Abbott v. Elwood Staffing Services Inc. (44 F. Supp. 3d 1125, 2014)

MEMORANDUM OPINION

VIRGINIA EMERSON HOPKINS, District Judge.

This is a civil action brought by the plaintiff, Randi A. Abbott, against the defendants, Elwood Staffing Services, Inc. (“Elwood”), and Honda Manufacturing of Alabama, LLC (“HMA”). (Doc. 53 at 1). The Third Amended Complaint was filed on October 24, 2013. It alleges the following claims against both Elwood and HMA: “Failure to Accommodate on the Basis of Pregnancy/Sex-Pregnancy Discrimination Act/Title VII” (Count One); “Unlawful Termination of Employment on the Basis of Pregnancy/Sex-Pregnancy Discrimination Act/Title VII” (Count Two); “Failure to Accommodate on the Basis of Disability-Americans with Disabilities Act” (Count Three); “Unlawful Termination on the Basis of Disability-Americans with Disabilities Act” (Count Four); “Retaliation on the Basis of Pregnancy/Sex-Pregnancy Discrimination Act/Title VII” (Count Five); “Retaliation on the Basis of Disability-ADA” (Count Six); and “Retaliation on the Basis of Race-Title VTI/Section 1981” (Count Seven). (Doc. 53 at 2-13). As to HMA alone, the Third Amended Complaint alleges “Discrimination on the Basis of Race-Title VII/Section 1981” (Count Eight). Against Elwood alone, the Third Amended Complaint alleges “Retaliatory Discharge: § 25-5-11.1, Alabama Code 1975” (Count Nine). All counts arise out of the plaintiffs employment at an HMA facility.

The case comes before the court on the motions for summary judgment filed by the defendants. (Docs. 57, 60). Also before the court is Elwood’s objections to portions of the evidence submitted by the plaintiff in opposition to the motions for summary judgment (doc. 67), and HMA’s motion to strike portions of that evidence (doc. 69). For the reasons stated herein, Elwood’s objections and HMA’s motion to strike will both be treated as objections and will be SUSTAINED in part and OVERRULED in part. In addition, the motions for summary judgment will be GRANTED, and this case will be DISMISSED.

I. THE MOTION TO STRIKE AND THE OBJECTION TO THE PLAINTIFF’S EVIDENCE

A. Standard

As explained above, and in this court’s order of August 9, 2013 (doc. 50), the court treats both the objections, and the motion to strike, as objections under Federal Rule of Civil Procedure Rule 56(c)(2). Pursuant to that rule, “[a] party may object that the material cited to support or dispute a fact cannot be presented in a form that would be admissible in evidence.” Fed.R.Civ.P. 56(c)(2). The advisory committee’s note to Rule 56(c)(2) provide that:

[An] objection [under Rule 56(c)(2) ] functions much as an objection at trial.... The burden is on the proponent to show that the material is admissible as presented or to explain the admissible form that is anticipated.

Fed.R.Civ.P. 56 advisory committee’s note to 2010 amendments (emphasis added); see also, Priest v. U.S. Sec. Associates Inc., 5:11-CV-03938-HGD, 2014 WL 800900 at *1 (N.D.Ala. Feb. 28, 2014) (Davis, M.J.); Riley v. Univ. of Alabama Health Servs. Found., P.C., 990 F.Supp.2d 1177, 1186-87 (N.D.Ala.2014) (Hopkins, J.); Peeler v. KVH Indus., Inc., 8:12-CV-1584-T-33TGW, 2013 WL 3871420 at *8 (M.D.Fla. July 25, 2013) on reconsideration in part, 8:12-CV-1584-T-33TGW, 2013 WL 5289733 (M.D.Fla. Sept. 19, 2013) (Covington, J.); In re Gregg, 11-40125-JTL, 2013 WL 3989061 *3 (Bankr.M.D.Ga. July 2, 2013) (Laney, B.J.); Gates v. HP A Subway, Inc., CIV.A. 11-00637-KD-B, 2012 WL 5877978 at *2 n. 5 (S.D.Ala. Nov. 21, 2012) (DuBose, J.).

B. The Nature of the Arguments

Despite the clear burden on the plaintiff, she writes:

“The court is capable of sifting through evidence, as required by the summary-judgment standard, without resort to an exclusionary process, and the court will not allow the summary-judgment stage to degenerate into a battle of motions to strike.” Mann v. Darden, Civil Action No. 2:07cv751MHT (WO) [2009 WL 2019588] (M.D.Ala, July 6, 2009). Plaintiff, therefore, is not submitting a line-by-line response to each objection raised by [defendants but merely providing the Court with the following to assist the Court in sifting through the evidence.

(Doc. 70 at 1). As will be shown below, the plaintiffs failure to address the defendants’ objections “line-by-line,” almost always equates to a failure to show that the proffered evidence is admissible as presented or to explain the admissible form of the evidence that is anticipated. In its discussion of the evidence, the court will note where that has happened.

Similarly, the defendants sometimes argue that certain pieces of evidence are inadmissible, but never cite to specific portions of the evidence—instead focusing only on the “facts” submitted by the plaintiff which cite such evidence. Without a specific citation, the court cannot determine what, if anything, needs to be stricken. At other times, the defendants argue that some evidence does not support the proposition for which it is cited. While that may be a reason for the court not to adopt that proposition, it is not a reason to strike the evidence. These circumstances, too, will be noted by the court in its examination of the evidence.

C. The Plaintiff’s Handwritten Notes • (Doc. 64-2 at 1-4)

As part of her submissions in opposition to the motions for summary judgment, the plaintiff submits several pages of handwritten notes, written by her, which memorialize the events of several days in July and August of 2011. (Doc. 64-2 at 1-4). Both defendants object to the consideration of the notes, in part, because they are hearsay, and because they cannot be made admissible at trial. (Doc. 67 at 3-4; doc. 69 at 5, 7; doc. 71 at 3). The plaintiff does not respond to the argument that the notes are hearsay, stating only:

Elwood contends that [p]laintiffs notes are not admissible. A review of the document demonstrates, this same document was an exhibit in [p]laintiff s deposition. Plaintiff authenticated this document at her deposition. Honda contends that the notes are irrelevant to proving what caused [p]laintifPs injury, asserting that [p]laintiff is not a doctor. Plaintiff did not have to be a doctor to realize she began bleeding from her vagina while straining while working, as the notes describe.

(Doc. 70 at 2).

The plaintiff has not shown that the notes, and the statements therein, are either not hearsay, or fall within some exception to the hearsay rule. Thus, the plaintiff has failed to satisfy her burden “to show that the material is admissible as presented or to explain the admissible form that is anticipated,” Fed.R.Civ.P. 56 advisory committee’s note to 2010 amendments (emphasis omitted).

