the disability. 42 U.S.C. §§ 12112(a); Raytheon Co. v. Hernandez, 540 U.S. 44, 49 n. 3, 124 S.Ct. 513, 157 L.Ed.2d 357 (2003); D’Angelo v. ConAgra Foods, Inc., 422 F.3d 1220, 1225-26 (11th Cir.2005). A plaintiff must also show that the employer has actual or constructive knowledge of the disability or considered the employee to be disabled. Gordon v. E.L. Hamm & Associates, Inc., 100 F.3d 907, 910 (11th Cir.1996). As with a claim for retaliation, if Plaintiff can establish a prima facie case, the burden then shifts to Defendant to articulate a legitimate, nondiscriminatory reason for the adverse employment action. Raytheon, 540 U.S. at 49 n. 3, 124 S.Ct. 513; Hilburn v. Murata Elec. N. Am., Inc., 181 F.3d 1220, 1226 (11th Cir.1999). If the employer is able to meet its burden of production, the employee may still prevail on her claims if she can demonstrate that the employer’s reason is pretextual. Id. Here, Defendant asserts that it is entitled to summary judgment because Plaintiff cannot establish that she has a disability under the ADA.

a. Is Plaintiff Disabled under the ADA?

A person is considered to be disabled under the ADA if he or she has “(A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual; (B) a record of such an impairment; or (C) [is] regarded as having such an impairment.” 42 U.S.C. 12102(2); Harris v. H & W Contracting Co., 102 F.3d 516 (11th Cir.1996). A plaintiff is deemed to be “disabled” for ADA purposes if he or she satisfies any one of these three definitions. Gordon, 100 F.3d at 911. Considering whether a person is disabled under subsection (A) involves three steps. First, the Court considers whether the individual suffers from an impairment. Bragdon v. Abbott, 524 U.S. 624, 631, 118 S.Ct. 2196, 141 L.Ed.2d 540 (1998). Next, the Court must identify the life activity upon which the plaintiff relies and then determine whether it constitutes a major life activity under the ADA. Id. Finally, the Court determines whether the impairment “substantially” limits the major life activity. Id.

With respect to the first step, the ADA does not define “impairment,” but courts have sought guidance from the EEOC regulations commenting on Title I of the ADA. These regulations provide that a “physical impairment” is any “physiological disorder, or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the following body systems: neurological, musculoskeletal, special sense organs, respiratory (including speech organs), cardiovascular, reproductive, digestive, genito-urinary, hemic, and lymphatic, skin and endocrine.” 29 C.F.R. § 1630.2(h)(1). Although Defendant disputes that Plaintiff is “disabled” for purposes of her ADA claim, Defendant does not appear to contest that Plaintiff suffers from an impairment. Instead, Defendant argues that Plaintiffs sickle cell disease does not substantially limit a major life activity. In this regard, Defendant emphasizes that “[a] physical impairment, standing alone ... is not necessarily a disability as contemplated by the ADA.” Gordon, 100 F.3d at 911. (citations omitted). Instead, the ADA requires that the impairment limit one or more of the individual’s major life activities. Id.

b. Substantial Limitation of a Major Life Activity

The determination of whether a person is disabled is made on a case-by-case basis and “is not necessarily based on the name or diagnosis of the impairment the person has, but rather on the effect of that impairment on the life of the individual.” Sutton v. United Air Lines, Inc., 527 U.S. 471, 483, 119 S.Ct. 2139, 144 L.Ed.2d 450 (1999), superceded by statute. With this in mind, the Court reviews how Plaintiffs sickle cell disease affects her life, particularly any of her “major life activities.”

The ADA does not define the phrase “major life activity,” but EEOC regulations explain that they include basic activities that the average person in the general population can perform with little or no difficulty. 29 C.F.R. § 1630.2(i). Major life activities include functions such as “caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working.” 29 C.F.R. § 1630.2Q); DAngelo, 422 F.3d at 1226-27. Although the list provides examples of major life activities, it is not exhaustive. See Bragdon, 524 U.S. at 638, 118 S.Ct. 2196. Here, it is not exactly clear which “major life activity” Plaintiff asserts has been substantially limited by her sickle cell disease, but, it appears that Plaintiff intends to assert the major life activity of caring for herself (and possibly working). Although, in its Motion for Summary Judgment, Defendant asserts that Plaintiff failed to identify any major life activity affected by her illness, in its Reply, it acknowledges that in Plaintiffs Statement of Disputed Facts, she contends that she is not able to care for herself. Plaintiffs Statement of Disputed Facts references her deposition testimony in which she answered in the affirmative when asked “do you have any limitations on your ability to care for yourself or function on a daily basis as a result of being afflicted with this disease?” See Pltff depo at p. 48. Accordingly, taking the facts in the light most favorable to Plaintiff, the Court finds that Plaintiff has identified the major life activity of caring for herself as being substantially limited by her sickle cell disease.

