Rhodes v. Arc of Madison County, Inc. (920 F. Supp. 2d 1202, 2013)

MEMORANDUM OPINION

C. LYNWOOD SMITH, JR., District Judge.

Plaintiff, Sheba Rhodes, asserts claims against defendant, The Arc of Madison County, Inc., for wrongful termination in violation of the Family and Medical Leave Act of 1993, 29 U.S.C. § 2601 et seq. (“FMLA”), and for negligent hiring, training, supervision, and retention in violation of state law. This action is before the court on three motions filed by defendant: i.e., a motion for summary judgment; a motion to strike portions of plaintiffs response in opposition to defendant’s motion for summary judgment; and a motion to strike portions of the affidavit of Constance Jones. Upon consideration of the parties’ briefs and evidentiary submissions, the motion to strike portions of plaintiffs response will be granted in part and denied in part, the motion to strike portions of Jones’s affidavit will be granted, and the motion for summary judgment will be granted in part and denied in part.

I. STANDARD OF REVIEW

Federal Rule of Civil Procedure 56 indicates that summary judgment “should be rendered 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). “[T]he plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (alteration supplied).

In making this determination, the court must review all evidence and make all reasonable inferences in favor of the party opposing summary judgment.

[However,] [t]he mere existence of some factual dispute will not defeat summary judgment unless that factual dispute is material to an issue affecting the outcome of the case. The relevant rules of substantive law dictate the materiality of a disputed fact. A genuine issue of material fact does not exist unless there is sufficient evidence favoring the non-moving party for a reasonable [factfinder] to return a verdict in its favor.

Chapman v. AI Transport, 229 F.3d 1012, 1023 (11th Cir.2000) (en banc) (internal citations omitted) (alterations and emphasis supplied).

II. SUMMARY OF FACTS

A. Plaintiffs Employment as an Instructor at The Arc

Plaintiff, Sheba Rhodes, was employed by defendant, The Arc of Madison County, Inc. (“The Arc”), as an instructor in a day program for adults with intellectual disabilities and developmental delays from July 12, 2006 to August 12, 2010. Prior to her employment at The Arc, plaintiff worked at “Volunteers of America” and “Ability Plus,” two organizations that served the needs of the mentally disabled.

During her two-year term at Volunteers of America, plaintiff was supervised by Program Director Kertrina Sharperson, who eventually left that organization and became Program Coordinator for defendant. While Sharperson testified that she voluntarily resigned from Volunteers of America because she was getting a divorce and having medical issues, plaintiff alleged that Sharperson was forced to resign because she engaged in theft and Social Security fraud. Before hiring Sharper-son, defendant conducted a background check, and found no cause for concern.

Regardless of Sharperson’s reasons for leaving Volunteers of America, when she assumed the position of Program Coordinator for defendant, she encouraged plaintiff to apply for employment. Plaintiff submitted an application on June 16, 2006, was interviewed by Qualified Mental Retardation Professional (“QMRP”) David Lane, and hired as an aide on July 12 of the same year. Upon the recommendation of Sharperson, and with the approval of defendant’s Executive Director, Susan Klingel, plaintiff was then promoted to instructor, and trained by QMRPs Lane and Ann Finley.

While working as an instructor in defendant’s day program, plaintiff’s regular duties included feeding and changing the soiled undergarments of clients with intellectual disabilities and developmental delays, as well as “teaching them everyday functions of life.” Despite the fact that the State of Alabama generally requires a ratio of one instructor to four clients, plaintiff had eight or nine students and one or two aides at any time. In any event, plaintiff was ultimately responsible for the conditions in her classroom.

During her time as an instructor, plaintiff was supervised by QMRPs Lane and Finley and Program Coordinator Sharper-son: Lane and Finley reported to Sharperson, who, in turn, reported to Executive Director Klingel. As a staff member in the day program, plaintiff also interacted with Medicaid Program Coordinator Roslyn Bridges, who ran the program and investigated allegations of client abuse, neglect, and mistreatment when assigned to do so by Klingel.

Plaintiff and Program Coordinator Sharperson had a falling out in 2006 or 2007. After defendant hired plaintiffs former supervisor, Yolanda Watkins (who is no longer employed at The Arc), plaintiff alleges that Watkins developed an intimate relationship with her and also Sharper-son. Watkins allegedly “convinced [Sharperson] somehow that [plaintiff] was a bad employee, [that she] wasn’t doing what [she] was supposed to do[,] [and that she] was running behind [Sharperson].”

Eventually, plaintiff ended her intimate relationship with Yolanda Watkins because she knew that Watkins also was intimately involved with Program Coordinator Sharperson, and because she was hesitant to jeopardize her employment with defendant. Thereupon, plaintiff alleges that Watkins launched a campaign of sexual harassment against plaintiff, but that Sharperson believed that plaintiff was sexually harassing Watkins. Sharperson then called plaintiff into her office, where she and plaintiff exchanged words, and Sharperson threatened to fire plaintiff if she did not “leave [Watkins] alone.”

As a result of their conflict over Watkins, plaintiff alleges that Program Coordinator Sharperson “harassed [her] and tried to get [her] fired.” However, plaintiff did not report the harassment to either Executive Director Klingel or Medicaid Program Coordinator Bridges. By way of explanation, plaintiff alleged that complaining to Klingel or Bridges was “like talking to that wall over there,” because “[n]othing gets done.” However, plaintiff admitted that she did not have any personal experience with the effectiveness of defendant’s reporting processes.

Program Coordinator Sharperson denied that she harassed plaintiff, that she believed that plaintiff should be terminated, or that she urged Executive Director Klingel to do so. For her part, Klingel denied that she was aware of problems between Sharperson and plaintiff.

B. Plaintiffs Request for FMLA Leave and Eventual Termination

In 2008, and again in 2009, well before the events giving rise to this action, plaintiff took leaves of absence from her employment with defendant under the Family and Medical Leave Act of 1993, 29 U.S.C. § 2601 et seq. (“FMLA”), “and no one gave [her a] hard time about [it].”

Plaintiff told Program Coordinator Kertrina Sharperson that she was planning to request FMLA leave once again in June of 2010, this time for gallbladder and hernia repair surgery. Plaintiff submitted her third request for FMLA leave on June 30, 2010, received her FMLA request packet on July 1, 2010, and obtained a certification of having a serious health condition from her physician on July 6 of the same year. Plaintiff then faxed the paperwork and received defendant’s approval on July 12, 2010 to begin her leave on August 16 of the same year.

