Opinion
4:20-707-SAL-KDW
12-15-2021
Tona Tedder, Plaintiff, v. CareSouth Carolina, Inc., Defendant.
REPORT AND RECOMMENDATION
Kaymani D. West, United States Magistrate Judge.
Plaintiff Tona Tedder (“Plaintiff” or “Tedder”) filed this action against her former employer, Defendant CareSouth Carolina, Inc. (“CareSouth” or “Defendant”), alleging CareSouth violated the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101, et seq., as amended. She also brings state-law-based claims of defamation, tortious interference with prospective contractual relations, and workers' compensation retaliation in violation of S.C. Code Ann. § 41-1-80. Am. Compl., ECF No. 1-1. Defendant seeks summary judgment as to all of Plaintiff's claims. Mot. Summ. J., ECF No. 37. Plaintiff filed a brief in opposition, ECF No. 44, to which Defendant filed a Reply, ECF No. 46. This matter is before the court pursuant to 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2) (D.S.C.) for a report and recommendation (“R&R”) regarding Defendant's Motion for Summary Judgment. Having reviewed the parties' submissions and the applicable law, the undersigned recommends Defendant's Motion for Summary Judgment, ECF No. 37, be granted as to the federal causes of action and that the case be remanded for consideration of the state-law-based causes of action.
To the extent supported by the record, the court considers the facts in the light most favorable to Plaintiff, the nonmoving party, and potentially differing accounts of events are noted. This overview is not intended to exhaustively catalog every anecdote or argument made by the parties. The undersigned has reviewed all argument and evidence presented. To the extent necessary, additional facts are set out in the context of Plaintiff's specific causes of action.
A. Overview of CareSouth and Plaintiff's employment there
CareSouth, a not-for-profit community health clinic serving five counties in the Pee Dee Region of South Carolina, is charged with serving the medically underserved, poor populations in rural underserved areas. Dep. of CareSouth Chief Executive Officer (“CEO”) Ann Lewis 15-16, ECF No. 37-3. CareSouth provides healthcare services through its licensed healthcare professionals, all of whom were supervised at all relevant times by Chief Medical Officer (“CMO”) Stephen Smith, M.D. Smith Dep. 15, ECF No. 37-4.
Plaintiff was employed by CareSouth as a Family Nurse Practitioner (“FNP” or “NP”) from January 1, 2008 until January 4, 2019. CareSouth 30(b)(6) Dep. 8, ECF No. 37-6. Plaintiff and Jennifer Lynch were the two family nurse practitioners working in Suite B of the Hartsville Medical Center from 2016 to January 4, 2019. Smith Dep. 56. Family nurse practitioners provide primary care to patients. Lewis Dep. 22, ECF No. 44-13. As explained by Plaintiff, family nurse practitioners take care of patients, prescribe medication, order lab and other tests, review and interpret the results and take care of patients' medical needs. Pl. Dep. 45, ECF No. 37-2. Up to the time of her termination, Plaintiff was performing all the routine patient care responsibilities and was meeting the patient care requirements. CareSouth 30(b)(6) Dep. 9-10, ECF No. 44-15. As discussed more fully below, CareSouth terminated Plaintiff for “bullying and not upholding the service standards of the organization.” Id. at 10.
B. Environmental incident and impact on Plaintiff's work schedule
On February 5, 2015, a waterline burst in the men's room of CareSouth's Hartsville Medical Center building. CareSouth 30(b)(6) Dep. 15. A majority of the building was flooded. Dep. of Denise Ellis, CareSouth Human Resources (“HR”) Representative/Chief Personnel Officer (“CPO”), 26, ECF No. 37-5. A cleaning company was contracted to completely remedy the damage, including cleaning or replacing flooring, wood framing, sheet rock, and the like. Lewis Dep. 26-27. In the following year several employees at the Hartsville Medical Center began experiencing breathing issues. Ellis Dep. 28. An industrial hygiene company tested the building, revealing above-normal levels of mold. Id. at 34. “[A]bout a year later, ” CareSouth discovered mold had grown in the building as a result of the flooding. Lewis Dep. 26; See Ellis Dep. 26-27, 34 (indicating initial air-quality testing was performed in August 2016). A company took samples and determined mold, with aspergillus being the most common, was in the building. Lewis Dep. 26. Large-scale remediation, including replacement of flooring, walls, ceilings, and HVAC system, took place. Id. at 26-27. Subsequent testing showed that as a result of the remediation efforts, the air quality was better inside the building than outside. Ellis Dep. 34.
As a result of the mold problem, eight employees, including Plaintiff, made allegations of illness arising from the flood. Def. Discovery Resps. 8, ECF No. 37-5 (ex. 17 to Ellis Dep.); Ellis Dep. 58-59. Of those employees, four remained employed by CareSouth as of the time the discovery responses were provided (May 28, 2020), one retired in May 2017, and two others voluntarily resigned in September 2016 and March 2017. Def. Discovery Resps. 8.