In addition, the court has reviewed the notes and affirmatively finds that they are hearsay. Hearsay “is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” Fed.R.Evid. 801(c). “Hearsay is inadmissible unless the statement is not hearsay as provided by Rule 801(d), or falls into one of the hearsay exceptions enumerated in Rules 803, 804, and 807.” United States v. Baker, 432 F.3d 1189, 1203 (11th Cir.2005). The notes fall squarely within the definition of hearsay.

The general rule is that inadmissible hearsay cannot defeat a motion for summary judgment where there is no indication that it is reducible to a form that would be admissible at trial. See Pritchard v. Southern Co. Services, 92 F.3d 1130, 1135, amended in part on rehearing, 102 F.3d 1118 (11th Cir.1996), cert. denied, 520 U.S. 1274, 117 S.Ct. 2453, 138 L.Ed.2d 211 (1997).

Wyant v. Burlington N. Santa Fe R.R., 210 F.Supp.2d 1263, 1275-76 (N.D.Ala.2002) (Ott, M.J.). Further, portions of the notes constitute double hearsay. For double hearsay to be admissible, “ ‘each part of the combined statements [must] conform [ ] with an exception to the hearsay rule.’ ” United Technologies Corp. v. Mazer, 556 F.3d 1260, 1280 (11th Cir.2009) (quoting Fed.R.Evid. 805). Further still, the notes are unsworn, and the court does not consider unsworn statements. Dudley v. City of Monroeville, 446 Fed.Appx. 204, 207 (11th Cir.2011) (“Unsworn statements do not meet the requirements of Rule 56, so the district court could not—and properly did not—rely on the content of the citizen’s [unsworn] statement.”) (citing Carr v. Tatangelo, 338 F.3d 1259, 1273 n. 27 (11th Cir.2003)).

The objections to the notes (doc. 64-2 at 1-4) are SUSTAINED. They will be stricken.

D. The “Balmer Notes” (Doc. 64-3)

In response to the motion for summary judgment the plaintiff proffers document 64-3, which includes notes made, at least in part, by Alan Balmer, Elwood’s Vice-President of its Workforce Solutions division. (Doc. 39-2 at 5(7)).

HMA and Elwood argue that the entire exhibit is unauthenticated, and therefore should not be considered. In its reply brief, HMA cites to Saunders v. Emory Healthcare, Inc., 360 Fed.Appx. 110, 113 (11th Cir.2010), where the Eleventh Circuit, citing to Fed.R.Civ.P. 56(e) as it existed at that time, wrote:

To be admissible in support of or in opposition to a motion for summary judgment, a document must be authenticated by and attached to an affidavit that meets the requirements of Rule 56(e) and the affiant must be a person through whom the exhibits could be admitted into evidence. 10 A Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure: Civil § 2722, at 382-84 (3d ed.1998).

Saunders, 360 Fed-Appx. at 113.

First, Balmer testified in his deposition that he created this document, but only down to the black line which appears on page 3. (Doc. 39-2 at 15(48)). He stated that he did not know who put in the information below the black line. (Doc. 39-2 at 15(48)). At least down to the black line on page 3, the document has been authenticated.

Further, authentication is not required at the summary judgment stage. Rule 56(e) was amended in 2010. It has been noted:

Before the 2010 amendments to the Federal Rules of Civil Procedure, Rule 56 arguably required that all documents submitted to support or oppose a summary judgment be authenticated. See, e.g., Ellis v. Kilgore, 27 F.3d 562 (table), 1994 WL 320233, at *1 (4th Cir.1994) (“The party opposing a motion for summary judgment may not merely rest on its pleadings but must demonstrate sufficient evidence, properly authenticated under Rule 56(e), which would be sufficient to support a jury verdict in its favor.”); Orr v. Bank of America, NT & SA, 285 F.3d 764, 773 [(9th Cir.2002)] (“We have repeatedly held that unauthenticated documents cannot be considered in a motion for summary judgment.”). Many courts recognized an exception for “when there is no dispute as to the document’s authenticity and it is apparent the document can be reduced to admissible, authenticated form at trial.” 11 Moore’s Federal Practice § 56.92[3] (Matthew Bender 3d ed.); see also Rowell v. Bell-South Corp., 433 F.3d 794, 800 (11th Cir.2005) (“On motions for summary judgment, we may consider only that evidence which can be reduced to an admissible form.”); U.S. Aviation Underwriters, Inc. v. Yellow Freight Sys., Inc., 296 F.Supp.2d 1322, 1327 n. 2 [ (S.D.Ala.2003) ] (In a case involving an unauthenticated bill of lading, the Court stated, “Documents must generally be properly authenticated to be considered at summary judgment, unless it is apparent that those documents can be reduced to admissible, authenticated form at trial.”); Lexington Ins. Co. v. Western Pa. Hosp., 423 F.3d 318, 329 n. 6 (3rd Cir.2005) (“Our Court has not precluded reliance on unauthenticated documents to oppose a motion for summary judgment, so long as they are ultimately reducible to admissible evidence.”) At least one court extended this exception to statements by a pro se litigant that were unsupported by an affidavit. See Hollingshead v. Windley, 2008 WL 4809221, at *3 n. 12 (S.D.Ala. 2008) (“The Court recognizes, of course, that many of plaintiffs factual representations in her summary judgment submission are not set forth in affidavit form. Notwithstanding this technical infirmity, the Court will consider plaintiffs factual assertions for Rule 56 purposes in light of her pro se status and the well-established rule that evidence should be considered on summary judgment if it appears that it can be reduced to admissible form at trial.”).

Those cases were decided under former Rule 56. The language relied on for the authentication requirement, in former subsection (e), was omitted in the amended Rule 56. The Court notes that many post-amendment opinions on summary judgment—without acknowledging the amendments—still cite pre-amendment case law ... for current authentication requirements. See, e.g., Jimena v. Standish [504 Fed.Appx. 632, 634-35], 2013 WL 223131, at *1 (9th Cir.2013) (citing an opinion from 2002, the court stated, “Unauthenticated documents cannot be considered in a motion for summary judgment.”).

The majority of the opinions this Court has read from courts construing current Rule 56, however, state the amendments ehminated the authentication requirement and replaced it with a requirement that evidence be presentable in admissible form at trial. As one court put it,

Newly revised Rule 56 of the Federal Rules of Civil Procedure governs the procedure by which the court must review objections to the admissibility of evidence presented in connection with a motion for summary judgment. In some respects, the 2010 amendment to Rule 56 works a sea change in summary judgment procedure and introduces flexibility (and consequent uncertainty) in place of the bright-line rules that are obtained previously. Former Rule 56(e) contained an unequivocal direction that documents presented in connection with a summary judgment motion must be authenticated:

If a paper or part of a paper is referred to in an affidavit, a sworn or certified copy must be attached to or served with the affidavit.

