Opinion
CIV. NO. 98-1136-MI-S.
January 21, 2000.
ORDER
This matter is before the Court on Defendants Sea Breeze Nursing Home, Dr. George Sutton and Mary Alice Stevenson's motion for summary judgment. (Doc. 69). After considering the motion, supporting briefs, evidence on file, and applicable law, the Court finds that the Defendants' motion for summary judgment is due to be GRANTED.
I. Facts
Plaintiff Dr. Walker LeFlore's claims against Defendants Sea Breeze Nursing Home, Dr. George Sutton and Mary Alice Stevenson arise from the termination of Dr. LeFlore's patient visitation privileges at Sea Breeze Nursing Home. Plaintiff has also brought claims against other defendants which have been stayed due to a bankruptcy action.
Plaintiff is a licensed physician who practices medicine in Mobile County. Prior to February 17, 1998, Plaintiff was the treating physician for twelve patients at Sea Breeze Nursing Home. By letter dated February 17, 1998, Dr. LeFlore's patient visitation privileges were terminated at Sea Breeze. Defendant Mary Alice Stevenson, as administrator, and Dr. George Sutton, as medical director, signed the termination letter.
Plaintiff brought this action against these Defendants alleging in part that the termination of Plaintiff's visitation privileges was due to racial discrimination. Plaintiff is African-American. Defendants contend that Plaintiff's visitation privileges were terminated due to an incident between Plaintiff and a Sea Breeze patient.
Defendants state that in February, prior to his termination, Plaintiff arrived at Sea Breeze to make his rounds. During his rounds Plaintiff was met by Minge Owens, a Sea Breeze resident and LeFlore patient. Owens is an elderly man who is confined to a wheelchair because both of his legs have been amputated. Owens also suffers from mental confusion and is unable to care for himself. When Plaintiff walked up to Owens, Owens drew back as if intending to hit Plaintiff. Plaintiff admits that in response, Plaintiff raised his walking cane over Owens' head and said, "you hit me . . . and I will hit you back."
Plaintiff has sued Defendants Sea Breeze, Sutton and Stevenson alleging Defendants violated the Nursing Home Reform Act (counts one and two), that Defendants impaired Plaintiff's ability to make or enforce a contract on account of race in violation of 42 U.S.C. § 1981 (count three), that Defendants denied Plaintiff a property right on account of race in violation of 42 U.S.C. § 1982 (count four), tortious interference with a business relationship (count six), breach of contract (count nine), tort of outrage (count ten), negligence (count eleven), retaliation for failure to back-date medical documents (count twelve). Plaintiff concedes that he cannot state a cause of action as a matter of law for violations of the Nursing Home Reform Act under counts one and two and that therefore summary judgment is due to be granted as to those claims.
II. Summary Judgment Standard
Federal Rule of Civil Procedure 56(c) provides that summary judgment shall be granted: "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 judgment as a matter of law." Fed.R.Civ.P. 56(c). "A factual dispute is `genuine' if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. A fact is `material' if it might affect the outcome of the suit under the governing substantive law." Beck v. Somerset Technologies, Inc., 882 F.2d 993, 996 (5th Cir. 1989) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)); accord Tipton v. Bergrohr GMBH-Siegen, 965 F.2d 994, 998 (11th Cir. 1992).
The basic issue before the Court on a motion for summary judgment is "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." See Anderson, 477 U.S. at 251-252. The moving party has the burden of showing the absence of a genuine issue as to any material fact, and in deciding whether the movant has met this burden the Court must view the movant's evidence and all factual inferences arising from it in the light most favorable to the nonmoving party. See Adickes v. S.H Kress Co., 398 U.S. 144, 157 (1970); see also Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1115 (11th Cir. 1993). "If reasonable minds could differ on the inferences arising from undisputed facts, then a court should deny summary judgment." Miranda v. B B Cash Grocery Store, Inc., 975 F.2d 1518, 1534 (11th Cir. 1992) (citing Mercantile Bank Trust v. Fidelity Deposit Co., 750 F.2d 838, 841 (11th Cir. 1985)).