Plaintiff indicates in her brief that “it appears that no other CareSouth employee formally filed a workers' compensation proceeding as a result of the workplace illness caused by the flood.” Pl. Mem. 10 (citing Smith Dep. 32-33 and Ellis Dep. 58-59, 194-95). It is unclear why this point is important to Plaintiff. In any event, construed in the light most favorable to Plaintiff, the cited testimony does not indicate that no one other than Plaintiff filed a workers' compensation claim. Rather, Smith testified he was unaware of whether others filed such claims, and Ellis testified that others did file such claims, although she personally did not. Ellis notes the discovery response that had listed the names of the other employees who filed claims. Ellis Dep. 58-59. Interrogatory responses are appropriately cited to support facts in support of or opposing summary judgment. Fed.R.Civ.P. 56 (c)(1)(A).
In June 2016 Plaintiff verbally reported to Ellis that she (Plaintiff) was having some issues with “what seemed to be like a sinus infection, congestion type thing that just was not getting better.” Ellis Dep. 29. In a July 30, 2016 email to Ellis with the subject “Health and Work Environment, ” Plaintiff indicated she needed to have a discussion with Ellis, indicating she believed she was “having some type of reaction with [her] lungs to [her] work environment, ” noting she had been having sinus, cough, and allergy symptoms since May 2016. Pl. July 30, 2016 email to Ellis, ECF No. 37-2 at 87. Plaintiff noted she had been treated for pneumonia and had had a fungal culture done that came back positive. Plaintiff indicated she would be seeing an allergist and a pulmonologist and would keep CareSouth apprised of findings. Id. In her deposition, Plaintiff agreed that this is how she first put CareSouth on notice that she had filed a workers' compensation claim. Pl. Dep. 62. In her capacity as CareSouth's Rule 30(b)(6) designee, Ellis indicated she did not recall CareSouth's exact response to that email. CareSouth 30(b)(6) Dep. 16.
Plaintiff testified that as of August 1, 2016 she was out of work because of the respiratory issue. Pl. Dep. 65. In September 2016 Plaintiff's pulmonologist told her to try going back to work for two-hour shifts. She did so for two days but physically could not do so. Pl. Dep. 65-66. Other than those two attempts to work in-office in September 2016, Plaintiff did not work at a CareSouth facility from July 30, 2016 through March 6, 2017. Pl. Dep. 70-71. Rather, at times Plaintiff worked remotely in small increments. Id. at 69-70. CareSouth and Plaintiff entered a written understanding that deferred to Plaintiff's physician regarding her work restrictions. Nov. 18, 2016 Memorandum, “Working While on Medical Leave, ” ECF No. 37-2 at 88. CareSouth continued to provide Plaintiff with full-time pay during the whole period. Pl. Dep. 67-68.
On September 22, 2016, Plaintiff filed a “CareSouth Carolina, Inc. Occurrence Report, ” in which she noted she had emailed HR about concerns regarding an environmental hazard and her symptoms. She noted she had seen a pulmonologist and had testing done. Occurrence Report, ECF No. 44-16 at 3. Plaintiff indicated she had been out of work from August 2, 2016 until September 12, 2016. Id. The Report included an occurrence-date of August 1, 2016. Id.
Plaintiff's workers' compensation claim is discussed in more detail below.
In an October 1, 2016 email, CMO Dr. Smith advised CEO Lewis, CPO Ellis, and Peggy Foster that Plaintiff had had a difficult week with some shortness-of-breath. Oct. 1, 2016 email, ECF No. 37-5 at 31. Dr. Smith noted Plaintiff's bronchial culture had indicated heavy growth, that she had been placed on new medications, and that she would be “drop[ping] down to 3 half-days a week for a while.” Id. Dr. Smith noted that, “[o]n a positive note, this indicates [Plaintiff] is fixable. If it was just an over reactive immune response, she might not have been fixable. But fungi is killable.” Id.
In October 2016 Plaintiff hired an attorney because of problems associated with her medical bills. Pl. Dep. 67. Ellis explained there had been a dispute between two carriers as to which one was responsible for the medical bills. Ellis Dep. 36. CareSouth became aware of the fact Plaintiff had an attorney shortly thereafter as a result of receiving a subpoena for medical records. Nov. 15, 2016 email from Ellis to Lewis and Smith, ECF No. 37-5 at 33. In response to that email chain Lewis stated that Plaintiff's hiring of an attorney had “just escalated the issues.” Id. at 35.
