Opinion
Civil Action No. 03-2614-KHV.
December 7, 2004
MEMORANDUM AND ORDER
Renita Simmons has filed suit against Kansas City Psychiatric Group, P.A. under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq., and the Kansas Act Against Discrimination ("KAAD"), K.S.A. § 44-1001 et seq., claiming that it terminated her employment because she was pregnant. The matter is before the Court on Defendant's Motion For Summary Judgment (Doc. #50) filed November 1, 2004. For reasons stated below, the Court finds that defendant's motion should be denied.
Summary Judgment Standards
Summary judgment is appropriate if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. Fed.R.Civ.P. 56(c); accord Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986); Vitkus v. Beatrice Co., 11 F.3d 1535, 1538-39 (10th Cir. 1993). A factual dispute is "material" only if it "might affect the outcome of the suit under the governing law." Anderson, 477 U.S. at 248. A "genuine" factual dispute requires more than a mere scintilla of evidence. Id. at 252.
The moving party bears the initial burden of showing the absence of any genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Hicks v. City of Watonga, Okla., 942 F.2d 737, 743 (10th Cir. 1991). Once the moving party meets its burden, the burden shifts to the nonmoving party to demonstrate that genuine issues remain for trial "as to those dispositive matters for which it carries the burden of proof." Applied Genetics Int'l, Inc. v. First Affiliated Secs., Inc., 912 F.2d 1238, 1241 (10th Cir. 1990); see also Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986); Bacchus Indus., Inc. v. Arvin Indus., Inc., 939 F.2d 887, 891 (10th Cir. 1991). The nonmoving party may not rest on his pleadings but must set forth specific facts. Applied Genetics, 912 F.2d at 1241.
The Court must view the record in a light most favorable to the party opposing summary judgment. See Deepwater Invs., Ltd. v. Jackson Hole Ski Corp., 938 F.2d 1105, 1110 (10th Cir. 1991). Summary judgment may be granted if the nonmoving party's evidence is merely colorable or is not significantly probative. See Anderson, 477 U.S. at 250-51. "In a response to a motion for summary judgment, a party cannot rely on ignorance of facts, on speculation, or on suspicion, and may not escape summary judgment in the mere hope that something will turn up at trial." Conaway v. Smith, 853 F.2d 789, 794 (10th Cir. 1988). Essentially, the inquiry is "whether the evidence presents a sufficient disagreement to require submission to the jury or whether it is so one-sided that one party must prevail as a matter of law."Anderson, 477 U.S. at 251-52.
Factual Background
The following facts are either undisputed or, where disputed, construed inthe light most favorable to plaintiff.
On June 24, 2000, plaintiff submitted an employment application to Kansas City Psychiatric Group, P.A. ("KCPG"), a professional corporation which provides psychiatric services. On her application, plaintiff listed "complicated pregnancy" as the reason for leaving her previous employment. KCPG employed plaintiff from July of 2000 through February 20, 2003. Plaintiff was not pregnant when she began her employment with KCPG.
Five psychiatrists worked at KCPG during plaintiff's employment including: Dr. Brown, Dr. Huk, Dr. Rahmen, Dr. Samuelson and Dr. Sonneschein.
During plaintiff's first four to six months of employment, her job responsibilities included answering the phone, verifying insurance information for new patients and collecting co-pays. Plaintiff's duties then expanded to include verifying existing patient insurance information and setting up payment arrangements.
In July of 2002, plaintiff inquired about a promotion after one of two supervisors left KCPG but was told not to apply because KCPG did not need two supervisors. In January of 2003, KCPG promoted Mary Ronning to the position. KCPG authorized Ronning to supervise daily job duties of some KCPG employees and assign daily duties in the billing department. At the time KCPG terminated plaintiff's employment, Ronning supervised plaintiff. Although Ronning did not have the power to hire and fire employees, she told plaintiff that she did.
Plaintiff believed that KCPG had passed her over for promotion because of her race and national origin. After conducting discovery on this issue, plaintiff voluntarily dismissed all race and national origin claims. See Notice of Voluntary Dismissal Without Prejudice Of Count III And Those Portions Of Counts I And II That State Claims For Race Or National Origin Discrimination (Doc. #15) filed April 30, 2004.
Around February 11, 2003, plaintiff told co-worker Jacquie Todd that she was pregnant. Ronning walked into the room during the conversation between Todd and plaintiff. The next day Ronning told plaintiff "ifI was you, I would quit, so that the pregnancy wouldn't be complicated." Exhibit A to Plaintiff's Brief in Opposition at 136, 142. At the same time, Ronning also told plaintiff that she had informed the physicians that plaintiff was pregnant. About one week before defendant terminated plaintiff's employment, Dr. Brown said to plaintiff, "hey, congratulations, heard about the pregnancy." Exhibit D-2 to Defendant's Memorandum in Support (Doc. #51) at 167.
