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Click here for the full text of this decision FACTS:Amanda Dutton appeals from the district court’s grant of summary judgment in favor of her former employer, University Healthcare System, doing business as Tulane University Hospital and Clinic, which dismissed her claims under the Family and Medical Leave Act Amanda Dutton worked as a supervisor in Tulane’s Business Services Office from March 1999 to December 2001. Dutton was initially responsible for non-governmental billing and collections; her immediate supervisor was Mike Lane, director of the BSO. The BSO reorganized in 2000, centralizing its billing and collections function at one location in Texas. The district court determined that Tulane gave Dutton and her colleagues notice that, as a result of the reorganization, their department would be closing. In that same year, Lane was replaced by Mary Failla as Dutton’s immediate supervisor. As part of Failla’s own reorganization, Dutton lost supervisory authority over non-governmental billing but kept supervision over non-governmental collections. To assist and educate personnel in the business office, Failla hired an outside consulting firm, Coast to Coast Consulting Inc. From October 2000 until mid-December 2000, Tulane alleges that Coast Consulting evaluated ongoing problems in the department, including problems with Dutton’s performance and with her staff. The district court determined that, despite Failla’s efforts to improve Dutton’s performance, Failla observed and documented continued problems with Dutton and her staff in the area of collections and collection follow-ups. In June of 2001, Dutton requested and was granted leave under the FMLA. Dutton’s leave extended from June 20, 2001 to August 20, 2001, while she underwent removal of a fibroid tumor on her uterus. During Dutton’s leave, Tulane contracted services for part of her duties to Advanced Receivables Strategy Inc., a company specializing in billing and collections. ARS’ task was to perform many of Dutton’s duties, offer suggestions on how to improve her staff’s performance, and to train Dutton’s staff to perform more efficiently. Tulane alleges that during Dutton’s absences, two ARS employees, Elizabeth Mirck and Carlo Ianni, discovered serious deficiencies in Dutton’s performances in the area of collections, including more than 1,000 of Dutton’s accounts had not been worked up and that Dutton had a backlog of mail that had never been opened. The ARS employees conveyed to Failla a list of violations by Dutton. On Aug. 20, 2001, Failla issued Dutton a written warning, listing all the violations communicated by the ARS employees. On Aug. 21, 2001, the day Dutton returned from leave, Tulane alleges Failla presented Dutton with a list of the violations and the corrective actions to cure them. Tulane also alleges that Failla counseled her concerning the infractions. In a written memorandum, Dutton later denied most of the violations raised by Failla. In October 2001, Dutton requested a second leave from Oct. 15, 2001 to Oct. 22, 2001, to undergo additional medical procedures arising from, she claims, complications from the first medical procedure. Dutton was permitted to take the second leave, despite the fact that neither Dutton, nor Tulane, designated those absences as FMLA leave. On Nov. 1, 2001, Failla reviewed Dutton’s file and discovered that more than 1,000 accounts had not been worked up. Failla requested Dutton to work up the accounts by Nov. 9, 2001. When Failla reviewed those files on Nov. 9, she found that more than 1,000 accounts still had not been worked-up. The district court determined the dollar amount of the accounts amounted to $556,732.04. Dutton was subsequently terminated on Dec. 4, 2001. Dutton filed suit alleging that Tulane violated 2601-2654 of the FMLA by retaliating against her for taking protected medical leave. Dutton specifically contended that Tulane retaliated against her by: 1. writing her up after her return from FMLA leave; 2. failing to restore her to the position she held prior to her leave; 3. holding her to a higher standard of performance after her return from leave; and 4. terminating her shortly after returning from her second FMLA leave. Dutton also alleged that Tulane violated her rights under the Americans With Disabilities Act by discriminating against her because of a disability. The parties subsequently filed opposing motions for summary judgment. After the district court granted Tulane’s motion for summary judgment, Dutton filed this appeal. HOLDING:Summary judgment and attorney’s fee award affirmed and motion for additional attorney’s fees granted in part. The court finds that the record evidence is sufficient to find that Tulane’s proffered reasons are not incredible as a basis for its decision to terminate Dutton. Thus, the question becomes whether Dutton has proffered substantial probative evidence that Tulane’s reasons for discharging her were false. The court notes that Dutton puts forth competing assertions concerning whether she indeed had poor work performances and continually failed to meet Failla’s work expectations. Dutton “does not marshal sufficient objective evidence to allow for a reasonable inference that Tulane was motivated by retaliation. For example, she produces no counter-reports, aside from her self-serving written denial of the ARS employees’ findings, to rebut Tulane’s third-party’s report listing a host of workplace failures by her. She produces no affidavits or deposition testimony from other supervisors or credible employees attesting to the fact that the ARS employee’s report was inaccurate or false. There is no actual proof that Failla was indeed responsible for her accounts while she was out on leave, and no proof to sufficiently rebut Tulane’s assertion that she neglected to open weeks worth of incoming mail.” Further, Dutton’s inability to rebut her employer’s proffered business reasons for terminating her is further hindered by her own deposition testimony, the court states. Regarding the ADA claim, the only element that was at issue in establishing that she had a disability was the “regarded as” prong. The court finds that there is no evidence to create a genuine issue of material fact that Tulane ever regarded Dutton as disabled. After dismissing all of Dutton’s claims with prejudice, the district court awarded Tulane $21,787.50 in attorney’s fees it incurred in defending Dutton’s claims under the ADA. Section 12205 of Title 42 of the United States Code allows a court to award the defending party of an ADA action, “reasonable attorney’s fees, including litigation expenses and costs,” if the court finds the plaintiff’s claim was “frivolous, unreasonable, or without foundation, even though not brought in subjective bad faith.” The district court’s award of attorney’s fees to Tulane in the amount of $21,787.50 was not an abuse of discretion, the court determines. The court also awards $10,000 as reasonable attorney’s fees for this appeal and assesses costs against Dutton. OPINION:Per curiam; King, C.J., Benavides And Stewart, JJ.

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