During the time Plaintiff was not working in the office most of her patients were seen by FNP Lynch. Smith Dep. 56-57; Lynch Dep. 51, ECF No. 44-21. On November 4, 2016, Lynch went with Plaintiff when Plaintiff's pulmonologist was to perform a bronchoscopy on Plaintiff. Lynch Dep. 62-64. During the procedure Plaintiff's oxygen saturation went very low, and the procedure was not completed. Id. After that, Lynch indicated Plaintiff was sent to see Dr. Cox, a specialist, for additional tests, including CT scans. Lynch Dep. 64. A November 10, 2016 email from Dr. Smith to Ellis indicated that Plaintiff's “bronch did not go well, her ox[y]gen level tanked.” Nov. 10, 2016 email, ECF No. 37-5 at 32.
In a December 6, 2016 letter, Plaintiff's pulmonologist indicated Plaintiff ought to be able to work off-site at a reduced schedule. Dr. Seif requested that the work place be re-evaluated after the environmental cleaning process was complete. Dec. 6, 2016 Seif Letter, ECF No. 44-17 at 13. Dr. Seif indicated that, after re-evaluating the work place, if Plaintiff's symptoms improved with treatment and she was cleared by Dr. Chavez (Infectious Disease Specialist), it was hoped that Plaintiff could return to the workplace. Id.
On January 31, 2017, Plaintiff emailed Dr. Smith, Ellis, and Lewis to update them on her medical treatment. Jan. 31, 2017 email, ECF No. 44-17 at 14. Plaintiff indicated that “Dr. Seif (Pulmonologist) states and Dr. Evans (Primary Care MD) agrees the carpet in all Lobby areas needs to be replaced before I can return to work where aspergillus was found in the last air quality report! I am so beyond ready to return to work! Thanks again for everything!” Id. Later that day Lewis responded to Smith and Lewis, “Simply put, I do not think I can comply with this expectation that all carpets be replaced in the lobby areas. I regret this means that Tona will not be able to return to work with us, but I'm beyond trying to accommodate her condition with renovating the entire Hartsville Medical Office.” Jan. 31, 2017 email, ECF No. 44-17 at 14.
Although the carpets were not all replaced, Plaintiff's physicians allowed her to return to a limited in-office work schedule (4 to 6 hours per day) on March 6, 2017. Pl. Dep. 70. In mid-April 2017 Dr. Evans permitted Plaintiff to return to working six hours per day; in early May, she was permitted to return to eight hours per day. Id. at 70-71. Plaintiff worked a full-time schedule for the remainder of her employment with CareSouth. Id. at 71. Plaintiff indicated that, after she returned, she was more tired by the end of the day, would become winded after walking, and had to sit on a stool when meeting with patients. Id. at 184-85.
C. November 2017 Written Warning regarding bullying; Anti-bullying Policy adopted in December 2017
In the fall of 2017 several employees who worked with or around Plaintiff complained to CPO Ellis about Plaintiff's behavior, generally described as “bullying.” Ellis Dep. 101, 106-108, 112. Ellis spoke to the employees one-on-one, including Clarece Jackson and Melissa Way. Id. at 103, 109-10. Ellis testified that the concerns regarding Plaintiff's conduct had been raised individually over the course of a couple of months. Id. at 106. Ellis was also told of several patients who allegedly had been treated rudely by Plaintiff; however, CareSouth could not confirm such treatment of the patients. Ellis Dep. 90, 92-93; Nov. 10, 2017 email, ECF No. 37-5 at 40.
Ellis shared the information with CEO Lewis and CMO Dr. Smith. Nov. 10, 11, 2017 emails, ECF No. 37-5 at 40-43. Lewis noted the following:
If we do not move or terminate Tona, then we will be letting Jennifer [FNP Lynch] and the rest of the staff practice in a continuing toxic environment. I doubt that [Plaintiff] is going to change her behavior. Maybe short term, but you know that this has been a long term problem that we have not had the will or courage to address in the past. Do we have the will and courage to do it now?
Nov. 11, 2017 email, ECF No. 37-5 at 42. The emails indicate CareSouth considered moving Plaintiff over to “Suite D” in the same facility. Id. at 43. That move never took place.