FED.R.CIV.P. 56(e)(1) (2009 version). Relying on this language, the United States Court of Appeals for the Sixth Circuit routinely held that unauthenticated documents could not be used to support a motion for summary judgment. See, e.g., Moore v. Holbrook, 2 F.3d 697, 698-99 (6th Cir.1993). As recently as 2009, the Court of Appeals stated that unauthenticated documents do not meet the requirements of Rule 56(e) and must be disregarded. Alexander v. CareSource, 576 F.3d 551, 558-59 (6th Cir.2009).

These authorities must be read carefully, however, in light of the 2010 amendments to Rule 56, which eliminated the unequivocal requirement that documents submitted in support of a summary judgment motion must be authenticated. Rather, the amended Rule allows a party making or opposing a summary judgment motion to cite to materials in the record including, among other things, “depositions, documents, electronically stored information, affidavits or declarations” and the like. FED. R. CIV.P. 56(c)(1)(A). If the opposing party believes that such materials “cannot be presented in a form that would be admissible in evidence,” that party must file an objection. FED. R. CIV.P. 56(c)(2). Significantly, the objection contemplated by the amended Rule is not that the material “has not” been submitted in admissible form, but that it “cannot” be. The comments to the 2010 amendments make it clear that the drafters intended to make summary judgment practice conform to procedure at trial. “The objection functions much as an objection at trial, adjusted for the pretrial setting. The burden is on the proponent to show that the material is admissible as presented or to explain the admissible form that is anticipated. There is no need to make a separate motion to strike.” FED. R. CIV. P. 56 (2010 Advisory Committee comments). The revised Rule therefore clearly contemplates that the proponent of evidence will have the ability to address the opponent’s objections, and the Rule allows the court to give the proponent “an opportunity to properly support or address the fact,” if the court finds the objection meritorious. FED. R. CIV. P. 56(e)(1). Thus, the amendment replaces a clear, bright-line rule (“all documents must be authenticated”) with a multi-step process by which a proponent may submit evidence, subject to objection by the opponent and an opportunity for the proponent to either authenticate the document or propose a method to doing so at trial.

Foreword Magazine, Inc. v. OverDrive, Inc., 2011 WL 5169384, at *2 (W.D.Mich.2011).

This is a reasonable interpretation of current Rule 56 given the new language, the omission of the old language, and the policy behind summary adjudication of minimizing time and expense when the outcome of a case is obvious or depends only on matters of law. Thus under current Rule 56, an objection cannot be based solely on evidence not being authenticated—the objection must be that evidence cannot be presented in admissible form, not that the evidence has not been presented in admissible form. See, e.g., Slate v. Byrd, 2013 WL 1103275, at *2 (M.D.N.C.2013) (“Because [defendant] has not filed an objection contending that the cited material ‘cannot be presented in a form that would be admissible in evidence,’ no basis exists for the Court to decline consideration of the material at issue.”).

In re Gregg, 11-40125-JTL, 2013 WL 3989061 at *2-4 (Bankr.M.D.Ga. July 2, 2013) (Laney, C.B.J.). The court agrees with this well reasoned approach, and notes that the defendants do not argue that the document cannot be authenticated. The objections, to the extent that they are based upon the document not being authenticated, are OVERRULED.

HMA argues:

Doc. 63 [the plaintiffs response to the motions for summary judgment] generally cites to “Balmer Notes” without referencing a specific part of page number. Without a specific reference, they are impermissibly vague.... While unclear, HMA references the part(s) of “Balmer Notes” to .which it believes [p]laintiff refers for each citation.

(Doc. 69 at 8, n. 20). HMA then argues:

A. The “Balmer Notes” [p]laintiff cites are due to be stricken because they are conclusory, lack foundation, are based on hearsay, are irrelevant/immaterial, are not authenticated, and are not cited with specificity.

1. Regarding “Balmer Notes” pp. 1-3 (Doc. 63, Response to HMA Fact 48), [p]laintiffs cited evidence provides no foundation to support her conclusion that “everyone understood that [p]laintiff suffered an on-the-job injury for which she sought compensation and accommodation, but which [defendants refused to provide,” and knowledge of an injury cannot be imputed to any actors. Further, it is, at least, double hearsay inadmissible to show the truth of the matter asserted—[defendants’ knowledge of an on-the-job injury—and contradicts her sworn deposition testimony.

2. Regarding “Balmer Notes” p. 1, (Doc. 63, p. 9, Fact 11), [pjlaintiff offers only hearsay to conclude that she “started spotting after doing her process.”

3. Regarding “Balmer Notes” p. 3 (Doc. 63, p. 10, Fact 19), [pjlaintiffs cited evidence fails to set out who knew, when they knew, and how they knew an injury caused [pjlaintiffs pregnancy-related impairment, and is conclusory and lacks foundation. Further it is double hearsay inadmissible to show the truth of the matter asserted—that [djefendants knew an injury caused [pjlaintiffs pregnancy-related impairment.

4. Regarding “Balmer Notes” p. 1-3 (Doc. 63, pp. 9, 12, Facts 10, 32), [pjlaintiffs cited evidence provides no foundation for concluding Balmer knew [pjlaintiff suffered an on-the-job injury, and knowledge cannot be imputed to him. Further, the notes are hearsay inadmissible to show the truth of the matter asserted.

(Doc. 69 at 7-10) (footnotes omitted) (emphasis in original). Except in two footnotes, HMA never cites to the exhibit in question. The objection’s reference to the plaintiffs brief in opposition to the motion for summary judgment provides no help either, since, as noted by the defendant, in her brief the plaintiff only generally cites to her exhibit without a pinpoint cite. To the extent that the exhibit itself is attacked, and to the extent that it is impossible to determine the exact portion of the exhibit which the defendants attack, the objections are OVERRULED.

As indicated, HMA includes two footnotes which do reference a portion of the exhibit. The first is footnote 24, which references the portion of the notes which reads: “Randi Abbott told TC Issac [Henderson] that she started spotting after doing her process.” (Doc. 69 at 9, n. 24) (quoting 64-3 at 1). The defendant argues that this statement is hearsay to the extent that it is offered to prove that the plaintiff actually started spotting after doing her process. The plaintiff does not address this argument in her response to the motion/objeetion, saying only that HMA “provides no basis for calling it [hearsay].” (Doc. 70 at 3). She has failed to carry her burden to show that this statement is either not hearsay or falls within some exception to the hearsay rule. Further, the court affirmatively finds that the statement is hearsay that falls within no exception. To the extent that the plaintiff wishes to use the evidence to show that she actually was spotting, and when it occurred, the objections are SUSTAINED and the evidence will be stricken.