On February 17, 2003, plaintiff discussed her job duties with Dr.Samuelson, who told her to focus on inpatient billing. The following day, February 18, 2003, plaintiff received a written list of daily job duties for each employee in the billing department. Plaintiff disagreed with the duties assigned to her and requested a meeting with Ronning. Plaintiff, Ronning and an employee identified only as "Robin" met on February 19, 2003. The meeting lasted approximately 15 minutes, and Ronning told plaintiff what her new duties were. No one mentioned plaintiff's pregnancy during this meeting.
On February 20, 2003, plaintiff met with Dr. Brown at his request. During this meeting, KCPG terminated plaintiff's employment. At her deposition, plaintiff testified about her conversation with Dr. Brown during the meeting:
The start of the conversation was he was really impressed with my work. He was impressed with the threatening letters I would send to patients. He spoke highly of me. He did say if I wanted a position at another Health Midwest facility, . . . he could write me a reference letter. He went back to saying I've done a great job, he appreciates everything I've done. At this point, we're calling it quits, your pregnancy is stressing us out.
Exhibit A to Plaintiff's Brief in Opposition at 97. Dr. Brown documented his version of the meeting in a handwritten memo dated February 20, 2003. He wrote as follows:
Rochelle Simmons and I met for twenty minutes today and reviewed the following[:]
1. Concerns she will not share information regarding inpt. billing with co-workers.
2. Concerns she will only focus on "inpatient billing" as that is "what she was hired to do" vs. helping other coworkers with additional responsibilities
3. Her refusal to communicate with her supervisor — "I can't talk with her"
4. Her sullen, increasingly labile attitude. Undue stress on peers due to intense conflict with supervisor.Action Plan
As Rochelle states she cannot work with her supervisor, share information with coworkers, or assume additional requested responsibilities, she was terminated with two weeks severence [sic] pay[.] She stated she understood.
Plaintiff was known as "Rochelle" during her employment at KCPG.
Plaintiff denies (1) that Dr. Brown talked with her about the points in his memo, and (2) that she had the performance difficulties described in the memo. She acknowledges that she told Dr. Brown that Ronning was hard to talk to. She claims that she was performing her work at the expected level. She also states that patients were not calling and complaining about her work and that she had not had any disciplinary meetings with managerial staff at KCPG.
Dr. Brown signed the memo at the bottom of the page. Dr. Brown denies that he told plaintiff "we're calling it quits, your pregnancy is stressing us out."
After the meeting, plaintiff called her husband and asked him to pick her up from work. Plaintiff told him that she had been fired because she was going to have a baby. The same day, plaintiff told coworker Kelly Thorne that she had been fired because her pregnancy was becoming a problem.
Plaintiff completed an EEOC questionnaire dated February 23, 2003. In response to the questions "Have you attempted to resolve this matter with management or your union?" and "Please explain what happened, "she wrote that Dr. Brown "informed me that maybe it was my pregnancy" and "I was making the environment stressful." On April 24, 2003, plaintiff filed a written charge of discrimination with the Equal Employment Opportunity Commission (EEOC). In the charge, plaintiff alleged as follows:
4. On or about February 6, 2003, I advised my supervisor that I was pregnant.
5. On February 10, 2003, my supervisor told me that I should quit because of my pregnancy. I advised her that I did not want to quit and that I would be able to perform all of my duties during my pregnancy.
6. On February 20, 2003, my employment was terminated. The reason given to me for my termination was because "your pregnancy is stressing us out."
Plaintiff later testified that she told Todd about her pregnancy on February 11, 2003 and that her supervisor learned about the pregnancy when she walked into the room while plaintiff and Todd were talking. Plaintiff did not specifically tell Ronning about her pregnancy.
Exhibit E to Plaintiff's Brief in Opposition at 2. On April 25, 2003, plaintiff filed a written charge of discrimination with the Kansas Commission on Human Rights ("KHRC"). On September 17, 2003, the EEOC issued a right to sue letter. On December 2, 2003, plaintiff filed this suit against KCPG.
Some time after KCPG terminated her employment, plaintiff gave her attorney photocopies of KCPG billing information, which included patient names and social security numbers. Plaintiff did not have authorization to release copies of these documents to any third party. Plaintiff had removed the documents from KCPG and testified that Dr. Huk had authorized her to work on billing information at home. Dr. Huk denies that plaintiff was authorized to remove patient information from the office. Plaintiff never contacted defendant to return the billing information, which she admits is the property of KCPG.