During her deposition, plaintiff testified that, around the time she was gathering her paperwork to request FMLA leave, Program Coordinator Sharperson told plaintiff and plaintiffs supervisor, QMRP Ann Finley, that she did not want plaintiff to have the surgeries because “it was too many people trying to take FMLA [leave]. And [plaintiff had] already taken FMLA [leave] twice and [she] was taking it again. [Sharperson] was tired of folks asking for FMLA [leave].” Sharperson denied making those statements.

On August 5, 2010, less than two weeks before her scheduled FMLA leave, plaintiff was suspended, pending an investigation of a coworker’s allegations that she had abused a client. One week later, defendant gave plaintiff a termination notice stating that:

Following an investigation, it has been determined that you failed to implement the approved behavior program for an individual. Your failure to comply with established behavior strategy steps was neglectful and had a detrimental effect on the individual. Your employment is terminated as of today.

C. The Job Duties of an Instructor in the Day Program

In order to understand the alleged reasons for plaintiffs termination, one must understand the job duties of an instructor in the day program.

1. The day program

Defendant is a non-profit corporation that serves individuals of all ages who have intellectual disabilities and developmental delays. In addition to offering a residential group home, critical life skills training, and job support and supervision for individuals within the community, defendant provides a day program for adults that places clients in a classroom with a trained instructor for five hours a day, five days a week, to receive educational, vocational, and adaptive daily living skills, training, and support.

In contrast to the mere custodial care that is offered at nursing homes and other institutions, the day program provides “active treatment,” which involves continuously assessing the client, providing, monitoring, and modifying the client’s training based on progress. To facilitate “active treatment,” each client has a set of Active Treatment Protocols (“ATPs”) which are designed specifically for the client, and which constitute the curriculum to be taught at the day program.

Many of the clients in the day program have severe or profound mental retardation, and some clients are prone to various negative behavior, including aggression. Thus, the staff is trained on how to deal with negative behavior, on how to redirect the client to positive behavior, and on how to refocus the client on the ATPs.

2. The Behavior Support Plans (“BSPs”)

The State of Alabama requires that clients taking at least two forms of psychotropic medication also have Behavior Support Plans (“BSPs”) which are developed by a team of mental health professionals to decrease the clients’ negative behavior and increase their positive behavior using redirection and positive reinforcement. Among other things, a BSP contains a list of “reinforcer” activities: ie., a unique list of activities deemed to encourage a particular client to engage in positive behavior.

Because the purpose of a BSP “is to help change negative behavior into positive behavior,” it does not encompass all interactions between an instructor and her client, but only addresses those interactions that are related to behavior. Further, a BSP does not specify the amount of time that an instructor must spend on each of the listed “reinforcer” activities. Finally, a BSP is only one of the tools used by employees who interact with mentally retarded individuals.

If the State of Alabama Department of Mental Health determines that defendant failed to enforce a BSP, defendant could lose certifications and funding Thus, instructors are required to implement the day program curriculum while adhering to the BSPs of the clients in their classrooms, and using those BSPs to combat negative behavior.

Instructors are provided with BSPs for any clients with whom they interact in their classrooms. Instructors are then required to read and certify that they understand and will implement the BSPs. The mandatory review process affords instructors the opportunity and obligation to raise any questions about the BSPs’ contents.

3. The “Individual Abuse, Neglect, and Mistreatment” policy

Defendant’s written policy on “Individual Abuse, Neglect, and Mistreatment” defines the term “neglect” as:

the failure to carry out a duty through reckless conduct, carelessness, inattention, or disregard of duty whereby the individual is exposed to harm or risk of harm, and includes but is not limited to: failing to appropriately supervise individuals or otherwise leaving individuals unattended, including sleeping, failing to ensure that individual’s [sic] basic needs for safety, nutrition, medical care and personal attention are met, failing to provide treatment in accordance with the treatment plan or failing to develop a treatment plan, and utilizing treatment techniques, e.g., restraints, seclusion, etc., in violation of Arc policy and procedures, whether or not injury results. Incidents resulting in injury where both the perpetrator and the victim receive services by the Arc are investigated to determine if the occurrence of such incident may have been the result of neglect.

Defendant’s “Individual Abuse, Neglect, and Mistreatment” policy requires staff members to follow a BSP until it is changed by the individuals charged with its administration, regardless of whether any staff member, including Executive Director Susan Klingel, believes that the BSP should be amended. Instructors receive mandatory annual training on the “Individual Abuse, Neglect, and Mistreatment” policy. Klingel has terminated numerous employees for violating the policy.

D. Plaintiffs Job Performance

1. “Christina’s” Behavior Support Plan

The given name of one of plaintiffs students was “Christina.” Like many of defendant’s clients, Christina sometimes engaged in aggressive or self-injurious behavior, including biting, slapping, hitting, and kicking. Accordingly, Christina had a Behavior Support Plan (“BSP”) which was implemented on December 31, 2009, before Christina’s transfer to plaintiffs classroom, and within eight months of plaintiffs ultimate termination.

Christina’s BSP indicated that her aggressive and self-injurious behavior was motivated by a desire for escape, attention, and sensory stimulation. Thus, the BSP stated that, “[t]o address the escape function of Christina [sic] target behaviors and to address the communication problems he [sic] has with making her needs known, Christina will be taught to indicate to staff her basic needs.” The BSP also contained instructions for preventing aggressive and self-injurious behavior, which stated:

If Christina is engaging in Physical Aggression that is highly disruptive and she must be removed from the area, do so with NO TALKING. Do not tell her to calm down at this time/Do not ask her at this time if she needs anything/Simply escort her out. Any talking with her about her behavior at this point will serve to reinforce it (attention function). If physical aggression continues outside of original area, the staff may place Christina in a crisis prevention intervention, approved by Anita’s Home physical intervention, until she appears to be calm, for no longer than five minutes. This may be repeated two times before contacting the QMRP for further instructions.

