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finding no evidence of retaliation because employee merely told mid-level supervisor that she felt supervisor had been "unfair" in actions
Summary of this case from Rowlin v. Alabama Dep't of Pub. SafetyOpinion
Civil Action 00-D-61-E.
December 27, 2000.
Richard J. Stockham III, Stockham Stockham, Birmingham, AL, For Plaintiff.
Richard C. "Mike" Brock, Rushton, Stakely, Johnston Garrett, Montgomery, AL, For Defendant.
MEMORANDUM OPINION AND ORDER
Before the court is Defendant's Motion For Summary Judgment, which was filed on October 11, 2000, along with a supporting brief. Plaintiff filed a Response on October 31, 2000, along with a supporting brief, and Defendant issued a Reply on November 20, 2000. After careful consideration of the arguments of counsel, the relevant law, and the record as a whole, the court finds that Defendant's Motion is due to be granted.
The court granted Plaintiff's motion to substitute briefs, which was filed timely. The court has considered only the substituted brief, and notes that Plaintiff's evidentiary submission was not changed.
I. JURISDICTION AND VENUE
The court has subject matter jurisdiction over this lawsuit under 28 U.S.C. § 1331 (federal question), 42 U.S.C. § 1981 (Civil Rights Act of 1991), and 42 U.S.C. § 2000e (Title VII). The parties do not contest personal jurisdiction or venue.
II. SUMMARY JUDGMENT STANDARD
The court construes the evidence and makes factual inferences in the light most favorable to the nonmoving party. See Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Adickes v. S.H. Kress Co., 398 U.S. 144, 157 (1970). Summary judgment is entered only if it is shown "that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." FED. R. CIV. P. 56(c).
At this juncture, the court does not "weigh the evidence and determine the truth of the matter," but solely "determine(s) whether there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50 (1986) (citations omitted). This determination involves applying substantive law to the substantive facts that have been developed. A dispute about a material fact is genuine if a reasonable jury could return a verdict for the nonmoving party, based on the applicable law in relation to the evidence developed. See id. at 248; Barfield v. Brierton, 883 F.2d 923, 933 (11th Cir. 1989). The moving party bears the initial burden of establishing the absence of a genuine issue of material fact. See Celotex, 477 U.S. at 323. The burden then shifts to the non-moving party, which "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Corp. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). An action will be dismissed when the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party. See id. at 587.
III. FACTUAL BACKGROUND
The issue in this case is whether racial or retaliatory animus played a role in the decision to terminate Plaintiff Jan Pearson, a black female, from her position as a certified nursing assistant at Defendant's elderly care facility in Dadeville, Alabama. The Dadeville facility ("Defendant" or "Dadeville") issues periodic work schedules listing the dates and times when its employees should report for duty. When Plaintiff was first hired in January 1999, she signed a written form indicating that she had read and understood the policies. (Def. Ex. 9, 10.)
The facility's director of nursing gave Plaintiff verbal permission to work different hours from the ones she was assigned on June 19, 1999 and June 20, 1999. (Pearson's Dep. at 59-60.) When she was at work, Plaintiff and her work supervisor had some personal difficulties. (Chapman Aff.; Pl. Ex. 4.) More relevant to this case, however, is that Plaintiff worked those days without obtaining prior written permission from Kay Jennings, the facility administrator who is responsible for making and setting the work schedule. Plaintiff's actions were in violation of one of Defendant's written employment policies, which requires that employees "work in accord with the assigned work schedule only. No overtime shall be permitted under any circumstances without prior written permission from an authorized supervisor." (Def. Ex. 9.) Jennings is the only person authorized to change the work schedule. (Id. Ex 2 #3 at 1-2.)