The only other specific section noted by HMA appears in footnote 26, which reads: “She presented a ‘doctor’s note’ on 8/11/11 (the note is dated 8/10/11 that indicates Randi is pregnant and needs to empty her bladder more often and will need to be able to use the restroom as needed.”) (Doc. 69 at 9 n. 26) (quoting 64-3 at 2). Again, the defendant argues that, to the extent that the statement is offered to prove what was stated in the note, it is hearsay. Again, the plaintiff does not respond to this argument. Because the plaintiff has failed to carry her burden on this issue, and because the court affirmatively finds that the statement regarding the contents of the doctor’s note is hearsay, subject to no exceptions, the objection is SUSTAINED. The statement will be stricken to the extent it is cited to prove the contents of the note.

Elwood writes: “The portions of Bal-mer’s notes which he did not draft and the author of which is unknown, is hearsay.” (Doc. 67 at 7). Assuming that is true, because the objection does not argue that that portion of the document cannot be made admissible, it fails. In re Gregg, 2013 WL 3989061 at *2-4.

E. The Plaintiff’s Injury Report (Doc. 64-1 at 1)

Like the arguments presented by the defendants to strike the Balmer Notes, the arguments presented by HMA in opposition to the plaintiffs injury report also appear to mainly argue that the report does not support the proposition for which it is cited in the plaintiffs brief. (Doc. 69 at 4 (¶ 1), 5 (¶¶ 2-3)). Again, to that extent, the court will address those arguments when considering which facts to include in its opinion on the motion for summary judgment. Elwood’s objections include the following paragraph:

14. The following paragraphs from [plaintiffs brief rely on [p]laintiff s Exhibit 1 and should be struck or disregarded: See Doc. 63; Opposition to Elwood’s Statement of Facts, p. 3 (¶¶ 12-16), p. 4 (¶¶ 41-42), p. 5 (¶ 48); Opposition to HMA’s Statement of Facts, p. 7 (¶ 48); [p]laintiffs Statement of Facts, p. 9 (¶ 8). Plaintiff additionally makes allegations based on the Injury Report within her brief at page 15 and this reference should similarly be struck or disregarded.

(Doc. 67 at 7(¶ 14)). As far the court can tell, this paragraph, which is Elwood’s first paragraph in this section, gives no reason for striking anything. Otherwise, it appears that the defendants specifically attack the report only to the extent that it is cited to show that the plaintiff began spotting because she was straining to install doors. (Doc. 67 at 7(¶ 15); doc. 69 at 4(¶2), 5(¶ 3)).

HMA argues that the . report is “double hearsay, no exception applies, and cannot be used to prove that ‘straining to install doors caused [pjlaintiff to experience bleeding.’” (Doc. 69 at 4). The plaintiff does not respond to this argument, except to say that HMA “does not explain why it attaches [this] label to the report.” (Doc. 70 at 3-4).

The court disagrees with the plaintiffs argument that HMA has failed to explain why the report is hearsay. It identified the report (which is only one page long) and argues that it cannot be used to prove that “straining to install doors caused [p]laintiff to experience bleeding.” This is a clear reference to three sections of the report. The first describes the “nature of the injury” as “abdominal strain caused spotting.” (Doc. 64-1 at 1). The second described the task the plaintiff was doing as “while straining to install doors noticed spotting.” (Doc. 64-1 at 1). The third notes that the injury occurred “from straining to install doors.” (Doc. 64-1 at 1). It is clear that HMA is arguing that, to the extent that these portions of the report are cited to prove that the plaintiff started spotting because she was straining to install doors, they are hearsay. The plaintiff has made no attempt to show that the report is not hearsay, or to show that it falls within some exception to the rule. Further, the court affirmatively finds that, in the format presented, the document is hearsay, falling within no exception to the rule.

Even assuming that the report is not hearsay, the report states that it was completed based upon information provided by the plaintiff. (Doc. 64-1 at 1). The plaintiffs conclusion, contained in the report, as to why she began spotting, is inadmissible expert testimony from a lay witness. See, Wingster v. Head, 318 Fed. Appx. 809, 815 (11th Cir.2009) (“[M]edical causation ... presents a technical and scientific issue that requires the specialized knowledge of an expert medical witness.”) (citing Fed.R.Evid. 701, 702; Webster v. Offshore Food Serv., 434 F.2d 1191, 1193 (5th Cir.1970)); E.C. ex rel. Crocker v. Child Dev. Sch., Inc., 3:10-CV759-WKW, 2011 WL 4501560 at *9 (M.D.Ala. Sept. 29, 2011) (“[A] lay witness [cannot establish medical causation] ... or provide evidence that could be used as the basis for an inference of medical causation.”). This argument too was presented by both defendants. (Doc. 67 at 7; doc. 69 at 5). Again, the plaintiff does not respond to this specific argument and so has not carried her burden on this issue. The objections to the report are SUSTAINED, and the report will be stricken to the extent that it is cited to prove the cause of the plaintiffs spotting.

F. The Plaintiff’s EEOC Charge (Doc. 64-4)

The plaintiff cites statements made in her narrative attached to her EEOC charge. She insists that the charge is properly authenticated and has been signed under penalty of perjury. However, it has been noted:

“EEOC charges, grievances, and claims, including the investigations of such charges, grievances and claims of the [pjlaintiff and other former or current employees including the position statements of the complainants and the resolution or settlement of any such charges, grievances, or claims are inadmissible for a number of reasons, including on the basis of relevance, a Rule 403 balancing test, and hearsay.” Frazier v. Ind. Dep’t of Labor, No. IP01-0198-C-T/G, 2003 WL 21254424, at *4 (S.D.Ind. Mar. 17, 2003) (citing Tulloss v. Near N. Montessori Sch. Inc., 776 F.2d 150, 154 (7th Cir.1985)); see also Stolarczyk v. Senator Int’l Freight Forwarding, L.L.C., 376 F.Supp.2d 834, 841-42 (N.D.Ill.2005) (noting presumption of inadmissibility with EEOC charges and refusing to admit the plaintiffs charges even under the residual hearsay exception); Walker v. Fairfield Resorts, No. 3:05-0153, 2006 WL 724555, at *8 (M.D.Tenn. March 21, 2006) (noting that “an EEOC charge is hearsay and, even though sworn to under the penalty of perjury, inherently unreliable because the charge is drafted in anticipation of litigation”) (citation omitted).

Johnson v. AutoZone, Inc., 768 F.Supp.2d 1124, 1134 at n. 82 (N.D.Ala.2011) (Smith, J.); see also, Roxbury-Smellie v. Florida Dep’t of Corr., 324 Fed.Appx. 783, 785 (11th Cir.2009) (“The statements made by [EEOC interviewees], did not fall into the public records exception because they were not a factual finding made by the EEOC investigator, but rather a record of the interviews conducted by the EEOC investigator.... Accordingly,, the district court did not abuse its discretion when it determined the interview notes did not fall within the hearsay exception for public records.”). The plaintiff does not explain how the charge could be reduced to an admissible form at trial. The objections to the admissibility of the charge are SUSTAINED, and the charge will be stricken.