If Christina engages in Self Injurious Behavior, she must be removed from the area without talking to him [sic]. Staff can try to watch an Alvin and the Chipmunks movie and video because this can calm her down. Staff needs to hold Christina’s arms gently to prevent her from further hitting herself or causing injuries. Staff will attempt to figure out what it is that is causing the behavior (ie., identify item that is causing irritation, identify if Christina is in pain, identify ' if Christina is hungry or thirsty, identify what task that Christina does not want to do, and give her a break from it). If something is irritating Christina in her environment, remove the item. If Christina is hungry or thirsty, give her something to eat or drink. If Christina seems to be in pain, report to the nurse and house manager. If Christina needs a break from a task then give her a break and try again after she has calmed down. If an injury has occurred, staff needs to complete an accident and injury report on the injury.

Christina’s BSP also contained instructions for reinforcing appropriate behavior. It listed the following “reinforcer” activities, i.e., various activities designed to encourage positive behavior: “Alvin and the Chipmunks, Listening [sic] to music, coloring, dancing, verbal praise, playing with her baby doll, 1:1 attention.” The BSP further included a section entitled “Reinforcement for Appropriate Behavior,” which stated:

If Christina ceases target behavior at any time, then staff should provide him [sic] with praise/recognition for appropriate behavior. When she calms down, give her praise and encourage her to return to previous activity. If he [sic] returns to previous activity, praise her for returning. If she begins engaging in the required activity, then give a lot of praise/recognition.

Finally, Christina’s BSP stated that it was “to be implemented at all times and in all locations unless specified otherwise,” but “only ... by staff that has been trained on the specific procedures of this program.” Accordingly, plaintiff signed the BSP to certify that

I have been [sic] in-service on Christina [sic] In-service for the individual listed below. I have had the opportunity to ask questions regarding the in-service and to have them answered. I understand that I am responsible for seeking direction from the QMRP if I do not understand any or all of this in-service and any or all of the responsibilities I have regarding instructing the client and providing care for the client. I agree to abide by the team’s recommendations and assist the individuals in carrying out these goals and objectives. I also agree to report and document as required by the Habilitation team, my supervisor and/or the R-QMRP.

Although plaintiff received in-service training on handling aggressive clients, and annual training on defendant’s “Individual Abuse, Neglect, and Mistreatment” policy, plaintiff testified that she was not trained on each BSP. Further, even though plaintiff understood that defendant expected its staff to read and understand BSPs “thoroughly,” she testified that she did not read Christina’s BSP “thoroughly.” Plaintiff nevertheless perceived that she was supposed to maximize the use of one-on-one interaction and other “reinforcers” for positive behavior, that she was not supposed to permit Christina to fall asleep while class was in session, and that deviation from a BSP constituted neglect, and was grounds for termination.

2. Plaintiffs alleged deviations from Christina’s Behavior Support Plan

By August of 2010, plaintiff testified that she had worked with Christina for eight to ten months. As noted in Section 11(A), supra, plaintiff generally had eight or nine students and the assistance of one or two aides. Thus, unless a staff member was assigned to a specific client, there was not enough staff to provide every client with one-on-one supervision. At least two of plaintiffs students had Behavior Support Plans (“BSPs”), one of whom was Christina. Of the two students with BSPs, one-on-one care was required for one of the students, but such care was not required for Christina.

Plaintiff found Christina’s behavior difficult to control. She testified that, “when [Christina] was up, when she was not sleeping, she was a terror. She would get up hitting the other clients [and] fighting the staff.” Plaintiff also testified that, “[i]f [Christina] wasn’t laying her head down, getting in one of her little moods, she’s fighting staff and fighting clients 24/7.” According to plaintiff, she “was the only one, basically, that could control [Christina].”

On one hand, plaintiff is neither an expert on BSPs, nor responsible for designing them. On the other hand, plaintiff testified that “[t]he ones that put the [BSPs] together is just doctors and psychiatrists. They don’t work with [clients] one on one like [instructors] do.” Indeed, some of the Qualified Mental Retardation Professionals who design BSPs ask for input from instructors and aides.

In plaintiffs opinion, Christina’s BSP “was not the right plan for her. It didn’t work.” Among other deficiencies, Christina’s BSP did not require that she receive one-on-one care as part of her treatment. Program Coordinator Kertrina Sharperson told plaintiff that the BSP had been created prior to Christina’s transfer to plaintiffs classroom, and that it had not been updated.

Christina’s BSP listed “coloring, dancing ... [and] 1:1 attention” as “reinforcers” for positive behavior. However, plaintiff admitted that Christina was not encouraged to engage in coloring or dancing, and that she was not always given one-on-one attention. By way of explanation, plaintiff alleged that defendant had too little staff to give Christina constant one-on-one attention, and that Christina “didn’t like” plaintiffs classroom aides.

Further, Christina’s BSP did not expressly allow instructors to regulate Christina’s behavior by instructing her to place her head on the desk and/or permitting her to fall asleep while class was in session. However, on occasions when Christina became aggressive, plaintiff admitted that she asked Christina to put her head on the desk “to calm her down.” Within approximately ten to fifteen minutes, Christina’s behavior de-escalated, and she got back up and was “fíne.”

Plaintiff denied issuing an instruction for Christina to go to sleep. Rather, plaintiff testified that Christina was often drowsy as a result of her medications, especially in the mornings. When Christina fell asleep, plaintiff attempted to interact with her in order to wake her up. Although this occasionally made Christina become aggressive, plaintiff understood that it was her job to continue to attempt to keep Christina awake. Further, plaintiff “didn’t want to get in trouble with [Program Coordiator Sharperson] because [Christina] is laying there asleep.”

However, plaintiff admitted that she “allowed [Christina] to stay asleep when she’s having [an episode of negative or , self-injurious] behavior.” For example, plaintiff admitted that she told. Gina Brand, an aide, not to interact with Christina when she was exhibiting negative behavior, because Brand irritated Christina, and plaintiff feared for Brand’s safety.

Likewise, plaintiff admitted that she told Victoria Evans, another aide, ,to allow Christina to put her head on the desk and not attempt to wake her up when she was exhibiting such behavior. Evans attested that:

[Plaintiff] and Christina were usually in the classroom before me and Christina normally had her head down on a table on top of a paper towel when I arrived. There were multiple occasions when Christina put her head up (other than when necessary to eat) and I heard [plaintiff] tell her to put her head back down on the table. [Plaintiff] told me more than one time to leave Christina alone in order to avoid negative behavior. Although Christina would sometimes fall asleep, she did not sleep all day and I often saw her awake with her head flat on a table as she was told to do. I knew that the Behavior Support Plan for Christina contained instructions on how to interact with her and that it did not include instructions that she should be told to put her head on a table or that she should be encouraged to sleep.