On April 2, 2004, in her disclosures under Fed. R Civ. P. 26(a)(1), plaintiff disclosed that the billing information was in her possession, custody or control. Until it received plaintiff's disclosures, defendant was unaware that plaintiff had removed the confidential billing information. If defendant had known that plaintiff had taken patient information from KCPG to her home, it would have fired her immediately.
The KCPG employee handbook states as follows: "patient records should be returned to the appropriate filing cabinet following documentation. Patient records may not be removed from the premises for any reason." Exhibit G to Defendant's Memorandum in Support (Doc. #51). Plaintiff reviewed a copy of the employment handbook on August 15, 2001. Plaintiff testified that while she had not read the entire handbook, she knew about this policy.
Plaintiff claims that KCPG discriminated against her by terminating her employment because she was pregnant. Defendant argues that it is entitled to summary judgment because plaintiff has shown no direct or indirect evidence of discrimination based on pregnancy. Defendant asserts that it had a legitimate business reason for terminating plaintiff's employment and that plaintiff has not shown its reason to be pretextual. Finally, defendant argues that plaintiff is not entitled to equitable relief because under the after acquired evidence doctrine, plaintiff's employment would have been terminated for removing confidential patient information from the KCPG office.
Analysis
Title VII makes it unlawful to discriminate against any individual with respect to terms, conditions, or privileges of employment based on the employee's sex. See 42 U.S.C. § 2000e-2(a)(1). The Pregnancy Discrimination Act ("PDA") amended Title VII in 1978 to bring the condition of pregnancy within the definition of sex discrimination. See E.E.O.C. v. Ackerman, Hood McQueen, Inc., 956 F.2d 944, 947 (10th Cir. 1992) (PDA added to Title VII to prevent the differential treatment of women in all aspects of employment based on condition of pregnancy) (quoting Carney v. Martin Luther Home, Inc., 824 F.2d 643, 646 (8th Cir. 1987)).
The Court analyzes PDA claims under the disparate treatment analysis applied in other Title VII cases. See Ackerman, Hood McQueen, Inc., 956 F.2d at 947. A plaintiff may prove disparate treatment by using either direct or indirect proof of discrimination. Because plaintiff in this case presents direct evidence of discrimination, the McDonnell Douglas burden-shifting analysis does not apply. See Trans World Airlines, Inc. v. Thurston, 469 U.S. 111, 121 (1985); Heim v. Utah, 8 F.3d 1541, 1546 (10th Cir. 1993).
I. Direct Evidence
The Court first addresses whether plaintiff has produced direct evidence of discrimination. Direct evidence includes "evidence, which if believed, proves the existence of a fact in issue without inference or presumption." Shorter v. ICG Holdings, Inc., 188 F.3d 1204, 1207 (10th Cir. 1999) (citations omitted). Direct evidence must "speak directly to the issue of discriminatory intent" and must "relate to the specific employment decision in question." Swanson v. Allied Signal, Inc., No. CIV 91-2155-L, 1992 WL 223768, at *2 (D. Kan. Aug. 13, 1992). Oral statements made by the defendant which show discriminatory motivation for its acts may constitute direct evidence. See, e.g., Lawyer v. Eck Eck Mach. Co., Inc., 197 F. Supp.2d 1267, 1276 (D. Kan. 2002) (direct evidence of discrimination precluded summary judgment when employer dismissed employee's pregnancy as her problem, gave her choice of losing work restrictions or losing her job, and told her to clean herself up and get back to work); Hiskett v. Wal-Mart Stores, Inc., No. CIV.A.97-2480-EEO, 1998 WL 559756, at *3 (D. Kan. Aug. 6, 1998) (summary judgment denied when manager told employee that she was not promoted because she was pregnant and position required longevity); Thompson v. La Petite Academy, Inc., 838 F. Supp. 1474, 1478 (D. Kan. 1993) (summary judgment denied when employer fired employee because her attitude had changed since she became pregnant). Statements of personal opinion, however, may constitute only indirect evidence of discrimination.Shorter, 188 F.3d at 1207. Statements made by an employee other than an actual decision-maker do not constitute direct evidence of discrimination. Ramsey v. City County of Denver, 907 F.2d 1004, 1007 (10th Cir. 1990); Weber v. United Parcel Serv., No. CIV.A.91-1225-MLB, 1993 WL 245969, at *5 (D. Kan. June 16, 1993).