On June 21, Jennings met with Plaintiff and another supervisor to discuss Plaintiff's work conflicts. At the time Jennings scheduled the meeting, she did not know that the hours Plaintiff had worked were different from the ones printed on the weekly work schedule. (Def. Ex. 2 #3, 7.) At some point, however, Jennings became aware that Plaintiff was not scheduled to work those days. Plaintiff knew from prior experience at Dadeville that she was not permitted to work unauthorized hours or to alter the work schedule. (Pearson's Dep. at 21-22.) Her supervisors had approved changes to the work schedule on prior occasions, but there never was a time when Plaintiff had deviated from the work schedule without obtaining additional approval, in writing, from Jennings. (Id.; Def. Ex. 2 #3, #7.) In addition, Plaintiff has no knowledge of any white Dadeville employees who were not terminated for writing their names on the work schedule or for working unscheduled hours without prior permission. (Pearson's Dep. at 19-23, 82-84.)
As a result of Plaintiff's actions, the facility was understaffed during the times when Plaintiff was scheduled to work and overstaffed during the times when she actually did work. (Chapman Aff.; Def. Ex. 2 #4, 7.) During the June 21 meeting, Jennings informed Plaintiff that she had "committed "a serious offense and that she was going to be terminated." (Def. Ex. 2 #3.) Plaintiff was temporarily suspended by an employee named Carole Edmondson, (Pl. Ex. 3), and Jennings subsequently spoke to Molly Chapman, the president and chief operating officer of the nursing facility, and recommended that Plaintiff be terminated. Chapman made the decision to terminate Plaintiff on June 25 after consulting with Jennings and another administrator, but not Edmondson. (Chapman Aff.) The grounds for termination were unauthorized changing of work schedules, unauthorized working, and unauthorized overtime working. (Def. Ex. 2 # 1, 3-5, 7.) Plaintiff has acknowledged that Jennings "never conducted herself in a racially discriminatory way." (Pearson's Dep. at 99.)
The pages in Plaintiff's Response are not numbered. On the seventh page of the Response, Plaintiff's counsel states that Chapman was the ultimate decisionmaker with respect to personnel matters. Chapman confirms this fact. (Chapman Aff.)
Plaintiff suggests that Jennings might be biased because Plaintiff thinks that "whoever made the decision to fire me" is biased. (Pearson's Dep. at 99-100.) The record clearly reflects that Chapman, not Jennings, made this determination. (Chapman Aff.)
At this juncture, the court points out several facts. First, although Plaintiff refers to a deposition of an employee named Donna Edwards, Plaintiff's evidentiary submission does not include such material. Second, the court notes that Plaintiff has not submitted pages 122-27 and 140-46 of her own deposition, which contains the most relevant material in this entire case. Third, the court notes that there is no Plaintiff's Exhibit 15, despite the fact that Plaintiff refers to the same. Accordingly, the court will not consider any arguments drawing upon Edwards' alleged deposition or the elusive Exhibit 15.
Each and every other deposition submitted by Plaintiff contains a complete transcript. The court, in examining the missing pages of Plaintiff's deposition, relied upon the materials submitted by Defendant.
The court construes Plaintiff's Amended Complaint as alleging that she was terminated due to Defendant's reliance on forbidden criteria. (Am. Compl. ¶ 7.) Plaintiff has filed three claims against Defendant, alleging breach of contract and violations of Title VII, 42 U.S.C. § 2000e, and the Civil Rights Act of 1991, 42 U.S.C. § 1981. At the outset, the court finds that Plaintiff has abandoned her breach of contract claim. Defendant filed a sufficient motion for summary judgment, and Plaintiff failed to respond. See Trust Corp. v. Dunmar Corp., 43 F.3d 587, 599 (11th Cir. 1995) (abandoned claims); Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1115-17 (11th Cir. 1993) (summary judgment standard). Moreover, for the reasons explained below, the court finds that her remaining claims are due to be dismissed.