On November 15, 2017, CareSouth issued a “Significant Event Record” as a “Written Warning” to Plaintiff. Nov. 15, 2017 Warning, ECF No. 37-2 at 90. The Written Warning, signed by Smith, Ellis, and Plaintiff, included the following “Supporting Details”:
Over the past two months several employees have contacted the CPO [Ellis] alleging that the employee [Plaintiff] has been bullying them. I [Ellis] had one on one conversations with each employee. The things presented were that she has been screaming at or about them, that she flies off the handle about everything, that she will often get upset with them if asked to see a patient, that she gets upset and yells if the staff member doesn't do things as quickly as she would like for them to, she often makes remarks that certain employees don't work or work as hard as others, and that she [is] hostile. Several employees have stated that they now hate to come to work and that they will leave the organization if [Plaintiff] continues to bully them.Id. Plaintiff was counseled that she was to “[u]phold the Service Standards of CSC-Joy, Integrity, Teamwork, Excellence, Respect, ” and to “[c]ease bullying behavior.” Id. The Warning included a list of such behaviors. Id. Ellis and Smith met with Plaintiff to discuss the Written Warning. Pl. Dep. 73. In the space for Employee's Comments, Plaintiff wrote, “I am a provider & I should be talked to with respect on a daily basis by all employees. I'm sorry anyone would feel I would ever bully them in any way.” Nov. 15, 2017 Warning. In deposition, Plaintiff acknowledged that bullying was not acceptable in the workplace but denied having ever bullied anyone. Pl. Dep. 79.
On December 29, 2017, CareSouth's Board of Directors formally adopted an anti-bullying Policy. Bullying Policy, ECF No. 37-5 at 49-50. The Policy was applicable to and distributed to all employees, including Plaintiff. Pl. Dep. 87-88.
D. 2017 and 2018: continued medical treatment and pursuit/settlement of workers' compensation claim
1. Plaintiff's continued medical treatment regarding breathing issues
FNP Lynch testified that, during 2017 and 2018, Plaintiff used an inhaler, did breathing treatments, used air purifiers, and wore a mask to protect herself from the flu in an effort to alleviate breathing issues. Lynch Dep. 73. According to Lynch, in September 2018 Plaintiff's MUSC-based pulmonologist recommended that Plaintiff begin Nucala breathing treatments to assist with her shortness-of-breath and coughing. Lynch Dep. 47, ECF No. 44-21. Nucala is a treatment given monthly to patients with asthma and breathing issues. Id. at 47-48. The treatment is given in an infusion lab. In September 2018, Plaintiff advised CareSouth she had approval to have the Nucala treatments administered at Suite B at CareSouth, which would be more time-effective than traveling to Charleston to have the treatments. CareSouth 30(b)(6) Dep. 21-22, ECF No. 44-15; see Smith Dep. 69 (acknowledging Plaintiff advised she would be receiving Nucala; noting he did not recall specific conversation regarding the time such treatments would take or the need to cover patient care during the treatments). Between October 2018 and March 2019 Plaintiff received six Nucala treatments at CareSouth with Lynch being the provider overseeing the treatments. CareSouth 30(b)(6) Dep. 27-28. Dr. Smith recalls Plaintiff saying that her side effects from the Nucala treatments included fatigue, shortness of breath, and possibly nausea. Smith Dep. 78-79.
2. Plaintiff's workers' compensation claim: mediation and settlement
As noted above, Plaintiff initiated a workers' compensation claim, which she pursued until it was ultimately settled after an October 2018 mediation. That mediation was handled for CareSouth by Roy Howell III, counsel obtained by the workers' compensation insurance carrier. Ellis noted that neither she nor any other individual from CareSouth was present at that mediation. CareSouth 30(b)(6) Dep. 24-25. Plaintiff received $175,000 as part of the final settlement and medical benefits of $23,596.37. Pl. Dep. 93; WCC Form 19, ECF No. 37-2 at 95. The Final Lump Sum Agreement and Release was executed on November 13, 2018, and signed by Plaintiff, her counsel, and Roy Howell as counsel for the Carrier (Bridgefield Casualty Insurance Co.) and the Employer (CareSouth Carolina, Inc.). Final Agreement and Release, ECF No. 37-2 at 96-99.
On October 24, 2018, Plaintiff spoke with Dr. Smith regarding the mediation. Pl. Dep. 136. Plaintiff indicated she was worried about the safety of her job and that she would be retaliated against for her illness caused by the exposure at work. Id. at 143. Plaintiff indicated to Dr. Smith that she needed to continue to work; Dr. Smith assured Plaintiff there were no problems with her job and she could continue to work. Plaintiff recalled discussing with Dr. Smith her need to miss some work days in October 2018 because of her Nucala treatments. Id. at 144. Although Dr. Smith does not recall that particular meeting he recalls discussing with Plaintiff the fact she was missing work because of a new treatment (Nucala) she was receiving. Smith Dep. 71-73. Smith also testified that he recalled Plaintiff's “expressing a concern when she was out for a while earlier in that year [2018] and me telling her . . . she would still have a job when she came back.” Id. at 81. Smith was unable to put a timeframe on that conversation. Id.
In deposition, Ellis testified that she was informed that Plaintiff's workers' compensation case was settled in December 2018. Ellis Dep. 133-34. Dr. Smith testified that he was aware Plaintiff “got some money” from the claim, but he was unsure how much she received. Smith Dep. 87. Lewis testified she was aware Plaintiff had filed a workers' compensation claim. Lewis Dep. 28.