Defendant argues that plaintiff has no direct evidence of discrimination. As to Ronning's statement that "if I was you, I would quit, so that the pregnancy wouldn't be complicated," defendant argues that (1) the statement is inadmissible hearsay, and (2) it is not direct evidence of discrimination because Ronning was not an owner of KCPG and did not have authority to hire or fire, and plaintiff never advised anyone about the statement. Because her statement is not offered to prove that Ronning would have quit if she was in plaintiff's position, the Court overrules defendant's hearsay objection. See Fed.R.Evid. 801. Furthermore, the Court agrees with defendant that Ronning was not an actual decision-maker and that her statements amount to statements of personal opinion which do not constitute direct evidence of discrimination.
As to Dr. Brown's statement that "at this point we're calling it quits, your pregnancy is stressing us out, "defendant argues that plaintiff's deposition testimony about Dr. Brown's reason for terminating her employment (1) should be disregarded, and (2) is not direct evidence of discrimination because it did not occur. Viewing the evidence in the light most favorable to plaintiff, Dr. Brown's statement constitutes direct evidence of discrimination. In Thompson, the Court found direct evidence when an employee fired a pregnant employee and stated the reason for terminating her employment was "[b]ecause your attitude has changed since you have become pregnant." 838 F. Supp. at 1477. The reason given clearly tied termination of employment with pregnancy. Id. at 1478. Similarly, Dr. Brown's statement directly relates plaintiff's pregnancy to the reason for terminating her employment. See 838 F. Supp. at 1478.
Defendant asks the Court to disregard plaintiff's deposition testimony because the initial statements on her EEOC questionnaire differ from statements in her EEOC charge and deposition about why Dr. Brown said that he was firing her. Defendant contends that plaintiff's deposition testimony is an attempt to create a sham issue of fact to avoid summary judgment. Plaintiff acknowledges differences in her statements but contends that in all statements, she alleged that Dr. Brown mentioned stress and her pregnancy contemporaneously with the termination. Plaintiff further asserts that any discrepancy between the statements, and between her and defendant's version of the termination conversation gives rise to genuine issues of material fact which preclude summary judgment.
A court may disregard a contrary affidavit which serves as an attempt to create a sham issue of fact to avoid summary judgment.Burns v. Bd. of County Comm'rs, 330 F.3d 1275, 1282 (10th Cir. 2003). To determine whether an affidavit is a sham issue, the Court considers "whether the affiant was crossexamined during his earlier testimony, whether the affiant had access to the pertinent evidence at the time of his earlier testimony or whether the affidavit was based on newly discovered evidence, and whether the earlier testimony reflects confusion which the affidavit attempts to explain." Id. (quoting Franks v. Nimmo, 796 F.2d 1230, 1237 (10th Cir. 1986)). The first Franks factor is satisfied here: plaintiff was not subjected to cross-examination during the earlier statements. Furthermore, because plaintiff's EEOC charge and subsequent deposition testimony do not directly contradict her statements in the EEOC questionnaire, the Court will not disregard either under Franks v. Nimmo.
Plaintiff has presented sufficient direct evidence to preclude summary judgment on her pregnancy discrimination claim.
II. After-Acquired Evidence
Defendant asserts that even if it fired plaintiff for unlawful reasons, she is not entitled to reinstatement or front pay because she removed confidential patient information from KCPG premises without authorization, citing McKennon v. Nashville Banner Publishing Co., 513 U.S. 352 (1995). Under McKennon, information that an employer learns after it has discharged an employee is not relevant to the determination whether an employer violated Title VII. See id. at 358-60. Nevertheless, if an employer learns of employee wrongdoing after it has fired that employee, and it can prove that the "wrongdoing was of such severity that the employee in fact would have been terminated on those grounds alone if the employer had known of it at the time of the discharge," the employee may not obtain front pay or reinstatement and in certain circumstances may also be denied back pay to which she would otherwise be entitled. Id. at 361-62. According to the Supreme Court, it would not comport with the "employer's legitimate concerns" to ignore evidence of misconduct on the part of the employee. See id. at 361.
Here, KCPG argues that if it had known that plaintiff had removed confidential patient information from KCPG and taken it to her home, it would have immediately fired her for that reason alone. See Rahman Affidavit, Exhibit M to Defendant's Memorandum in Support (Doc. #51). In her deposition, however, plaintiff testified that Dr. Huk authorized her to take patient information home. Dr. Huk denies that he authorized plaintiff to remove such information. Although defendant has presented sufficient evidence for a jury to find in its favor, a reasonable jury could find otherwise based on plaintiff's version of events. Therefore, defendant's motion on this issue is overruled. IT IS THEREFORE ORDERED that Defendant's Motion For Summary Judgment (Doc. #50) filed November 1, 2004, be and hereby is DENIED.