G. Statements About Co-Workers’s Job Duties

The defendants attack the following sections of the plaintiffs deposition testimony:

Q. So you’re saying you experienced stress from seeing one pregnant employee being treated more favorably than you?

A. Yes, because she had lighter duties. They were treating her with respect on how she was concerned about her unborn child. And still remaining with difficult tasks for me caused my injury, straining because of a dysfunctional machine that I reported that was—needed adjusting. I mean, just the stress of it all.

Q. And that was Jessica, right?

A. Yes.

Q. What were her lighter duties?

A. Her jobs—they would give her the easier jobs of her tasks, the ones that could meet a pregnant woman’s needs.

Q. What processes did she do before she was pregnant?

A. I don’t know the names of them, but just easy stuff like putting a little seal on, a door seal, just real simple stuff.

Q. Before she was pregnant, what job processes did she work on?

A. She had those and then she had some more harder ones that they would tell me about. I never seen them.

Q. Who told you about those?

A. Everyone from the zones. They discussed the task and difficulty levels of our jobs and ways to make it better. That’s how changes would be made is if you discussed it with fellow workers.

Q. So if I understand you correctly, you’re saying Jessica had some processes that were difficult before she was pregnant?

A. Yes.

Q. What were those processes?

A. I couldn’t tell you the names of them.

Q. And how do you know she had those difficult processes?

A. Just say we had four processes, two out of her four were up there in the difficulty level, like more exhilarating than the other ones. She’s pregnant down to two processes, rotating them every two hours, the two processes, that’s what I mean.

Q. How do you know that?

A. Because I would ask.

Q. Who did you ask?

A. Her.

Q. So did her processes change when she got pregnant?

A. Yes, it become more easier. The further she got along the more difficult it was for her to do anything.

Q. And what changed?

A. The difficulty level, like her treatment in general.

Q. But specifically with regard to her job duties, what changed?

A. The difficulty level of her job, like her processes would become easier is what I’m trying to say.

Q. And what did you observe or what do you know about her processes becoming easier specifically?

MR. PARKER: Objection, asked and answered. You can answer.

A. Just—I’m saying like from two hard processes, two easy processes, just sticking to two easy ones, not ever having to do the hard ones is what I’m trying to mean.

Q. And she is the one who told you this was happening?

A. Yes.

MR. PARKER: Objection, asked and answered. You can answer.

A. Just—I’m saying like from two hard processes, two easy processes, just sticking to two easy ones, not ever having to do the hard ones is what I’m trying to mean.

Q. And she is the one who told you this was happening?

A. Yes.

Q. When did she tell you that?

A. I mean, throughout the time that I was there because she noticed the treatment that I was receiving so she would talk to me.

Q. And who were her supervisors?

A. I can’t remember his name. It was the same team manager but a different supervisor.

Q. So Ricky Sanders was her team manager also?

A. Yeah.

Q. Any other facts that you base your claim on that you were discriminated based on your pregnancy?

A. , That’s it.

(Doc. 62-1 at 24(89)-25(92)). It is clear from this testimony that the plaintiff had no personal knowledge of the other processes that “Jessica” was doing. Elwood argues that the only basis for the plaintiffs claim that Jessica (last name unknown) was treated more favorably than her is other persons’ inadmissable hearsay statements that Jessica performed lighter duties during that time.

The plaintiff argues that these statements are not hearsay because Rule 801(d)(2) of the Federal Rules of Evidence provides that a statement offered against an opposing party, as this one is, is not hearsay if it is made by the party’s “employee on a matter within the scope of that relationship and while it is existed.” The court notes that this rule only protects such statements once a proper foundation is laid. See, Champ v. Calhoun Cnty. Emergency Mgmt. Agency, 226 Fed.Appx. 908, 912 (11th Cir.2007) (statements inadmissible if “made by someone [only] generally identified as an agent or employee”). There is no foundation for citing the statements of “[e]veryone from the zones.” Such a vague reference does not satisfy the plaintiffs burden. Similarly, although “Jessica” is at least identified, she is only identified by a first name, and, although she, like the plaintiff, performed “processes,” her job title is not identified in the testimony, and the plaintiff has pointed to no other evidence which would provide a foundation for her statement. Further, the testimony itself is vague as to the exact nature of the processes “Jessica” performed and how they were “easier.” The plaintiff even says: “I couldn’t tell you the names of them,” and only refers to them with phrases such as the “easy ones.” No proper foundation is laid for the admission of these statements either. See, Harrison v. Formosa Plastics Corp. Texas, 776 F.Supp.2d 438, 441 (S.D.Tex.2011) (“Harrison does not identify the names or job titles of any of the ‘current Formosa employees’ who allegedly made the statements in question. Harrison also fails to establish that these employees were authorized to speak on behalf of Formosa, or that the statements were otherwise made during the course of the speakers’ employment.”). The statements of these employees are hearsay and will be stricken.

II. THE MOTIONS FOR SUMMARY JUDGMENT

A. Standard

Under Federal Rule of Civil Procedure 56, summary judgment is proper if there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (“[S]ummary judgment is proper if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.”) (internal quotation marks and citation omitted). The party requesting summary judgment always bears the initial responsibility of informing the court of the basis for its motion and identifying those portions of the pleadings or filings that it believes demonstrate the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323, 106 S.Ct. 2548. Once the moving party has met its burden, Rule 56(e) requires the non-moving party to go beyond the pleadings in answering the movant. Id. at 324, 106 S.Ct. 2548. By its own affidavits—or by the depositions, answers to interrogatories, and admissions on file—it must designate specific facts showing that there is a genuine issue for trial. Id.

The underlying substantive law identifies which facts are material and which are irrelevant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). All reasonable doubts about the facts and all justifiable inferences are resolved in favor of the nonmovant. Chapman v. AI Transport, 229 F.3d 1012, 1023 (11th Cir.2000). Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Anderson, 477 U.S. at 248, 106 S.Ct. 2505. A dispute is genuine “if the evidence is such that a reasonable jury could return a verdict for the nonmov-ing party.” Id. If the evidence presented by the non-movant to rebut the moving party’s evidence is merely colorable, or is not significantly probative, summary judgment may still be granted. Id. at 249, 106 S.Ct. 2505.