Although plaintiff designated the Evans affidavit as “disputed,” she did not identify the portions with which she disagreed. Indeed, plaintiff specifically admitted many of the facts Evans alleged. Plaintiff did, however, deny personally instructing Christina to place her head on the desk, on top of a paper towel.

Plaintiff testified that she believed her strategy of managing Christina’s behavior by instructing her to put her head on the desk to be consistent with the following instructions from Christina’s BSP: “If something is irritating Christina in her environment, remove the item.... If Christina needs a break from a task then give her a break and try again after she has calmed down.”

In contrast to plaintiffs interpretation of Christina’s BSP, Executive Director Susan Klingel indicated that, much like using physical intervention, the act of instructing a client to place her head on the desk, or to go to sleep is a negative strategy that “ha[s] to go through a team [of mental health professionals] and ... be part of the Behavior Support Plan” before it can be used.

Klingel also testified that “[a]t no point in time in any behavior management plan would somebody tell [a client] to put their head down on the table or go to sleep.” Likewise, Medicaid Program Coordinator Roslyn Bridges testified that defendant does not encourage the behavior management strategy of instructing a client to go to sleep.

3. Alleged Knowledge of Plaintiffs Conduct by Defendant’s Employees

Plaintiff offered evidence that several of defendant’s employees often instructed Christina to place her head on the desk, on top of a paper towel, either for purposes of hygiene or in order to address her episodes of aggressive or self-injurious behavior. Those employees included: Aide Freddie Dowdell; plaintiffs supervisor, Qualified Mental Retardation Professional Ann Finley; and even Program Coordinator Kertrina Sharperson who, in fact, allegedly introduced the challenged practice.

Plaintiff testified that Aide Dowdell frequently instructed Christina to put her head on the desk, on top of a paper towel, “because [Christina] slobbered on the table, and they didn’t want the slob on the table.” Plaintiff allegedly twice instructed Dowdell to stop using a paper towel “[b]ecause it was making [Christina] comfortable to sleep[J [a]nd I was instructed by my supervisor not to let her sleep like that,” but in spite of her instructions, Dowdell continued the practice.

Plaintiff also submitted an affidavit from Constance Jones, a former aide, who attested that she had

personally observed [plaintiffs supervisor,] Ann Finley, a QMRP at the time, and [Program Coordinator] Kertrina Sharperson, place Christina’s head down on the table in the classroom as a way of calming Christina down. In fact, Kertrina Sharperson was the first Arc employee to start the practice of placing a paper towel on the table and having Christina place her head down on the table, as a method of dealing with Christina’s violent behavior. Once [Sharperson] started this approach, she did it almost every day because Christina would act violent almost every day, or she also instructed [plaintiff], myself and others to act in this manner with Christina.

Executive Director Susan Klingel denied personal awareness that any of defendant’s employees were instructing Christina to put her head on the desk, either with or without a paper towel.

Plaintiff also testified that she repeatedly told Program Coordinator Sharperson and plaintiffs supervisor, QMRP David Lane, that Christina’s medication was causing her to fall asleep in class. Further, plaintiff alleged that Sharperson often visited her classroom, and frequently observed that Christina had fallen asleep with her head on the desk, but that Sharperson did not report these occurrences as a violation of defendant’s policies.

Program Coordinator Sharperson denied frequent visits to plaintiffs classroom, and testified that, on those occasions when she saw “Christina with her head on the desk,” she “instructed staff to get her up, move her around, [and encourage her to] interact with the other individuals.” Sharperson also stated that she was “not aware that [Christina] was being told to lay her head down and to sleep.”

In addition, plaintiff testified that she told Program Coordinator Sharperson that Christina did not like one of the aides, Gina Brand. Plaintiff did not, however, raise the issue with a QMRP, who could have written a “file note” and possibly removed Brand from the classroom. Executive Director Susan Klingel denied that she was aware of any problems between Christina and Brand.

E. Defendant’s Investigation of Plaintiffs Conduct

1. The complaint by Aide Gina Brand to Program Coordinator Kertrina Sharperson

The parties present two different versions of the events that led to the complaint against plaintiff by Aide Gina Brand to Program Coordinator Kertrina Sharper-son.

According to defendant, Brand approached Sharperson on August 5, 2010 in order to report the actions of Aide Constance Jones. In the process of reporting Jones’ misconduct, Aide Brand raised a separate “question” regarding the appropriateness of plaintiffs practice of instructing Christina to place her head on the desk, of allowing her to fall sleep while class was in session, and of discouraging aides from interacting with her one-on-one. Plaintiff disputes the evidence of Brand’s statements as inadmissible hearsay. See Section III, infra.

Defendant alleges that Program Coordinator Sharperson responded to Aide Brand’s inquiry by stating that plaintiffs methods “were not a correct way of dealing with Christina, because sleep is never encouraged and clients are at the Arc for affirmative interaction, not isolation or rest.” Sharperson then told Brand that they “needed to report this matter to [Medicaid Program Coordinator] Roslyn Bridges for a complete investigation pursuant to the Arc’s abuse, neglect and mistreatment policy.”

In contrast, plaintiff alleges that Program Coordinator Sharperson and plaintiffs supervisor, Qualified Mental Retardation Professional Ann Finley, coerced Aide Brand into making a complaint after Christina became violent and struck another client. While plaintiff was attending a doctors’ appointment on August 15, 2010, Christina became upset with Brand, who moved away from Christina and toward another client, Julia. Christina then physically attacked Julia, and Aide Constance- Jones had to intervene to break up the fight.

As a result of the incident, Program Coordinator Sharperson and QMRP Finley were allegedly called into plaintiffs classroom, Aides Brand and Jones completed reports for inclusion in Christina’s client file, and Brand reported that Christina had physically assaulted her. After the incident had been documented, plaintiff arrived at work, and Brand and Jones informed plaintiff of what had transpired. Plaintiff explained Christina’s behavioral problems to Brand, and Brand told plaintiff and Jones that she did not like three of defendant’s clients: ie., John, Maria, and Christina.