Once the movant satisfies their initial burden under Rule 56 (c) of demonstrating the absence of a genuine issue of material fact, the burden shifts to the nonmovant to "come forward with `specific facts showing that there is a genuine issue for trial.'" See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quoting Fed.R.Civ.P. 56(e)) (emphasis omitted). Otherwise stated, the nonmovant must "demonstrate that there is indeed a material issue of fact that precludes summary judgment." See Clark v. Coats Clark, Inc., 929 F.2d 604, 608 (11th Cir. 1991). "A mere `scintilla' of evidence supporting the [nonmoving] party's position will not suffice; there must be enough of a showing that the jury could reasonably find for that party." Walker v Darby, 911 F.2d 1573, 1577 (11th Cir. 1990) (citation omitted). "[T]he nonmoving party may avail itself of all facts and justifiable inferences in the record taken as a whole." Tipton, 965 F.2d at 998 (citing United States v. Diebold, Inc., 369 U.S. 654, 655 (1962)). "`The evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor.'" Tipton, 965 F.2d at 999 (quoting Anderson, 477 U.S. at 255). "Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no genuine issue for trial." Matsushita, 475 U.S. at 587 (quotation marks and citation omitted).
III. Section 1981 and 1982 Claims
Section 1981 prohibits intentional race discrimination in the making and enforcement of public and private contracts, including employment contracts. See, e.g., Johnson v. Railway Express Agency, 421 U.S. 454, 459-60 (1975). Section 1981 liability must be founded upon purposeful discrimination. See General Bldg. Contractors Ass'n v. Pennsylvania, 458 U.s. 375, 389 (1982). The McDonnell Douglas framework is utilized to evaluate intentional discrimination claims in Section 1981 actions. See Patterson v. McLean Credit Union, 491 U.S. 164, 186 (1989).
Section 1982 guarantees that "[a]ll citizens of the United States shall have the same right, in every State and Territory, as is enjoyed by white citizens thereof to inherit, purchase, lease, sell, hold and convey real and personal property." 42 U.S.C. § 1982. Plaintiff alleges that his ability to visit patients at Sea Breeze constituted a personal property right protected under section 1982. Plaintiff alleges that Defendants deprived him of this property right on the basis of race in violation of the statute. Without deciding, for purposes of analysis, the Court will assume that Plaintiff's patient visitation privileges were a property right protected under Section 1982. The McDonnell Douglas burden-shifting analysis is also applied in a Section 1982 claim. See Asbury v. Brougham, 866 F.2d 1276, 1279 (10th Cir. 1989); Farrior v. H.J. Russel Co., 45 F. Supp.2d 1358, 1367 (N.D. Ga. 1999); Bell v. Mike Ford Realty Co., 857 F. Supp. 1550 (S.D.Ala. 1994).
In an employment discrimination case, the plaintiff bears the ultimate burden of proving that the defendant intentionally discriminated against the plaintiff. See Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). The plaintiff may prove discrimination through the production of direct or circumstantial evidence. See Schoenfeld v. Babbitt, 168 F.3d 1257, 1266 (11th Cir. 1999). Direct evidence of discrimination is evidence which proves the existence of discrimination without inference of presumption. See id. The Eleventh Circuit has held that direct evidence is composed only of the most blatant remarks which clearly indicate an intent to discriminate. See id. Plaintiff has not produced any direct evidence of discrimination in this case.
A plaintiff may also prove discrimination through circumstantial evidence. Circumstantial evidence is evidence which merely suggests a discriminatory motive. See id. To prove discriminatory treatment through circumstantial evidence, (1) a plaintiff must first make out a prima facie case, then (2) the burden shifts to the defendant to produce legitimate, nondiscriminatory reasons for the adverse employment action, and then (3) the burden shifts back to the plaintiff to establish that these reasons are pretextual. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973).
A plaintiff may establish a prima facie case of employment discrimination by demonstrating, (1) he was a member of a protected class, (2) he was subjected to adverse employment action, (3) he was qualified to do the job, and (4) he was replaced by a person outside his protected class. See id. For purposes of analysis, the Court will assume that Plaintiff has met the prima facie case.
Under the second part of the McDonnell Douglas test, the burden shifts to Defendant to produce legitimate, nondiscriminatory reasons for the termination of Plaintiff's visitation privileges. Defendant has asserted that Plaintiff's visitation privileges were terminated because of an incident where Plaintiff threatened a Sea Breeze patient. Plaintiff admits that he had a confrontation with Minge Owens, and that Plaintiff threatened to hit Owens with his cane. This is a legitimate, nondiscriminatory reason to terminate Plaintiff's visitation privileges and the Court finds that Defendants have met their burden under the second part of the McDonnell Douglas test.