IV. DISCUSSION A. Race Discrimination
The court first turns to Plaintiff's claim that her termination was the product of race discrimination. The ultimate question in a discriminatory discharge case is whether the defendant acted with discriminatory intent. See Jones v. Gerwens, 874 F.2d 1534, 1539 (11th Cir. 1989). Plaintiff may seek to prove discrimination by relying on either direct, circumstantial, or statistical evidence. See Holifield v. Reno, 115 F.3d 1555, 1561-62 (11th Cir. 1997). In this case, Plaintiff argues that she has produced sufficient circumstantial evidence for her claims to survive summary judgment. Thus, the familiar McDonnell-Douglas burden-shifting analysis applies. See Texas Dep't of Community Affairs v. Burdine, 450 U.S. 428 (1981); McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
Under the McDonnell-Douglas framework, a plaintiff must first raise an inference of discrimination by establishing a prima facie case. In discriminatory discharge cases, this generally requires showing that: (1) Plaintiff is a member of a protected class; (2) Plaintiff was qualified for the job from which she was discharged; (3) Plaintiff was discharged in fact; and (4) Plaintiff's former position was filled by someone outside her protected class. See Holifeld, 115 F.3d at 1561-62; Edwards v. Wallace Community College, 49 F.3d 1517, 1521 (11th Cir. 1995).
A prima facie case causes the burden to shift to the defendant, who must proffer a legitimate, non-discriminatory reason for the adverse employment action. The employer's burden is "exceedingly light." Meeks v. Computer Assoc. Int'l, 15 F.3d 1013, 1019 (11th Cir. 1994). The burden then shifts back to the plaintiff, who must show that the employer's proffered reasons are a pretextual cover for discrimination. Combs v. Plantation Patterns, 106 F.3d 1519, 1539 (11th Cir. 1997).
If the employee does not offer sufficient evidence showing that each and every proffered reason is pretextual, then summary judgment is generally appropriate. See Chapman v. Ai Transp., 229 F.3d 1012, 1024, 1030, 1037 (11th Cir. 2000) (en banc). If the employee meets this burden, however, then summary judgment is generally inappropriate, see id. at 1025 n. 11, and the trier of fact may then infer the ultimate fact of discrimination from the falsity of the employer's explanation. See Reeves v. Sanderson Plumbing Prods., 530 U.S. 133, 120 S.Ct. 2097, 2108-09 (2000).
In this case, Plaintiff has failed to produce any evidence to support the fourth element of the prima facie case. The court finds no evidence that she was replaced by someone outside her protected class, that the position was held vacant, or that she was temporarily replaced by someone within her protected class in a nefarious attempt by Dadeville to avoid liability. In addition, while Plaintiff was scheduled to work at a certain time, she fail to show up for work and also worked at two other times when she was not scheduled to do so. She knew that she could not change the work schedule unilaterally, and she knew that she could be terminated for failing to abide by the schedule or for failing to comply with the standard procedures to be used when deviating from it. (Pearson's Dep. at 20-22; Chapman Aff.; Def. Ex. 2 #3, 5-7.) Plaintiff has produced insufficient evidence that any other employee, who had ever violated the work rules at issue in this case, was not terminated for his or her misbehavior. (Pearson's Dep. at 82-84.) Thus, there is insufficient evidence to find that Chapman's termination of Plaintiff resulted from the selective enforcement of work rules in a racially discriminatory manner. As a result, the court finds that Plaintiff has failed to set forth a prima facie case of discriminatory discharge. No rational jury could find that Plaintiff's termination was the product of discrimination.