How the movant may satisfy its initial evidentiary burden depends on whether that party bears the burden of proof on the given legal issues at trial. Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1115 (11th Cir.1993). If the movant bears the burden of proof on the given issue or issues at trial, then it can only meet its burden on summary judgment by presenting affirmative evidence showing the absence of a genuine issue of material fact—that is, facts that would entitle it to a directed verdict if not controverted at trial. Id. (citation omitted). Once the moving party makes such an affirmative showing, the burden shifts to the non-moving party to produce “significant, probative evidence demonstrating the existence of a triable issue of fact.” Id. (citation omitted) (emphasis added).

For issues on which the movant does not bear the burden of proof at trial, it can satisfy its initial burden on summary judgment in either of two ways. Id. at 1115-16. First, the movant may simply show that there is an absence of evidence to support the non-movant’s case on the particular issue at hand. Id. at 1116. In such an instance, the non-movant must rebut by either (1) showing that the record in fact contains supporting evidence sufficient to withstand a directed verdict motion, or (2) proffering evidence sufficient to withstand a directed verdict motion at trial based on the alleged evidentiary deficiency. Id. at 1116-17. When responding, the non-mov-ant may no longer rest on mere allegations; instead, it must set forth evidence of specific facts. Lewis v. Casey, 518 U.S. 343, 358, 116 S.Ct. 2174, 135 L.Ed.2d 606 (1996). The second method a movant in this position may use to discharge its burden is to provide affirmative evidence demonstrating that the non-moving party will be unable to prove its case at trial. Fitzpatrick, 2 F.3d at 1116. When this occurs, the non-movant must rebut by offering evidence sufficient to withstand a directed verdict at trial on the material fact sought to be negated. Id.

B. Facts

1. HMA and Elwood

HMA employs approximately 4,000 individuals at its Lincoln, Alabama plant. Certain employees, called “Process Associates” and “MSTs” by the parties, work on the assembly line, and are engaged in the daily tasks of assembling Honda Odyssey, Pilot, Accord, and Ridgeline vehicles. Process Associates perform “processes.” Although not specifically defined by the parties, based upon their usage of the term in their filings, it is clear that a “process” is a job, comprised of several steps, which a worker does over and over. Some workers at HMA are permanent employees of that company. Others are contingency workers provided by an outside staffing agency.

Elwood serves as a staffing agency for HMA, and provides a contingent workforce based on the labor needs of HMA. Elwood associates work with HMA associates to perform their production processes. Individuals who work directly for- HMA have no relationship to Elwood. They are subject to different terms and conditions of employment than Elwood associates who work for HMA. (Doc. 59-5 at 3). HMA can bring information to Elwood about Elwood associates, which could be taken into consideration on employment issues. (Doc. 39-2 at 16(52)). However, Elwood is responsible for hiring, disciplining, compensating, and terminating its temporary associates assigned to HMA. Elwood employs on-site supervisors at HMA that supervise Elwood’s temporary associates assigned to work at HMA. HMA plays no role in the administration of FMLA leave to Elwood associates. It is undisputed that, at all times during an assignment, Elwood associates remained employees of Elwood and could have their assignment ended only by Elwood.

Elwood associates who complete a certain number of hours, fulfill attendance requirements, and have satisfactory performance, may submit an application for employment at HMA, but are not guaranteed a position. Other than to provide HMA with performance evaluations, Elwood has no role in the permanent placement of employees with HMA. (Doc. 39-2 at 16(53)).

2. Employment Policies of HMA and Elwood

At all relevant times, HMA has had in effect an Equal Employment Opportunity Policy and Mutual Respect Policy, both of which strictly prohibit any form of discrimination and harassment in all terms and conditions of employment, including, but not limited to, discrimination and harassment based upon pregnancy, sex, race, and disability. The policies require an associate that believes he or she has been the target of, or who has observed, any form of discrimination or harassment to immediately report it to his or her Team Manager, Department Manager, an Associate Relations Representative, or the Department Manager of Human Resources. The policies also prohibit any form of retaliation against an associate who reports a concern about discrimination or harassment. The policies are found in HMA’s Associate Handbook, and are distributed to associates upon hire.

Elwood trains all new hires assigned to HMA on discrimination and harassment and how to report such claims. At the outset of their assignment, Elwood associates receive an Assignment Guidebook and in-person training, which explains HMA’s Mutual Respect Policy and tells them to whom they must report concerns. Elwood associate concerns must be immediately reported to the Elwood On-Site Manager or On-Site Supervisor, the HMA Team Manager, or an HMA Associate Relations Representative. Elwood’s Assignment Guide Book (“the Guide Book”), which is provided to all new Elwood hires assigned to HMA, prohibits harassment on any unlawful basis as well as unlawful retaliation. The Guide Book contains a disclaimer making clear that: “[ajssignments can end at any time;” Elwood “reserves the right to alter its policies and procedures at any time without notice;” and “[njothing in this guide book should be considered a contract or a guarantee of employment by either Elwood Staffing and/or HMA. All HMA ... workforce assignments are continent and based strictly upon a business need for certain types of manpower.” (Doc. 36-3 at 17). It is undisputed that the Guide Book in no way establishes any obligation on Elwood’s part to pay for time off work due to medical visits or to pay medical bills for on-the-job injuries; it only speaks to the issue in terms of requiring that employees report injuries immediately.

HMA provides a restriction placement search for associates who may be ADA-qualified or have permanent restrictions due to an occupational injury. HMA only creates so called “light duty” assignments for associates who have suffered compen-sable on-the-job injuries. (Doc. 62-5 at 3).

Elwood provides light duty in instances where its employees suffer an on-the-job injury, of which it is made aware, who need restrictions in order to continue working. (Doc. 36-4 at 19(65)). Additionally, Elwood engages in an interactive process to determine whether it can reasonably accommodate qualified individuals with disabilities as defined by the Americans With Disabilities Act. (Doc. 59-5 at 3). With regard to non-work-related medical conditions, including pregnancy, Elwood tries to work with its client locations to see if the associate’s personal restrictions can be met, but it does not have a formal “light duty” program for personal medical restrictions. (Doc. 36-4 at 20(66)). Elwood handles requests for personal medical restrictions related to pregnancy in the same manner it handles requests for personal medical restrictions related to other non-work-related condition. (Doc. 59-5 at 3).,

3. The Plaintiff’s Assignment at HMA

The plaintiff began working at the HMA facility on or about July 15, 2010, in the position of “MST” or manufacturing support technician. She was assigned to work in HMA’s Assembly Frame Department, Line 2, Zone 23. She estimates another eight to ten Elwood employees, and eight to ten HMA employees, worked alongside her during her shift.