E. Discussions about potential change to work schedule
On December 3, 2018, Dr. Smith sent the following email to Plaintiff:
About a week ago, I looked into the possibility of you going part time. I wanted to make sure it was a possibility before I asked you if you liked the idea. To be clear, you are not being pushed, this is up to you. I was thinking you might welcome the idea, but then I talked to Lisa Friday and she thought you would probably prefer part time in office and part time at home via telemedicine. Do either of these appeal to you?
Dec. 3, 2018 email, ECF 37-2 at 100. Plaintiff replied, “I believe this conversation deserves a face to face meeting! When can we meet to discuss!” Id. Dr. Smith indicated he could meet the following day. Id. Plaintiff noted that the “Lisa” to whom the email referred would be the nurse liaison to Dr. Smith. Pl. Dep. 96. Plaintiff noted she had been “flabbergasted” when she received the email. Id. at 97.
As Chief Medical Officer, Smith was authorized to offer changes in employment status. CareSouth 30(b)(6) Dep. 33. Smith had discussed possible changes with Ellis and with Lynch. Ellis Dep. 137-38; Lynch Dep. 43, 111-12, ECF No. 44-21.
During their December 4, 2018 conversation, Smith indicated that the reason he suggested part-time was because Plaintiff had been missing work and her October numbers were lower than usual. Pl. Dep. 99, Smith Dep. 77. Plaintiff informed Smith that her November numbers were fine, that she was no longer missing work and that she could work full time. Pl. Dep. 97, Smith Dep. 78, 86-87. Smith was aware that Plaintiff had been receiving Nucala treatments. Smith Dep. 67. Plaintiff characterized the meeting as a good one and Smith told her there were no problems with her work. Pl. Dep. 98-99. During the meeting Plaintiff and Smith discussed some flexibility as to Plaintiff's potentially working some telehealth work from home on some days, although CareSouth did not believe a specific number of days was discussed. CareSouth 30(b)(6) Dep. 33-34. Plaintiff and Smith agreed to wait until January or February to revisit the question of whether she wanted to work doing telehealth some days. Pl. Dep. 99.
In an email recapping the December 4, 2018 meeting, Smith indicated Plaintiff appreciated Smith “going the extra mile to accommodate her health, but felt it unnecessary due to her recovery.” Dec. 8, 2018 email from Smith to Lewis, Ellis, and Duncan recapping meeting, ECF No. 37-5 at 59. In the same meeting-recap Smith relayed that Lynch had entered the meeting room at one point and that Smith was giving Lynch advice on how to utilize a scribe. Id. Plaintiff injected a comment about the person Smith was using as a scribe, who had been terminated but then rehired by CareSouth. Smith took offense at the comment which he took to be an exaggeration at the expense of another employee and indicated that he and Ellis would handle it. Id.; Smith Dep. 63-65.
F. Late 2018 events and decision to terminate
Jacquelyn “Cindi” Davis and Shannon Auman, both RNs who worked on Suite B with Plaintiff, relayed events of December 5, 2018. Auman Decl. ¶ 6, ECF No. 37-9 at 9-10; Davis Decl. ¶ 9, ECF No. 37-9 at 2-4. One of Plaintiff's patients suffered an event in which the heart suddenly beat much faster than normal. Auman indicated she went to the room to try and assist Plaintiff, but Plaintiff “yelled get out and slammed the door.” Auman Decl. ¶ 6. Later, Auman heard Plaintiff tell others that, if the event had happened to one of Lynch's patients Auman and others would have tried to assist her. Id. Davis also indicated she had offered to assist Plaintiff during that event but her offer was turned down. Davis Decl. ¶ 9. Suite B workers also relayed an incident in which Plaintiff's interactions with her scribe, Tracy Hicks, made Hicks cry. Clarece Johnson Decl. ¶ 5, ECF No. 37-9 at 7-8.
FNP Lynch wrote Ellis on Friday, December 7, 2018, advising Ellis that a number of Lynch's staff members had gone to see her and were upset and were considering quitting. Lynch Dep. 101, 112-14; Ellis Dep. 146, 147-48. Lynch indicated she was contacting Ellis because the issues involved Plaintiff and Lynch did not want to become involved. Lynch Dep. 118; Ellis Dep. 148. At Lynch's request, Ellis went to Suite B that day. Dec 7, 2018 email from Ellis to Smith and Lewis, ECF No. 37-5 at 53-55. Lynch had not permitted the staff members to “vent” to her to avoid any conflict. Id. at 53. Ellis let the staff know she was available to discuss matters if they so wished to do so. Id. Six employees spoke individually with Ellis. She compiled her notes, which included various complaints about Plaintiff, in the detailed email sent to Smith and Lynch. Id. Because it was a Friday, Plaintiff and her staff were not working, so Ellis did not speak to them that day. Ellis Dep. 147. Late that afternoon Ellis sent a detailed email to Smith and Lewis summarizing notes from her meetings with six staff members. Because it is central to CareSouth's defense, the lengthy email is quoted herein:
Because it contains information that is or could be provided in a form admissible at trial the court appropriately considers it herein. Plaintiff notes the email came from Ellis's handwritten notes and that Dr. Smith and Lewis did not personally observe the behavior described. Pl. Mem. 28. Plaintiff does not object to the email itself.