The third part of the McDonnell Douglas test requires Plaintiff to establish that Defendant's reasons for his transfer were pretextual. The Supreme Court has explained:
The plaintiff retains the burden of persuasion. She now must have the opportunity to demonstrate that the proffered reason was not the true reason for the employment decision. This burden now merges with the ultimate burden of persuading the court that she has been the victim of intentional discrimination. She may succeed in this either directly by persuading the court that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer's proffered explanation is unworthy of credence.Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 256 (1981).
The Court has further noted, if "the defendant has succeeded in carrying its burden of production, the McDonnell Douglas framework — with its presumptions and burdens — is no longer relevant." St. Mary's Honor Center v. Hicks, 509 U.S. 502, 510 (1993). Instead, "the trier of fact proceeds to decide the ultimate question: whether plaintiff has proven "that the defendant intentionally discriminated against [him]' because of his race." Id. at 511 (quoting Burdine, 450 U.S. at 253). "[B]ecause the plaintiff bears the burden of establishing pretext [for discrimination], he must present `significant probative' evidence on the issue to avoid summary judgment." Young v. General Foods Corp., 840 F.2d 825, 829 (11th Cir. 1988) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50 (1986). "[C]onclusory allegations of discrimination, without more, are not sufficient to raise an inference of pretext or intentional discrimination where [an employer] has offered . . ., extensive evidence of legitimate, non-discriminatory reasons for its actions." Grigsby v. Reynolds Metals Co., 821 F.2d 590, 597 (11th Cir. 1987).
Plaintiff alleges that Defendants justification for terminating Plaintiff's visitation privileges is mere pretext. Plaintiff alleges that the justification is pretext because (1) Defendants did not document or investigate the Owens incident, (2) Defendants' termination letter to Plaintiff did not state the cause for the termination, and Plaintiff's former attorney does not recall being informed of the Owens incident upon his inquiry into the matter, and (3) Plaintiff alleges that Sea Breeze Assistant Director of Nursing, Carolyn Raines, harbored racial animosity towards Plaintiff.
Defendants did not document Plaintiff's confrontation with Owens, nor did they consult with Plaintiff about the incident prior to his termination. Plaintiff states that Defendants had some sort of obligation to approach Plaintiff regarding the incident and let him tell his side of the story. Were Plaintiff to show that Defendants had departed from a well-established guideline, such evidence may indicate pretext for racial discrimination. See Brown v. American Honda Motor Co., 939 F.2d 946, 951 (11th Cir. 1991). However, Plaintiff has failed to come forward with evidence that there was any established policy which required Defendants to consult with Plaintiff before terminating his visitation privileges. Neither has Plaintiff shown that other physicians have been involved in any kind of comparable activity and have been provided more consideration. Defendants' failure to provide procedural protections to which Plaintiff can make no claim of right does not indicate pretext.
Plaintiff's complaint that Defendants failed to document the Owens confrontation with an incident report is also insufficient to show pretext. Plaintiff admits that the incident occurred. The incident was observed by a nurse who reported the incident to the Sea Breeze administration. And, Defendant Stevenson has testified that because of this incident, she decided to terminate Plaintiff's visitation privileges. The absence of an incident report in the Sea Breeze log does not cast doubt on this chain of events.
Plaintiff's termination letter did not state the reason Plaintiff's visitation privileges were terminated. After Plaintiff received the termination letter, Plaintiff's former attorney, James Wood, contacted Defendant Stevenson and inquired about the termination. Wood then wrote a letter to Plaintiff indicating the reasons that Stevenson gave for Plaintiff's termination. The letter stated:
Yesterday I had a lengthy conversation with Mary Alice Stevenson, Administrator of the Sea Breeze Health Care Center. She told me that she did not put a reason for relieving you of your responsibilities at the Center because she did not want to put anything in writing that might reflect on your professional reputation. Quite frankly, Ms. Stevenson appeared favorably disposed toward you in a personal way. However, she said that she and her staff were not satisfied with your services in many ways. She said that she was concerned about your health. Here are some other things that she mentioned to me in our conversation.