MSTs generally were assigned four different two-hour processes each shift. The processes were rotated between employees “for ergonomical purposes because being on certain processes for a certain period of time prolonged can cause serious damage.” (Doc. 39-1 at 76(295)). Accordingly, every 2 hours the plaintiff would stop working on one process and rotate to another. The plaintiff testified that the process rotation schedule was “supposed to be generated by [a] computer program,” but that during her assignment it was done “[w]ith physical changes ... to it.” (Doc. 39-1 at 76(294)). She explained that “physical changes” meant “[rjemoving people off line through the system to make sure the rotation was still balanced out.” (Doc. 39-1 at 76(294)). Elwood plays no role in the process-rotation schedule or in the assignment of processes.

At different times while she was at HMA, the plaintiff worked on three models of vehicles: Accords, Pilots, and Ridge-lines. She was certified to perform five processes which she identified as: “left front door,” “left roof rail,” “assist side cowl top,” “installing DVD players,” and “placing vehicle identification numbers on the vehicles.” Her processes required her to lift, bend, and climb in and out of vehicles on a rotating basis. She did these same 5 processes the entire time she worked in the HMA plant. (Doc. 39-1 at 16(56-57)). As to what processes her co-employees were certified, or “signed off on” to perform, the plaintiff stated: “Like we all signed off on a list, but unless the same person did the same thing you wouldn’t know it because you wouldn’t be seeing it assigned.” (Doc. 39-1 at 76(294)). While working at HMA, her work was overseen by her Team Coordinator, Isaac Henderson, who was an HMA employee and white. Henderson reported to ■ Ricky Sanders, Team Manager, who was also a white HMA employee.

Elwood too had direct supervision over the plaintiff while she worked at the HMA plant. Elwood employed Alan Balmer, who is white, as a project plant manager at HMA. Additionally, Elwood employed several persons in the position of “On-Site Supervisor” (“OSS”), including Casey Green, Robin Webb, B.B. Campbell, and Amanda Souza. Green, Webb, Souza, and Campbell are all white. On-Site Supervisors are responsible for administering Elwood’s policies and overseeing the staffing program on a daily basis. Balmer stated in his deposition that only “Elwood,” and particularly Green, Webb, Souza, Campbell, and himself, had the authority to issue discipline to the plaintiff. (Doc. 39-2 at 16(52-53)).

When the plaintiff began her position at HMA she understood that she was not guaranteed employment with HMA. She received Elwood’s Assignment Guidebook and received training on HMA’s Mutual Respect Policy and reporting procedures. She understood that she could report any concerns to Elwood’s On-Site Supervisors, her HMA Team Manager or HMA Associate Relations.

4. Plaintiff Requests Light Duty Due to Pregnancy

Plaintiff has no complaint about her treatment by Elwood or HMA prior to April 2011. At that time, she learned that she was pregnant and informed Henderson shortly thereafter. Thereafter, before July 21, 2011, but after she became pregnant, she “complained [to Henderson] about ... being rotated to do doors twice a day when [she] had five ... processes.” (Doc. 39-1 at 19(69)). She complained “because it’s difficult when you’re doing doors twice. It really is strenuous.” (Doc. 39-1 at 19(69)). Henderson told her that “if [she] had any complaints about the activity being too difficult that [she] needed to talk to Ricky Sanders.” (Doc. 39-1 at 19(69)). She spoke to Sanders and “requested to take it a little bit easy on the doors because I was pregnant and it was difficult.” (Doc. 39-1 at 19(69)). In response, Sanders told her that “if [she] didn’t like it that [she] could go home and go home means quit.” (Doc. 39-1 at 19(69)).

5. The Events of July 21, 2011

The plaintiff states that she was able to perform all functions of her job up until July 21, 2011. (Doc. 39-1 at 28 (103-104)). On July 21, 2011, the plaintiff began her shift at 4:30 p.m. Late in her shift, the plaintiff had to strain while installing doors on a Ridgeline vehicle. She later went to the restroom and discovered that she was experiencing vaginal bleeding. (Doc. 39-1 at 38(143)). She reported the bleeding to Henderson and filed an injury report. Henderson told her to go to the on-site medical clinic, and the plaintiff complied. The on-site clinic said that it could not adequately meet the needs of a pregnant woman and recommended that the plaintiff seek emergency treatment.

The plaintiff was seen by her outside doctor that night. The plaintiff testified that her doctor gave her “[j]ust basic treatment to make sure that everything was okay.” (Doc. 39-1 at 56(217)). The doctor “said I could go back to work, just whatever that I was doing don’t do that again, like take it real easy, let them know that it’s an issue.” (Doc. 39-1 at 39(149)). The doctor told her that “whatever [she] did to stress it and strain it, don’t do it for a few days.” (Doc. 39-1 at 83(323)).

She reported back to work the next day before beginning her shift at the regular time. However, from then on her ability to work was affected. She stated that

The two processes that really gave me trouble was putting the door on and installing DVD players because it involved me jumping in and out of the back seat and immediately squat to put on a door seal and that was strenuous car after car for two hours.

(Doc. 39-1 at 29(107)). She testified:

I was told by medical doctors that I need to take it easy for a little while, too much stress and strain while pregnant can cause complications. The nurses that seen me on site the next day told me that I was clear to go or whatever, that it says that I needed—had limitations. I gave those limitation[s] to Isaac, he reviewed them with Ricky and that day I was still on doors, Ridgeline. I mean, it was all the same, nothing ever changed.

Q. So you say you had work restrie- . tions the day you went back to work on July 22nd?

A. Yes.

Q. Where did you get those from?

A. From my actual ob/gyn. They were who saw me in labor and delivery because after a certain point in time you go to them instead of ER.

Q. What were those restrictions?

A. Easy on the bending, the lifting of the door, any of that. I need to not do that for a little while to make sure I didn’t further complicate things.

Q. And that was due to the pregnancy?

A. Yes. Like the strain from the door caused me to stress my pregnancy and caused me to bleed.

Q. So what accommodations did you need in your job?

A. Just easy on the lifting part.

(Doc. 39-1 at 28(104-105)).

The plaintiff was not undergoing any kind of “treatment” for anything related to the spotting except normal prenatal care. (Doc. 39-1 at 56(217)). She had no further complications and nothing else happened during that time. She was given no medication and had only one follow up a week later to make sure the bleeding had stopped. (Doc. 39-1 at 56(217)).

The plaintiff states that the day she came back to work “I had to report to Casey or Robin, whichever one it was, and then go out on the line and that’s when I said who is going to be paying the medical bill.” (Doc. 39-1 at 30(111)). The following exchange took place in her deposition:

Tell me about your conversation with her about the Workers’ Comp benefits, payment for medical bills.

A. When I received an on-the-job injury I left and they told me if I was to leave, because it was during the middle of the shift, that I would receive a point or two and that I told her about the medical staff there said that they cannot meet the demands of a pregnant woman, that I need to seek emergency attention, so I left to do so.