Early this morning I received a text from Jennifer Lynch asking if I could come by the office. When I arrived she said that the staff had a difficult last few days and that she was afraid that a number of them were wanting to leave. She went on to say that she had not let them vent to her to avoid any conflict. I let the staff know that I was there and available should any of them want to come chat with me. They did. I spoke to each of them individually and privately. The notes below are what they shared with me.
Clarece Johnson, RMA
• There is a lot of whispering with Tona's staff and a lot of loud talking and drama which patients hear.
• I was embarrassed and upset when Tona went into a patient's exam room [redacted in original] and asked the patient why she was transferring.
• Yesterday Tona called another patient demanding to know why she was transferring to another provider.
• Tona does a lot of negative talking about staff in front of her student NP and trash talks the staff every Thursday when the wellness nurse, Loretta McGirt, is here.
• I try to help her every chance I can but she always makes me feel like I'm not good enough.
• She was especially mean on Wednesday and had her RMA, Tracy Hicks, in tears.
• Tona has nothing good to say, it's always negative and mean.
• It gets back to us that she talks about our team constantly.
• She apologized to us all after work on Wednesday.
• It had gotten better for a little while but it's getting really bad now.
Jacquay Archer, Blended Assistant
• I don't mind doing anything to help anyone but there is always a lot of snide remarks.
• On Wednesday Tona was just nasty.
• Wednesday she had a patient with an emergency, several went in to help her including Jennifer and Shannon and she got angry and kept saying things like, “I don't need your help. I've been a nurse for 30 years, and everybody get out.” It was bad.
• She always does fine on Thursday when Dr. Duncan is here but as soon as she leaves Tona starts.
• Anytime Kendra is out and we try to help we just get remarks like, “I wish Kendra was here.”
• Tona talks to students about what goes on in the site.
• She's rude to patients. A patient came to the exam room door and asked if she could choose her own podiatrist. When Tona came we asked her and she got mad. She started saying rude things outside of the patient's room and then inside. When the patient left she was crying and said she was going to transfer somewhere else.
• She is often disrespectful and rude to patients and the staff, but out of respect I just keep quiet.
Deyonna Breeden, LPN
• I'm new here. I'll just say that there is a lot of attitude. Other than that, I'm just here to do my job and go home.
• Denise - Deyonna just transferred into Suite B about two months ago. She has asked Tracie T and Lisa if she can go back floating. I told her that I had heard she had asked for a transfer and asked her why. She said, “the attitude. I can take it I guess, but it's a lot to deal with.”
Hayley Thomas, Blended Assistant
• I already feel like I have a target on my back so I'm afraid to really say anything.
• I asked her why she felt that way. Her response, “when Sherrie was here she called me into her office on several occasions and said ‘what have you done now to upset Tona.' Tona would complain about me a lot apparently.”
• I feel like I need to move out of here or my job will not be safe.
• I kiss ass all the time just to stay safe.
• Everything that is going on is just not right.
• Tona yells at Jennifer all the time in front of staff and patients. And when Jennifer is not here she's texting or calling her and fussing.
• She embarrasses us often in front of everyone.
• This is only going to make it worse, she already has it out for me.
• I dread coming to work and we always know when there is going to be an eruption. You can feel it coming.
• When she does fuss at us or is mean she will apologize at the end of the day thinking it will make everything better.
• She came to me and told me that Dr. Smith talked to her about going part time but she can't afford to lose her insurance.
Carla Ransom, Medical Office Assistant
• If you ask Tona any questions you get yelled at.
• This week a patient [redacted in original] came to check out in tears. She said she was never coming back that “she made me feel unwanted”. She said she wanted her records so she could transfer. I comforted her the best I could and asked her to please not leave us. I was crying right along with her.
• I interviewed this week for a CHW position and hope I get it. The only reason I want to leave is the environment. You never know what you are going to get from day to day. After this happened with [redacted in original] I want to leave even more.
Cyndi Davis, RN, IV Therapy
• Things lately have been even more stressful than usual.