1. Staff could not get forms properly filled out by you so that the nursing home could be paid.
2. You were too slow in handling administrative matters.
3. You perceived the administration and staff as engaging in some sort of medicaid fraud.
4. You would not call nurses back about various patients' complaints.
In other words she had a list of minor complaints which added to a total dissatisfaction with the relationship between you and the nursing home. She said that you were not perceived to be a "team player".
During his deposition, Attorney Wood stated that he could not remember whether Defendant Stevenson mentioned the Owens incident during their phone conversation.
Plaintiff states that the absence of an explanation in the termination letter and Wood's failure to recall mention of the Owens incident show the existence of pretext. However, taken as a whole, the absence of cause in Plaintiff's termination letter, the text of Wood's letter, and Wood's inability to recall are insufficient to show that Defendants' legitimate nondiscriminatory reason for terminating Plaintiff's visitation privileges was contrived and is mere pretext.
Finally, Plaintiff states that Carolyn Raines, Assistant Director of Nursing, harbored racial animosity towards Plaintiff. Raines reported the Owens incident to Defendant Stevenson. Plaintiff admits that the Owens incident did, in fact, occur. It is further undisputed that Stevenson made the decision to terminate Plaintiff's visitation privileges. Even if Raines carried some racial animosity towards Plaintiff, Raines actions do not indicate Defendants' termination of Plaintiff's visitation privileges was discriminatory. See Price Waterhouse v. Hopkins, 490 U.S. 228, 277 (1989) (White, J. concurring) (statements by non-decision makers do not raise an inference of discrimination): see also Webb v. R B Holding Co., Inc., 992 F. Supp. 1382, 1387 (S.D. Fla. 1998). Consequently, the Court finds that Plaintiff has not come forward with evidence sufficient to show that Defendants' legitimate non-discriminatory reason for terminating Plaintiff's visitation privileges were mere pretext. Therefore, summary judgment is due to be granted on Plaintiff's Section 1981 and 1982 claims.
Plaintiff alleges that Raines was discriminatory in that she failed to show Plaintiff sufficient respect as a physician, did not make rounds with Plaintiff, and that two individuals made comments suggesting that Raines harbored some sort of animosity towards Plaintiff. Plaintiff has failed to come forward with any evidence that Raines treated Plaintiff in a manner any different from any other physician at Sea Breeze. Additionally, Plaintiff's claims of warnings from others regarding Raines are both inadmissible and lack probative value.
IV. Count Twelve
Count Twelve of Plaintiff's amended complaint states: "Defendants' action in terminating Plaintiff's privilege of treating patients at their facilities were in direct retaliation of Plaintiff's refusal to carry out Defendants' desires and wishes with respect to certain medical aspects of his patients and for his refusal to back date certain documents involving patient treatment."
Plaintiff has failed to provide either reference or authority indicating that refusing to back-date documents is protected activity, or to provide any reference or authority which indicates that Plaintiff has a cause of action for such a claim. The Court cannot determine whether Plaintiff claims such a cause of action arises under state or federal law. Consequently, the Court finds that Plaintiff has failed to state a claim under Count Twelve and that this claim is due to be dismissed.
VI. Remaining State Claims
Since this Court has dismissed all federal question claims against Defendants Sea Breeze, Sutton and Stevenson, the Court has the discretion to decline to exercise supplemental jurisdiction over the remaining state law claims against these Defendants under 28 U.S.C. § 1367 (c)(3). Section 1367(c) states: "The district courts may decline to exercise supplemental jurisdiction over a claim . . ., if the district court has dismissed all claims over which it has original jurisdiction." After due consideration, the Court declines to exercise jurisdiction over the remaining state claims. Consequently, the remaining state law claims against Defendants Sea Breeze, Sutton and Stevenson are due to be dismissed.
VI. Conclusion
Due to the foregoing, Defendants Sea Breeze, Sutton and Stevenson's Motion for Summary Judgment as to Plaintiff's claims under the Nursing Home Reform Act, and Sections 1981 and 1982 are GRANTED. Count Twelve of Plaintiff's complaint and the remaining state law claims against Defendants Sea Breeze, Sutton and Stevenson are DISMISSED WITHOUT PREJUDICE.
Due to the foregoing, Defendants' motion for oral argument (Doc. 84) and Plaintiff's motion for permission to serve Defendant Stevenson are rendered MOOT.