Q. When did the medical staff there say that? A. The night of the injury.

Q. And what was her response?

A. The following day was her response on the workman’s comp paying the bills or whatever, the medical bills.

Q. What did she say?

A. She said that she’ll get back to me. That’s all I heard.

(Doc. 39-1 at 15(50-51)). Neither HMA nor Elwood ever treated the July 21 incident as an on-the-job injury; a First Report of Injury was never completed.

6. The Plaintiff Provides Work Restrictions

The plaintiff stated that her request for light duty was “to keep [her] from further stressing [her] pregnancy,” and to prevent “complications.” (Doc. 39-1 at 44(167), 53(203), 28(104)). Balmer asked the plaintiff to bring in specific information about her request for “light duty.” The plaintiff stated that “it upset me that I had to get restrictions period. They knew the circumstances of being pregnant and what comes along with it starting with bathroom and then going to [sic] they asked for the light duty restrictions.” (Doc. 39-1 at 44(167)). She thinks that Elwood should have just known what her light duty restrictions were, “[a]s any other pregnant woman working at Honda and getting certain limitations they follow the same guidelines.” (Doc. 39-1 at 44(167)).

On August 11, 2011, the plaintiff provided Elwood with a completed Certification of Health Care Provider for the purposes of Family and Medical Leave Act (“FMLA”) administration. The Certification indicated that the plaintiff was “pregnant with a due date of 11/29/11,” and that she could “work only light duty at this time.” (Doc. 36-3 at 26). On or about August 16, 2011, the plaintiffs doctor wrote her restrictions limiting her to “no lifting over 25 pounds, no climbing in and out of cars and no bending.” (Doc. 36-3 at 29). When asked in her deposition if the restrictions were due to her pregnancy, she stated: ‘Tes. Like the strain from the door caused me to stress my pregnancy and caused me to bleed.” (Doc. 39-1 at 28(105)). That same day, after receiving the plaintiffs letter from her physician, Webb sent Ricky Sanders an email which read:

Which of the following processes below would not require Randi to left pounds or more? OR to climb in and out of the vehicle? OR to bend?

In other words ... Which ones could she perform with the named restrictions?

Thanks!

Pilot:

Right Side Roof Rail

Assist Side Cowl Top

Left front door

RES & AT Labels

Ridgeline:

Left front door

Right Roof Mold

(Doc. 39-2 at 37). Again, that same day, Sanders responded: “Maybe AT Label. But she would have to bend over to install some of the labels. So, really none.” (Doc. 39-2 at 37).

Henderson and Sanders both stated in their affidavits that they are familiar with the following processes performed within the plaintiffs zone: Left Front Door, Right Roof Rail, Assist Side Cowl Top, Right Roof Mold, RES, and AT Label. (Doc. 62-3 at 4; 62-4 at 5). They both stated that “[a]ll of these processes require the associate performing them to bend. Most of these processes require the associate to bend, lift, and/or climb in or out of vehicles.” (Doc. 62-3 at 4-5; 62-4 at 5).

The plaintiff agreed that her “regular job duties as they were then in AF required some amount of lifting 25 pounds and some amount of climbing in and out of cars and bending.” (Doc. 39-1 at 54(206)) (emphasis added). One of these processes, installing DVD players, required her to climb in and out of cars. (Doc. 39-1 at 53(205)). She agreed that this was a process she could not do. (Doc. 39-1 at 53(205)). When installing doors, she would have to lift weights up to and greater than 25 pounds. (Doc. 39-1 at 53(205)). She also testified that “[t]he bending had part of the same process. It was putting on the door seal in the same DVD process.” (Doe. 39-1 at 53(205)). When asked to identify a job in her zone, which was not one of her regular jobs, but which she felt she could have done with her restrictions, the plaintiff identified putting vehicle identification numbers on vehicles. (Doc. 39-1 at 29(107)). The following exchange took place in the plaintiffs deposition:

Q. So Robin and Casey would not allow you to work light duty even though they were aware you were suffering from an injury?

A. All of them said that they couldn’t find anything at Honda to place me on a lighter duty restriction, they couldn’t meet those recommendations. So I asked if I could be placed somewhere else that was other than Honda and still be able to come back to Honda after my FMLA leave. I never got anything.

(Doc. 39-1 at 56(215)). In her deposition, she was clear that she did not know what HMA did to try to accommodate her restrictions.. (Doc. 39-1 at 81(316)).

At the time of the events at issue in this action, Kimberly White was employed by HMA as an Associate Administrator of Associate Relations at the plant. (Doc. 62-5 at 2). Her job included various human resources functions. (Doc. 62-5 at 2). In her affidavit she stated:

Elwood informed me that Ms. Abbott’s Team Manager and Team Coordinator had reviewed Ms. Abbott’s work restrictions and the production processes she was required to perform ... and concluded that Ms. Abbott could not perform her assigned processes with her personal restrictions. Because Ms. Abbott was neither ADA-qualified nor permanently restricted due to an occupational injury, a restriction placement search outside of her assigned zone was not performed.

(Doc. 62-5 at 7-8).

On August 17, 2011, Balmer e-mailed the Oxford Elwood Branch to see if there were any available positions with other clients which would meet the plaintiffs personal medical restrictions. (Doc. 59-5 at 4). He then called the branch office and learned that there were no such assignments available. (Doc. 59-5 at 4). Balmer also sent an e-mail to White asking if there were any other positions at HMA where the plaintiff could work within her restrictions. White responded that HMA could not accommodate the plaintiffs specific personal medical restrictions. The plaintiff specifically inquired with Elwood about a job as a receptionist that she thought she could do with her restrictions, but Elwood told her that “it couldn’t meet [her] restrictions either.” (Doc. 39-1 at 43(164-165)).

Because the plaintiff could not perform her processes at HMA, and because Elwood had no other positions available which could meet her personal medical restrictions, she was approved to take FMLA leave based on her FMLA Certification. (Doc. 59-5 at 4). Elwood approved the plaintiffs request for FMLA leave associated with her pregnancy starting August 15, 2011, and she received twelve weeks of FMLA leave. The extent of her FMLA retaliation claim is that she was required to take her FMLA leave “too early,” which meant she did not have leave available to cover her recovery time after childbirth.

7. Plaintiff Exhausts Her FMLA Leave

On November 9, 2011, Balmer informed the plaintiff that she had exhausted her FMLA leave. (Doc. 39-1 at 55(210)). The plaintiff requested an extension' of FMLA unpaid leave beyond her 12 weeks which was not granted. (Doc. 39-1 at 34(129)). It was the plaintiffs understanding at that point that Elwood would allow her to return to work if she could do her regular job duties, but she could not because she was still pregnant. (Doc. 39-1 at 55(210)). The plaintiff told Balmer that she was “more than happy to work under the same guidelines that I had already asked about, the restrictions up until [the birth of her child]. So I was more than glad to work up until that date .... [w]ith my restrictions.