• I love working for CareSouth and I love what CareSouth stands for or I wouldn't drive from Lake View every day but if we don't have joy, integrity, teamwork, excellence, and respect with each other how can we have it for our patients?
• The things happening in this suite are just not professional and I don't know if I can keep on.
• Tedder talks about Jennifer, and I am a witness to it, to the nursing student, Loretta McGirt, her staff, and anyone who will listen.
• Tedder's lack of values bothers me.
• Tona has come to me more than once to repeat her private conversations with Jennifer.
• On at least three occasions she said to me, in front of staff, that the only reason Jennifer nominated me for employee of the month was because she thought that I was going to leave.
• She will do things like buy lunch for the staff and then say, “I bought lunch, but I'm a bully.”
• Wednesday Tona had a SVT patient. Ms. Lynch went to assist her and she got offended and said, “I've been a nurse for over 30 years. I'm not stupid.” Then yesterday she was telling everyone that no one came to help her during the emergency.
• In front of me and the student she said, “Where is Shannon. If this was Jennifer's patient she would be here helping.” Shannon did try to help her but she told her to get out.
• Tona came up to me yesterday and started with “I appreciate all you do to help me” then told me that Dr. Smith asked her to go part time. She said after he left she took Jennifer into a room and said to her “what the f*** did you do to get me into this spot.”
• She vents openly to her staff at the nurses station.
• She buys her staff lunch and such so they will feel obligated to her.
• I've lost respect for Tedder.
• Everyone works well together when Tona is not here, even her team.
• There is never any drama until Tona starts the drama.
• This whole situation has really ate me up and it's a constant rollercoaster ride of emotion and hostility.
• Nobody wants to work in this environment. It's scary and I wonder if there's a target on my back because I'm talking.
• She has said to staff that she knows if there wasn't a worker's comp claim that she'd be fired. She has said this in front of staff and the student.
I know. It's a lot.
Denise Ellis, PHR
Dec. 7, 2018 email from Ellis to Smith and Lewis, ECF No. 37-5 at 53-55.
The following morning, December 8, 2018, Smith emailed Lewis and Ellis and referenced the incident that had occurred during the December 4, 2018 meeting at which Plaintiff had made remarks he perceived as boasting at the expense of another employee. Dec. 8, 2018 email, ECF No. 37-5 at 59; Smith Dep. 63-65. Lewis delegated decisions regarding Plaintiff to Ellis and Smith. Lewis Dep. 96; Ellis Dep. 159-61; Smith Dep. 89. Sometime during the following week-neither can say with any certainty exactly when-Ellis and Smith decided that Plaintiff should be terminated. Ellis Dep. 159-60; Smith Dep. 90. Smith indicated he deferred to Ellis's recommendation. Smith Dep. 90. They decided to delay the termination until after the holidays. Id.
On December 23, 2018, Plaintiff sent Lewis a “Merry Christmas” email in which she noted that, “after 2 long years, I am beginning to have some good days with less shortness of breath and fatigue after new meds were started in October for my treatments through Pulmonologist at MUSC.” Dec. 23, 2018 email, ECF No. 37-2 at 101. Plaintiff noted she hoped the treatments would prove successful in 2019. Id. She told Lewis that her job at CareSouth was her “passion” and she wished to continue her career there for “many more years to come.” Id. Plaintiff thanked Lewis for her “encouragement and patience with allowing [her] to continue as a part of this wonderful organization and Medical Team and Home”! Id.
G. Termination of Plaintiff
On the afternoon of January 2, 2019, Ellis sent Plaintiff an email requesting that Plaintiff meet in Ellis's office at 4:30pm on January 3, 2019 to discuss a few things. CareSouth 30(b)(6) Dep. 41. On January 3, 2019, Plaintiff met with Ellis and Dr. Smith. Id.; Pl. Dep. 109, Ellis Dep. 177-78. Dr. Smith was aware that the afternoon meeting between Plaintiff, himself, and Ellis scheduled for January 3, 2019 was going to be a meeting to terminate Plaintiff. Smith Dep. 101. Dr. Smith and Ellis met to discuss the details of the termination prior to the meeting with Plaintiff. Id.
At the meeting, Smith and Ellis advised Plaintiff she was being terminated because of improper behavior toward other employees. They did not tell Plaintiff the employees' names but indicated they had statements they had received in December 2018. Pl. Dep. 116. Plaintiff became upset and “begged” Dr. Smith not to terminate her because she needed the health insurance. Id. at 110-11. Ellis indicated CareSouth could continue to pay the insurance for three months. Id. at 111. Plaintiff was crying and then Dr. Smith and Ellis began crying. Id. at 110. Plaintiff believed they were “almost as upset” as she was but that they had been “put in a situation that they had to do something that they really didn't believe in, but they had no choice.” Id. After Ellis had agreed CareSouth would pay Plaintiff's insurance for three months Plaintiff begged Dr. Smith not to terminate her because of her preexisting condition. Id. at 111. Dr. Smith told Ellis he “could not do it, ” and indicated he needed to speak with someone and that they would meet with Plaintiff the following morning. Id. The three of them hugged as the meeting ended. Id.