Aide Brand then allegedly took her lunch break, but repeatedly returned to plaintiffs classroom to inform plaintiff and Aide Jones that Program Coordinator Sharperson and QMRP Finley were trying to convince her to “snitch” on them by reporting activities in plaintiffs classroom. Brand also told plaintiff and Jones that Sharperson and Finley had assured her that neither plaintiff nor Jones would be present in plaintiffs classroom the following day.

Aide Brand then allegedly left the room, but returned to tell plaintiff and Aide Jones that Program Coordinator Sharper-son and QMRP Finley were putting her up to saying something she did not want to say, and that if she had to be a “snitch,” she would quit her job. Brand also stated that Jones had thrown Christina and another client, Jeff, into a chair, and that Finley was watching Jones through the window of plaintiffs classroom. (It is not clear whether Brand alleged that Finley was watching while Jones allegedly threw the clients into chairs.) Jones denied throwing either client.

Later, Program Coordinator Sharperson allegedly instructed Aide Jones to speak to Medicaid Program Coordinator Roslyn Bridges about Jones’s request for family leave. Jones denied requesting family leave, but she apparently went to Bridges’s office accompanied by Sharperson. Once Jones and Sharperson arrived at Bridges’s office, Sharperson laughed at Jones and told her that Bridges wanted to speak with her, and that Jones should have a seat.

Medicaid Program Coordinator Bridges informed Aide Jones that she was accused of abusing two clients, Christina and Jeff. She then obtained Jones’s written statement responding to the allegations, and suspended Jones with pay. Later that day, Jones tendered her resignation, because she believed that she “was being singled out and harassed and well as falsely accused of two incidents.” Defendant disputes the evidence of statements to Jones as inadmissible hearsay. See Section IV, infra.

2. The placement of plaintiff on administrative leave

On the day that Aide Gina Brand informed Program Coordinator Kertrina Sharperson about plaintiffs practice of instructing Christina to place her head on the desk while class was in session, defendant suspended plaintiff pending the results of an investigation by Medicaid Program Coordinator Roslyn Bridges, who ran defendant’s adult day program.

The incident report showing plaintiffs placement on administrative leave was signed by Program Coordinator Sharper-son. Accordingly, plaintiff alleged that Sharperson placed her on administrative leave. However, Klingel testified that Bridges was responsible for putting employees on administrative leave, and Sharperson attested that her (Sharper-son’s) involvement was limited to eompleting the incident report as required by law.

3. The investigation by Medicaid Program Coordinator Roslyn Bridges

As noted in Section 11(A), supra, Medicaid Program Coordinator Roslyn Bridges ran the day program, and investigated allegations of client abuse, neglect, and mistreatment when assigned to do so by Executive Director Susan Klingel. Bridges received informal, telephonic training on performing such investigations by requesting recommendations regarding her first investigation from an Advocate for the Alabama Department of Mental Health who was in the process of retiring from his position. By the time of her deposition, Bridges had conducted ten to twenty investigations.

As part of her investigation of the allegations by Aide Gina Brand against plaintiff, Medicaid Program Coordinator Bridges took a written statement from Brand, who reported that she “was told [by plaintiff] not to interact with Christina,” and “was informed the less interaction [with Christina,] the better.” Brand also reported that Christina was “made [by plaintiff] to lay her head down and sleep as much as possible,” and that “when I tried to talk and interact [with Christina,] I was told to stop and move on to the next client.”

Upon receiving Aide Brand’s report, Medicaid Program Coordinator Bridges preliminarily categorized the conduct under investigation as “mistreatment.” Bridges asked plaintiff to write a statement responding to Brand’s allegations. Plaintiff wrote that she had, in fact, told Brand “not to say certain things around Christina because she will get fixated on certain things you say,” and “that the less she say to Christina the better she will be because if you keep saying things to her she will try to fight and behaviors will escalate.”

Additionally, Program Coordinator Kertrina Sharperson assembled a list of employees for Medicaid Program Coordinator Bridges to interview. Bridges then obtained written answers to a series of questions from all nine aides who worked in plaintiffs classroom with Christina. However, she did not speak to Sharperson, or plaintiffs supervisors, Qualified Mental Retardation Professionals David Lane and Ann Finley, or anyone responsible for designing Christina’s Behavior Support Plan.

Three aides denied witnessing the acts under investigation. Donna Davis, Wilma Emerson, and Daphne Garner each gave a written statement denying that they had heard plaintiff instruct Christina to go to sleep, and denying that they had heard plaintiff tell staff not to interact with Christina.

Another six aides, however, acknowledged that they had heard plaintiff instruct Christina to place her head on the desk, and that they had heard plaintiff tell the staff to allow Christina to sleep and/or not to interact with her. Each of those statements is briefly summarized below.

Ade Freddie Dowdell wrote that, “[w]hen Christina come to school in a bad mood, [plaintiff] would tell her or I should say make her lay her head down and she would eventually go to sleep, or quiet down.”

Ade Victoria Evans wrote that, “[n]ormally, by the time I went to room 12, Christina was already laying her head down. When I would come there and she was up, she was instructed to lay her head down.” Evans then noted parenthetically that “[plaintiff] instructed her.” In response to Bridges’s question regarding whether plaintiff had instructed Evans to allow Christina to sleep, Evans answered that, “[o]ne time before Christina began to have [an episode of negative or self-injurious] behavior I was instructed to place a paper towel on the table and for her to rest her head on the paper towel to calm down.” Evans then stated that she “was instructed by [plaintiff] not to interact with Christina [and] to let her rest.”

In response to Bridges’s question regarding whether plaintiff had instructed Ade Connie Laster to allow Christina to sleep, Laster answered, “yes if [Christina] is in one of her bad moods.” Laster then alleged that plaintiff had also used that method “when [Christina] was obsessing over Avin and the Chipmunks.”

Ade Michelle Timmons answered “yes” to a question regarding whether plaintiff had instructed her to allow Christina to sleep, and “yes” to a question regarding whether she had also been instructed not to interact with Christina. Timmons answered “no” to the question, “Have you ever seen [plaintiff] make Christina to lay her head down by putting her hand on Christina’s head and pushing] her head down?” but noted that she had “heard [plaintiff] tell Christina to put her head down.”