In the alternative, even assuming that the prima facie case has been satisfied, the court finds that Plaintiff has failed to cast doubt upon Defendant's proffered legitimate, nondiscriminatory reasons for her termination. In this case, Defendant states that it terminated Plaintiff because of her unauthorized work, unauthorized overtime, and unauthorized changing of the work schedule. (Chapman Aff.) The court finds that these are all valid reasons. See Meeks, 15 F.3d at 1019. Thus, the burden shifts back to Plaintiff to cast doubt upon Defendant's proffered reasons. Plaintiff responds only by stating: "Defendant claims that it terminated the [p]laintiff for a legitimate non-discriminatory reason, that is, putting herself on the schedule. Plaintiff submits that this is a pretextual reason and as grounds has offered testimony by herself and two others that the Director of Nursing had seen a white nursing assistant on numerous occasions [sic — missing verb] and had not disciplined her though she participated in terminating a black nursing assistant, Edwards[,] for the same thing." (Resp. at 7.) After this puzzlingly cryptic statement, Plaintiff refers to an irrelevant case and then claims that there is additional evidence of pretext from the fact that Edmondson told Plaintiff, "You people have no opinion," when Plaintiff discussed her suspension with Edmondson. (Pearson's Dep. at 40-41.) Plaintiff claims that Edmondson's statement shows discriminatory intent. (Resp. at 7 n. 6.) The court disagrees.
Plaintiff seems to suggest she was fired for sleeping on the job. This suggestion is unacceptable. It is the employer, not the employee, who proffers the non-discriminatory reasons for termination. See Chapman, 229 F.3d at 1030 n. 19 ("[p]laintiffs are not allowed to recast an employer's proffered reason.") All the evidence reflects that Plaintiff was fired for the reasons articulated in the Chapman affidavit.
First, the court addresses Edmondson's "you people" remark. The court refuses to consider this material because it was not cited in a manner that comports with the guidelines established in the Uniform Scheduling Order entered in this case. (Doc. No. 8 § 3.) See Twin City Fire Ins. Co. v. Colonial Life Acc. Co., 2000 WL 1785309 at *1 (M.D. Ala. 2000). In addition and in the alternative, the court finds that to the extent the comment has probative value, it is rendered a nullity by the fact that Edmondson played no role in Chapman's decision to terminate. Thus, Edmonson's actions were irrelevant to Plaintiff's termination. (Chapman Aff.) Moreover, the court finds that Plaintiff has failed to designate specific facts showing that there is a genuine issue for trial. See FED. R. CIV. P. 56(e); Nilssen v. Motorola, Inc., 963 F. Supp. 664, 674 (N.D. Ill. 1997) ("a motion for summary judgment is the `functional equivalent' of a trial in which it is asserted that material facts are not in dispute.") Plaintiff states that "[a]ll the employees on third shift were black," (Resp. at 5), and invites the court to read racism into Edmondson's remark. But she cites the court to nothing in the record to support this inference. Thus, her allegation is unsupported by any evidence. It is without merit. See LaChance v. Duffy's Draft House, Inc., 146 F.3d 832, 835 (11th Cir. 1998); Pelletier v. Zweifel, 921 F.2d 1465, 1507 (11th Cir. 1991). For all these reasons, the court finds that Edmondson's remark is insufficient to raise a genuine issue of material fact as to whether Plaintiff's termination was the product of discrimination. See Chapman, 229 F.3d at 1025 n. 11 (weak showing of pretext is insufficient to avoid summary judgment) (citing Reeves, 120 S.Ct. at 2109).
There is doubt whether Edmondson said "you all" or "you people." (Pearson's Dep. at 122-23.)
Page one of Plaintiff's Response states that "from at least June 18, 1999 until she was terminated on July 15, 1999, there were no white nursing assistants working on the 11-7 shift. (Edwards Depo. P. 102, Line 3-15)." As noted previously, Edwards's alleged deposition has never been submitted into evidence.
Second, the court notes that Plaintiff has only addressed one of Defendant's legitimate proffered reasons — and that one in a quite confusing manner. Whatever Plaintiff hopes to convey in her response is incomprehensible. (Resp. at 7.) Although an employee "must meet [the employer's] reason head on and rebut it," Chapman, 229 F.3d at 1030, Plaintiff has not done so. Additionally, the fact that Plaintiff disputes Defendant's statement that Plaintiff "put herself on the schedule" (thereby working when not scheduled) does not squarely address the fact that Plaintiff also changed the schedule without Jennings' permission and failed to work when she was scheduled. For this reason, too, Plaintiff has failed to show pretext. An employee must rebut "all of the defendant's proffered nondiscriminatory reasons for its actions," Id. at 1037, 1037 n. 30, not just bits and pieces of one or two of them.