Defendant contends that sickle cell disease varies widely from individual to individual and, while Defendant appears to recognize that Plaintiff suffers from major sickle cell crises, Defendant emphasizes that these crises are intermittent. Indeed, Defendant points out that only occasionally does Plaintiff experience the onset of a major crisis that requires hospitalization and medication. As noted by Defendant, in her twelve-year tenure with the Hospital, Plaintiff suffered from major crises in 1998, 2002, 2003, 2004, and 2006—approxi-mately once every two years. Defendant also states that in the absence of a major crisis, the only two activities affected by Plaintiffs illness are Plaintiffs involvement in stressful activities and her ability to engage in extreme activities such as running. Of further significance, Defendant notes that Plaintiff has never claimed that she cannot work except in the rare instance of a major crisis. Because Plaintiff was capable of working full time, Defendant argues that Plaintiff does not meet the ADA’s definition of “disabled” even though Plaintiffs illness required intermittent hospitalization. Likewise, Defendant contends that Plaintiffs ability to care for herself is not substantially limited when Plaintiffs sickle cell disease presents a major crisis for a few weeks every two years or so.

In conducting its analysis of whether Plaintiff is substantially limited in her major life activity of caring for herself, the Court notes that the phrase “substantially limits” means that Plaintiff is “unable to perform a major life activity that the average person in the general population can perform” or is “[significantly restricted as to the condition, manner or duration under which an individual can perform a particular major life activity as compared to the condition, manner, or duration under which the average person in the general population can perform that same major life activity.” 29 C.F.R. §§ 1630.2(i) (1997). When determining whether a disability qualifies as a substantial limitation of a major life activity, the Court considers “(1) the nature and severity of the impairment; (2) the duration or expected duration of the impairment; and (3) the permanent or longterm impact, or the expected permanent or long term impact of or resulting from the impairment.” 29 C.F.R. § 1630.2(j)(2); Schwertfager v. City of Boynton Beach, 42 F.Supp.2d 1347, 1358-59 (S.D.Fla.1999) (citing Gordon v. E.L. Hamm & Assoc., Inc., 100 F.3d 907, 911 (11th Cir.1996)).

To rebut Defendant’s arguments, Plaintiff cites to various cases asserting that the episodic and somewhat intermittent nature of her sickle cell crises does not prevent her from being disabled under the ADA. First, Plaintiff cites to Vande Zande v. State ofWis. Dept. of Admin., 44 F.3d 538, 544 (7th Cir.1995), to emphasize that often the “disabling aspect of a disability is, precisely, an intermittent manifestation of the disability, rather than the underlying impairment.” In Vande Zande, the Court found that the plaintiffs episodic pressure ulcers (resulting from a tumor on her spinal cord) were part of her disability.

Likewise, Plaintiff cites to EEOC v. Chevron Phillips Chemical Co., 570 F.3d 606, 618 (5th Cir.2009), in support of her argument that relapsing conditions can constitute ADA disabilities, depending on the nature of each individual case. In Chevron, the Fifth Circuit noted that conditions such as multiple sclerosis, epilepsy, and colitis, even though episodic in nature, can constitute disabilities. Id. Thus, the court found that a reasonable jury could conclude that the plaintiff was disabled due to chronic fatigue syndrome (“CFS”) because she was substantially limited in the major life activities of caring for herself, sleeping, and thinking, even though the expected duration of the plaintiffs disability was indefinite and unknowable. Id. at 620.

Most significantly, the Sixth Circuit in Cehrs v. Northeast Ohio Alzheimer’s Research Center, 155 F.3d 775 (6th Cir.1998), found that the plaintiff raised a genuine issue of material fact regarding whether her chronic pustular psoriasis substantially limited the major life activities of being able to care for herself and to work. The plaintiff in Cehrs was able to work without incident until she suffered a flare-up of her psoriasis, during which time the plaintiff was unable to work for approximately two- and-one-half months. Id. at 778. Although the plaintiff had not suffered a similar flare-up in eight years and the defendant argued that the plaintiff was “disabled” only during flare-ups, the court found that summary judgment was precluded where an issue of fact remained regarding whether plaintiffs psoriasis substantially limited her major life activities. Id. at 781. In announcing its decision, the court looked at the fact that no cure for psoriasis exists, plaintiffs type of psoriasis was severe, and even during the dormant stage of the impairment, the plaintiff experienced pain. Id. Additionally, the court noted that the plaintiff received weekly medication and treatment, even when her psoriasis was dormant. Id.

Defendant, in its Reply, distinguishes Plaintiffs cases and argues that they do not support Plaintiffs argument in opposition t