Ade Donna Davis was asked whether plaintiff had instructed her to allow Christina to sleep, and answered, “yes she instructed [Christina] to la[y] her head down.”

Aide Beth Meager answered “yes” to a question asking whether plaintiff had instructed her to allow Christina to sleep.

Eventually, Medicaid Program Coordinator Bridges incorporated the nine witness statements into her investigative report for the Alabama Department of Mental Health. Bridges’s investigation did not yield sufficient evidence to conclude that plaintiff committed “mistreatment” (Bridges’s original designation for Aide Brand’s allegations), but did yield sufficient evidence to conclude that plaintiffs “behavior of failing to follow the approved behavior plan for [Christina] was neglectful” Defendant did not investigate the way in which Program Coordinator Sharperson or QMRPs Lane and Finley treated Christina, and did not subject those individuals to disciplinary action.

4. The decision to terminate plaintiffs employment

After Medicaid Program Coordinator Roslyn Bridges completed her investigation, but before she completed her report, Bridges provided Executive Director Susan Klingel with all the evidence, including the nine witness statements, regarding Aide Gina Brand’s allegations for the purpose of allowing Klingel to make a decision regarding the appropriateness of disciplinary action against plaintiff. Ultimately, Klingel decided to terminate plaintiffs employment because she did not follow Christina’s BSP, and because she acted in a manner that constituted “neglect” under defendant’s policies.

As an explanation for the decision, Executive Director Klingel testified that plaintiff “did not even attempt to follow [Christina’s] behavior [support] program. She went ahead and did what she wanted to do, which was to tell [Christina] to sleep and put her head down.” Klingel categorized that practice as “isolation [because Christina was] not getting any interaction.” Klingel found the practice inconsistent with defendant’s goal of assisting clients to improve their behavior and increase their normalization into the community. She also “considered [the practice] to be neglect” under defendant’s policies.

Medicaid Program Coordinator Bridges gave plaintiff a termination notice signed by Executive Director Klingel on August 12, 2010, four days before plaintiff was scheduled to begin her FMLA leave (August 16, 2010), and six days before Bridges completed her investigation report (August 18 of the same year). The termination notice stated that “[y]our failure to comply with the established behavior strategy steps was neglectful and had a detrimental effect on the individual.” Plaintiff signed the termination notice with the words “Refused to Sign” because she “didn’t think it was neglect.”

Medicaid Program Coordinator Bridges denied knowing that plaintiff had either applied for or been approved for FMLA leave until after her termination. Even so, Executive Director Klingel, Program Coordinator Kertrina Sharperson, and plaintiffs supervisor, Qualified Mental Retardation Professional Ann Finley, were each aware that plaintiff had been approved for FMLA leave prior to her termination. Nevertheless, Klingel attested that she did not consider information related to plaintiffs FMLA status in making the ultimate termination decision.

Additionally, plaintiff testified that Program Coordinator Sharperson influenced Executive Director Klingel’s decision to terminate plaintiffs employment. Plaintiff also testified that Sharperson claimed to have terminated employees in the past. However, Klingel testified that she is defendant’s ultimate decision-maker on hiring and firing, and that she made the decision to terminate plaintiffs employment without input from either Medicaid Program Coordinator Bridges or Sharperson.

F. Plaintiffs Surgeries

Despite her termination on August 12, 2010, plaintiff continued to receive health insurance coverage until September 1 of that year. Accordingly, plaintiff had insurance coverage for her surgery on August 16, 2010, for which she had originally requested FMLA leave. Plaintiff also owes nothing for a second surgery on September 18 of that year.

G. After-Acquired Evidence of Plaintiffs Violations of Defendant’s Policies

1. Plaintiffs failure to disclose her criminal conviction on her employment application

On the date of plaintiffs deposition taken on February 3, 2012, Executive Director Susan Klingel learned that plaintiff had failed to disclose her criminal conviction when applying for employment on June 16, 2006. Plaintiff was convicted of a misdemeanor for “under-ringing” items (ie., ringing up products at a price that is less than actual price) during her employment as a cashier at Wal-Mart. As part of her application, however, plaintiff answered “No” to the question, “Have you ever been convicted of a crime?” Plaintiff also signed a certification stating that “the facts contained in [the] application are true and complete.”

In light of the certification, plaintiff admitted that making a false statement on her employment application was grounds for her termination. Executive Director Klingel attested that “[defendant] considers false statements in applications very serious, and [Klingel] will not hire or retain individuals who make false statements.” Klingel also attested that, “[h]ad [she] known about [plaintiffs] falsification of her application at a time when she was applying for employment or employed by [defendant], [Klingel] would have refused to hire [plaintiff] or terminated her employment.”

Plaintiff designated the testimony regarding her criminal conviction as “disputed” on the grounds that

Defendant should have run a background check as part of the hiring process. (Alabama Dept, of Mental Health Division of Developmental Disabilities Administrative Code, Ch. 580-5-31-,02(5)(a) and 580-5-31-.02(5)(a) 2). Plaintiff admitted to a misdemeanor, not a felony. The judge told her misdemeanors don’t show on her record. (Rhodes Depo., p. 22).

Because plaintiffs arguments that defendant should have run a background check, and that a judge should have explained the significance of a misdemeanor, are not admissible evidence sufficient to dispute the allegation that she did not disclose her criminal conviction on her employment application, this court will treat plaintiffs conviction as admitted.

2. Plaintiffs failure to report violations of Behavior Support Plans (“BSPs”)

Also on the date of plaintiffs February 3, 2012 deposition, Executive Director Susan Klingel learned that plaintiff had allegedly witnessed Program Coordinator Kertrina Sharperson violate Behavior Support Plans (“BSPs”) “[n]umerous ... times,” and presumably for numerous clients, but did not report those violations in accordance with defendant’s policies. Defendant’s “Individual Abuse, Neglect, and Mistreatment Policy” states that “the failure to report suspected cases of individual abuse, neglect, or mistreatment (either physical or mental) for any reason, constitutes a serious neglect of duty on the part of the person witnessing the abuse, neglect, or mistreatment.”

In light of the policy, plaintiff admitted that failure to report the violation of a BSP was grounds for her termination. Executive Director Susan Klingel attested that “these failings on [plaintiffs] part would result in her termination if she was still employed by [defendant].”