Third, the court finds no evidence of pretext from the fact that Chapman did not discuss Pearson's termination with another supervisor, Kay Dowdell, prior to termination. (Resp. at 7 n. 6.) The record reflects Dowdell's statement that Defendant normally consulted with the shift's charge nurse with respect to investigations concerning "activity on the unit." (Dowdell's Dep. at 46.) The record, however, does not reflect that such consultation is warranted when, as in this case, the misconduct is not fairly related to activity that took place during the shift. In other words, the court finds insufficient evidence to suggest pretext from the fact that Defendant did not consult with Dowdell prior to taking actions related to Pearson's altering of the work schedule. The court might feel differently if Defendant claimed that it terminated Plaintiff because of her behavior during working hours. But that hypothetical situation is not presented here; the proffered reason is that Plaintiff should not have been working at that time whatsoever. Maintenance of the work schedule falls within Jennings' domain, not Dowdell's.
All in all, Plaintiff's response, when viewed in the most favorable light, shows that Plaintiff had verbal permission from a Dadeville supervisor other than Jennings to work on the days in question. The response does nothing, however, to negate the fact that Jennings' recommendation to terminate Plaintiff was based upon her belief or the fact that the work rules had been violated. (Def. Ex. 2 #1, 3-5, 7.) Nor does it imply that Chapman acted in a discriminatory manner when she concurred with Jennings' recommendation, particularly given that Chapman made the decision to terminate Plaintiff after conducting her own independent investigation of the charges — an investigation that included consultation with Jennings and another administrator. (Chapman Aff.)
The court also notes that Plaintiff states that Jennings is "fair and honest." (Pearson's Dep. at 99.) Thus, there is little reason for doubting the voracity of Jennings' statement that she honestly believed Plaintiff violated Defendant's work rules.
Plaintiff's explanation for violating the policy might make her termination seem less than reasonable. But it does not suggest that the termination was discriminatorily motivated. If termination is the product of an employer's good faith belief that the employee has violated a work rule — or if the employee has violated the rule in fact — then an employee cannot show discriminatory pretext merely by maintaining that she did not break the rule. See Chapman, 229 F.3d at 1030; Abel v. Dubberly, 210 F.3d 1334, 1338-39 (11th Cir. 2000); Jones, 874 F.2d at 1540; Early v. Morris Newspaper Corp., 54 F. Supp.2d 1261, 1271 (M.D. Ala. 1999).
Anti-discrimination laws do not outlaw mistakes; they outlaw intentional acts based upon forbidden criteria. The court is sensitive to this nation's long and unfortunate history of racial discrimination, and the court fully recognizes the role that remedial federal legislation has played in overcoming various deeply rooted prejudices in our society. However, not every adverse employment action taken against a member of a protected class is illegal, and federal courts do not sit as "super-personnel" boards, whose function is to second-guess every decision made by an employer. See Early, 54 F. Supp.2d at 1271. In this case, as noted previously, the court finds that Plaintiff has failed to establish a prima facie case of discrimination. In the alternative, after examining the record as a whole, the court finds that Plaintiff has failed to cast doubt upon Defendant's proffered non-discriminatory reasons for her termination. The remainder of Plaintiff's argument rests upon a fatal misunderstanding of applicable case law and merits no serious discussion. Accordingly, Defendant's motion for summary judgment on Plaintiff's claims of race discrimination is due to be granted.
For an explanation of indirect "cat's paw" liability and an application of the holding of Llampallas v. Mini-Circuits, Lab., Inc., 163 F.3d 1236 (11th Cir. 1998), see Hooks v. Cohen, 2000 WL 1639583 (M.D. Ala. 2000) (DeMent, J.) and Hamilton v. Montgomery County Bd. of Educ., 2000 WL 1784995 (M.D. Ala. 2000) (DeMent, J.)