III. MOTION TO STRIKE PORTIONS OF PLAINTIFF’S RESPONSE TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

Defendant filed a motion requesting three separate forms of relief: to hold that plaintiff has admitted some facts that defendant advanced in support of summary judgment; to strike other facts that plaintiff advanced in opposition to summary judgment; or, in the alternative, to provide guidance on the proper manner for defendant to formulate its response. For the reasons explained below, the requests will be granted in part and denied in part.

A. Motion to Hold Facts Admitted

Defendant first asks this court to hold that plaintiff has admitted defendant’s undisputed facts numbered 68 and 69, which concern Program Coordinator Sharper-son’s response to Aide Gina Brand’s “question” regarding the appropriateness of plaintiffs practices of instructing Christina to place her head on the desk, of allowing her to fall sleep while class was in session, and of discouraging aides from interacting with her one-on-one. Defendant’s allegedly undisputed facts numbered 68 and 69 state as follows:

68. [Program Coordinator Kertrina] Sharperson attested that when [Aide] Gina Brand told her [plaintiff] was engaging in a practice of instructing Christina to place her head down and encouraging aides to leave her alone, she responded to Ms. Brand that “this was not a correct way of dealing with Christina, because sleep is never encouraged and clients are at the Arc for affirmative interaction, not isolation or rest. (Sharperson Aff., ¶ 7).

69. [Program Coordinator] Sharperson testified that she immediately “indicated to Ms. Brand that [they] needed to report this matter to [Medicaid Program Coordinator] Roslyn Bridges for a complete investigation pursuant to the Arc’s abuse, neglect and mistreatment policy.” (Id.).

Plaintiff responded to those statements as follows:

68. Disputed. This statement has not been corroborated by [Aide] Gina Brand.

69. Disputed to the extent this statement has not been corroborated by Gina Brand.

Defendant argues that “plaintiff disputed the facts but did not provide citation to any materials from the record to support the dispute. (Id. at 8). Accordingly, pursuant to this Court’s Uniform Initial Order, [defendant’s] statements of fact no. 68 and 69 are due to be admitted.” Plaintiff concedes that her response omits any citation to the record, but contends that:

Defendant’s alleged facts nos. 68 and 69 contain alleged statements made by [Aide] Gina Brand, which are hearsay, and Plaintiff disputes the statements to that extent. Plaintiff did not dispute [Program Coordinator] Sharperson’s testimony, merely the portion that is hearsay. The cites were inadvertently left off, but are identical to the Defendant’s: Sharperson Aff., ¶ 7. [1] Indeed, Program Coordinator

Sharperson’s allegation that Aide Brand “told her [plaintiff] was engaging in a practice of instructing Christina to place her head down and encouraging aides to leave her alone” is hearsay, and does not fall within an exception that would permit its admission. This court thus holds that, with the exception of that portion of defendant’s undisputed fact numbered 68, defendant’s undisputed facts numbered 68 and 69 are deemed to have been admitted.

B. Motion to Strike or, in the Alternative, for Further Court Guidance

Defendant next asks this court to strike plaintiffs additional undisputed facts, with the exception numbers 2, 3, 7, 11, 12, 16 and 34, on the grounds that they “fail to comport with this Court’s requirement that they be set out in separately numbered paragraphs. At the very least, The Arc requires guidance from this Court as to how to formulate responses.”

Although it is true that many of the allegedly undisputed facts that were advanced by both parties are not set out in separately numbered paragraphs, the parties have responded to each others’ briefs, and this court has managed to parse those responses. Accordingly, the motion to strike plaintiffs additional, allegedly undisputed facts is denied as moot.

IV. MOTION TO STRIKE PORTIONS OF THE AFFIDAVIT OF CONSTANCE JONES

Defendant moves to strike the principal part of the. only evidence that plaintiff provides in opposition to summary judgment: ie., a portion of the affidavit of Constance Jones, an aide formerly employed by defendant, and the entire attached exhibit (an electronic mail (“email”) message sent by Jones to Executive Director Susan Klingel and others to tender her resignation and inform them of her rationale for leaving her employment at The Arc). For the reasons explained below, defendant’s motion to strike will be granted.

A. Summary of Former Aide Constance Jones’s E-Mail and Affidavit

As noted in Section 11(E)(1), swpra, Aide Jones resigned her position under acrimonious circumstances: she was suspended on an accusation that she had abused two clients, including Christina, and she believed that she “was being singled out and harassed and well as falsely accused of [those] two incidents.” Jones’s nine-page, single-spaced e-mail explaining her reasons for leaving contained scandalous accusations of misconduct by various members of defendant’s staff toward plaintiff and Jones, many of which are not germane to this action. In order to place the email into context, this discussion will briefly summarize Aide Jones’s claims.

Among other things, Jones alleged that Program Coordinator Kertrina Sharperson and Qualified Mental Retardation Professionals David Lane- and Ann Finley falsely accused her of “making a pass” at the husband of Instructor Tangela Gardner in church, and wrote her up for gossiping about the incident. Jones also alleged that Gardner took clients to various unauthorized locations in order to permit Gardener to conduct her personal affairs and purchase food stamps, clothing, and lottery tickets However, when Jones reported Gardner to Sharperson and Finley, neither supervisor took action.

Additionally, Jones alleged that she was regularly physically assaulted by the clients, that her supervisors would refuse to assist with restraining violent clients, and that QMRP Finley stated that rendering such assistance was not in her job description. Further, Jones alleged that, when she complained about Finley and Program Coordinator Sharperson to Medicaid Program Coordinator Roslyn Bridges, Sharperson and Finley asked Jones why she was talking to white people about her business. Jones also alleged that, after she injured her leg in an on-the-job accident, Sharperson ordered her to continue performing strenuous physical tasks, and to stop using crutches or attending physical therapy.

In addition to making a plethora of claims that are not pertinent to this case, the e-mail from Aide Jones addresses one relevant subject: i.e., the events allegedly precipitating the complaint against plaintiff by Aide Brand to Program Coordinator Sharperson. Briefly, the Jones e-mail alleges that Brand was coerced by Sharper-son and QMRP Finley into making the complaint after Christina became violent and struck another client. See Section 11(E)(1), supra.