B. Retaliation
Summary judgment also is appropriate on Plaintiff's retaliation claims. First, the court finds that it lacks subject matter jurisdiction over the Title VII claim. Because Plaintiff failed to include the retaliation charge in her EEOC complaint (Def. Ex. 3), the court finds that Plaintiff has failed to exhaust the administrative remedies available to her. Having failed to do so, she cannot subsequently raise the claim in federal court. See e.g., Williamson v. Int'l Paper Co., 85 F. Supp.2d 1184, 1195-98 (S.D. Ala. 1999); Clark v. City of Macon, 860 F. Supp. 1545, 1551 (M.D. Ga. 1994). In addition, the court finds that Plaintiff has failed to satisfy the three elements needed to establish a prima facie case with respect to her § 1981 claim.
A prima facie case depends upon a showing that: (1) Plaintiff engaged in a statutorily protected activity; (2) Plaintiff suffered adverse employment action; and (3) some causal connection exists between the two events. See Hooks, 2000 WL 1639583 at *3. Morgan v. Alabama, 5 F. Supp.2d 1285, 1297 (M.D. Ala. 1998). Plaintiff alleges that she suffered injury arising from the fact that she was suspended on June 19, 1999, then protested the alleged discrimination behind that suspension, and then was fired because of her protests. (Am. Compl. ¶ 6.) Plaintiff's allegation, however, is belied by her own undisputed testimony. Plaintiff spoke to this issue during her deposition. The record reflects the following discussion between Plaintiff and her attorney:
Because § 1981 claims are analyzed in the same manner as Title VII claims, the court's granting of summary judgment on the § 1981 retaliation claim would necessarily lead to the same finding on the Title VII claim. Thus, even if the court had subject matter jurisdiction over the Title VII claim — which it does not — Defendant's motion for summary judgment would still be granted in its entirety.
Plaintiff's Response repeats this allegation but points the court to no evidence to prove it. (Resp. at 5-7.) Allegations supported exclusively with sweeping references to the entire record are disfavored, for they fail to "set forth specific facts showing that there is a genuine issue for trial." FED. R. CIV. P. 56(e). See also 10/30/00 Order at 1 n. 1 ("[a]ny evidence, and in particular deposition testimony, must be cited to with specificity and particularity.") (emphasis in original).
Q: Now, let me back up a second. In that meeting that you had on Friday afternoon, [June] 25th, with Kay Jennings and Dale Estes, did you say anything about race discrimination at that meeting?
A: No.
Q: Was there ever any point that you made a comment about race discrimination around the time you were terminated?
A: No, never did.
Q: So the first time you mentioned race discrimination was in this presentation that you made with Rev. Dowdell; is that correct?
A: First time I mentioned it? First time I mentioned it was when I called him that night.
Q: I'm talking about to Dadeville Health Care.
A: Right. Right.
Q: And do you remember when you presented this?
A: No, I don't. It had to be two or three weeks into the protest. I don't remember the date the day it happened.
(Pearson's Dep. at 139-40.)
There can be no retaliation without some type of protest. The above-referenced "protest" appears to have been some time in early- to mid-July 1999. (Pl. Ex. 5-7.) Plaintiff's Response does not address this fact in any significant manner. Cf. Vickers v. Federal Express Corp., 2000 WL 1725356 at *7 (S.D. Fla. 2000) (discrimination "has nothing to do with the employee's perception of fairness.") Thus, the court finds that Plaintiff did not protest any alleged racial discrimination at Defendant's elderly care facility until after she had been terminated. (Pearson's Dep. at 139-40.) Therefore, it is impossible to maintain that Plaintiff was terminated in retaliation for exercising her right to oppose racial discrimination. As a result, Defendant's motion for summary judgment on the retaliation claims is due to be granted.
V. ORDER
It is CONSIDERED and ORDERED that Defendant Prime Healthcare Corporation's Motion For Summary Judgment be and the same is hereby GRANTED. A judgment shall be entered separately.