The affidavit from Aide Jones restates her claims regarding the events precipitating the complaint against plaintiff by Aide Brand to Program Coordinator Sharper-son: ie., that the complaint was coerced by Sharperson and QMRP Finley. The affidavit then makes the additional contention that Sharperson introduced the practice of instructing Christina to place her head on the desk, and that Finley adopted the practice.

B. Motion to Strike

Defendant moves to strike the following lengthy paragraph from former Aide Constance Jones’s affidavit:

After the incident [involving Christina’s physical assault on another client, Julia] had been taken care of and documented, [plaintiff] came into the room and asked [Aide Constance Jones] and [Aide] Gina Brand what was going on. [Constance Jones] told [plaintiff] what happened in front of Gina Brand. [Plaintiff] read the file notes and talked to [Brand and Jones]. [Brand] told [plaintiff], “now I know what you mean about Christina.” The air conditioner was not working. [Jones] asked [plaintiff] if [they] could go to the cafeteria. [Plaintiff] said she would have to ask permission first. [Plaintiff] began explaining to [Brand], Christina’s behavioral problems. [Brand] then told [plaintiff] and [Jones] that she did not like [three of defendant’s clients: i.e.,\ John, Maria, or Christina. [Plaintiff] and [Jones] listened to [Brand’s] complaint. [Plaintiff, Brand, and Jones] moved to the cafeteria. [Brand] went to break, and every time she came back to the room she would tell [plaintiff and Jones] a different story that [QMRP] Ann [Finley] & [Program Coordinator] Kertrina [Sharperson] were trying to get her to snitch on [plaintiff] and [Jones]. [Sharperson and Finley] wanted [Brand] to tell them what goes on in [plaintiffs classroom,] room 12. [Brand’s] story kept changing. [Brand] told [plaintiff and Jones] that [Sharper-son] and [Finley] assured her that [plaintiff] nor [Jones] would be in [plaintiffs classroom] tomorrow. [Plaintiff] told [Brand], “what is there to snitch about? No one has done anything wrong.” [Brand] left the room for her lunch, and this time she came back and told [plaintiff and Jones] that [Sharper-son] and [Finley] were putting her up to saying that something that she did not want to say and that if she had to be a snitch that she would quit her job first. [Plaintiff] began asking [Brand] what was she talking about. [Jones] got up and took [a client,] Julia[,] to [another classroom] to change her undergarments. When [Jones] returned, [plaintiff] told [Jones] that [Brand] said that [Jones] had thrown Christina and [another client,] Jeff[,] down in a chair and Ann Finley was watching [Jones] through the window in [plaintiffs classroom], [Jones] told [Plaintiff] that [she] never threw either client in a chair. [Jones] later was asked by [Sharperson] to go see [Medicaid Program Coordinator] Roslyn [Bridges] about [Jones’s] family leave form, that [Jones] had allegedly put in. [Jones] told [Sharper-son] that [she] did not have a leave form put in. Once [Jones] left the classroom and got to the office, [Sharperson] laughed at [Jones] and told [her] that Roslyn Bridges wanted to speak with [Jones] and [Jones] was asked to have a seat.

Defendant also moves to strike the e-mail sent by Aide Jones to explain her decision to resign from her position at The Arc.

Defendant argues that the foregoing affidavit paragraph and the entire attached e-mail constitute inadmissible hearsay. Plaintiff attempts to render the evidence admissible by characterizing it as a party admission, a business record, a present sense impression, an excited utterance, and a statement showing a then-existing state of mind. Additionally, plaintiff argues that the evidence is not hearsay because she does not offer it to prove the truth of the matter asserted.

Plaintiff first deems Aide Jones’s affidavit and e-mail to constitute party admissions because “[Aide] Jones, [Aide] Brand and [plaintiff] were all employees at the time of the events recounted by Ms. Jones in her affidavit, and the discussions were about matters within the scope of that relationship.” A statement qualifies as a party admission on the grounds that its author is the opposing party’s employee if the statement is “offered against an opposing party and ... made by the party’s agent or employee on a matter within the scope of that relationship and while it existed.” Fed.R.Evid. 801(d)(2)(D) (emphasis supplied). The first sentence of the e-mail sent by Aide Jones states that she thereby resigns from her position at The Arc. It is self-evident that an e-mail tendering an employee’s resignation is not a statement made within the scope of the employment relationship while it exists, regardless of whether the e-mail concerns events that occurred within the scope of that relationship. In Young v. James Green Management, Inc., 327 F.3d 616 (7th Cir.2003), the Seventh Circuit confronted the question of whether a resignation letter constituted an employer’s party admission, and concluded that the letter was not admissible as a result of a “fundamental deficiency”:

[The employee] was not speaking as an employee on behalf of [the employer] when he resigned from his employment and accused [the employer] of racial discrimination; to the contrary, in a very overt manner, [the employee] was acting not only independently of [the employer] but also as its adversary. Because [the employee’s] out-of-court statement was made in the context of terminating his employment (and placing himself in an adversarial relationship with [the employer] ), the justification for Rule 801(d)(2)(D) does not exist because [the employee] no longer was inhibited by his relationship with the principal from making erroneous or underhanded comments which could harm the principal.

Id. at 622-23 (internal quotations omitted) (alterations supplied).

Aide Jones’s affidavit was notarized on April 16, 2012, i.e., nearly two years after she resigned her employment via e-mail on August 17, 2010. Accordingly, neither the affidavit nor the e-mail is a statement made within the scope of the employment relationship while it existed, and neither is admissible as a party admission.

Plaintiff next argues that Aide Jones’s e-mail constitutes a business record because it “was made by her pursuant to defendant’s complaint policy and was kept in the ordinary course of business by defendant as part of its investigation into her complaints.” A statement qualifies as a record of a regularly conducted activity if it records an act, event, condition, opinion, or diagnosis and

(A) the record was made at or near the time by- — or from information transmitted by — someone with knowledge;

(B) the record was kept in the course of a regularly conducted activity of a business, organization, occupation, or calling, whether or not for profit;

(C) making the record was a regular practice of that activity;

(D) all these conditions are shown by the testimony of the custodian or another qualified witness, or by a certification that complies with Rule 902(11) or (12) or with a statute permitting certification; and

(E) neither the source of information nor the method or circumstances of preparation indicate a lack of trustworthiness.

Fed.R.Evid. 803(6) (emphasis supplied). “For [the business record] exception to be available, all persons involved in the process must be acting in the regular course of business