On the morning of January 4, 2018, Dr. Smith spoke with Plaintiff on the telephone rather than meeting face-to-face. Dr. Smith told Plaintiff he could not go through those emotions again. Pl. Dep. 113. Dr. Smith informed Plaintiff that she was terminated. Id. Plaintiff went to Suite B around 11:00 a.m. that morning to collect her things. Id. At that time, Plaintiff told everyone she had been terminated. Davis Decl. ¶ 12; Johnson, Decl. ¶ 7; Auman Decl. ¶ 6.
H. Administrative remedies and litigation
On March 13, 2019, Plaintiff submitted a Charge to the EEOC. Charge, ECF No. 37-2 at 121. The Charge expressly references the Intake Questionnaire she submitted to the EEOC. Intake Questionnaire, ECF 37-2 at 102-126. The EEOC issued a Dismissal and Notice of Rights (a “right-to-sue letter”) on January 13, 2020. Id. at 122. Plaintiff filed suit in the Darlington County Court of Common Pleas; the matter was removed to this court on February 12, 2020. ECF No. 1.
II. Standard of Review
The court shall grant summary judgment “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(a). The movant bears the initial burden of demonstrating that summary judgment is appropriate; if the movant carries its burden, then the burden shifts to the non-movant to set forth specific facts showing that there is a genuine issue for trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). If a movant asserts that a fact cannot be disputed, it must support that assertion either by “citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials;” or “showing . . . that an adverse party cannot produce admissible evidence to support the fact.” Fed.R.Civ.P. 56(c)(1).
In considering a motion for summary judgment, the evidence of the non-moving party is to be believed and all justifiable inferences must be drawn in favor of the non-moving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). However, “[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted.” Id. at 248. All that is required is that “sufficient evidence supporting the claimed factual dispute be shown to require a jury or judge to resolve the parties' differing versions of the truth at trial.” Anderson, 477 U.S. at 249. “Mere unsupported speculation . . . is not enough to defeat a summary judgment motion.” Ennis v. Nat'l Ass'n of Bus. & Educ. Radio, Inc., 53 F.3d 55, 62 (4th Cir. 1995). A party cannot create a genuine issue of material fact solely with conclusions in his or her own affidavit or deposition that are not based on personal knowledge. See Latif v. The Cmty. Coll. of Baltimore, 354 Fed.Appx. 828, 830 (4th Cir. 2009) (affirming district court's grant of summary judgment, noting plaintiff's affidavit, which offered conclusions not based on his own knowledge, did not create genuine issues of material fact). The court cannot make credibility determinations or weigh the evidence, but the court should examine uncontradicted and unimpeached evidence offered by the moving party. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000).
III. Analysis
A. Plaintiff's ADA claims
The ADA provides in part that an employer may not “discriminate against a qualified individual on the basis of disability in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment.” 42 U.S.C. §§ 12111(2), 12112(a). The ADA Amendments Act (“ADAAA”), effective January 1, 2009, informed the court's interpretation of certain aspects of the ADA, particularly regarding whether an impairment is considered a “disability” for purposes of ADA-based protections. At bottom, the court is mindful that the “primary purpose of the [ADA] Amendments Act was to make it easier for people with disabilities to obtain protection under the ADA.” Interpretive Guidance on Title I of the ADA, 29 C.F.R. § Pt. 1630, App. (Section 1631.01(c) Construction).
Violations of the ADA occur when the employer wrongfully discharges a qualified individual with a disability, fails to make reasonable accommodations for her, or retaliates against her for exercising rights under the ADA. See Rhoads v. F.D.I.C., 257 F.3d 373, 387 n.11 (4th Cir. 2001); 42 U.S.C. § 12101, et seq. Defendant seeks summary judgment as to all of Plaintiff's claims. Plaintiff's Amended Complaint includes ADA-based claims of disability discrimination and retaliation. Am. Compl. ¶¶ 73-85. The court considers these claims in turn.
Although Plaintiff's brief in opposition to summary judgment also references the “smaller issue” of a failure-to-accommodate violation of the ADA, Pl. Mem. 33-40, Defendant correctly notes on Reply that Plaintiff has not administratively exhausted a failure-to-accommodate claim, as neither her administrative charge nor her Amended Complaint plainly includes such a claim, Reply 9-10. More particularly, the Amended Complaint clearly delineates only two ADA-based claims: for discrimination and retaliation. Accordingly, no failure-to-accommodate claim is appropriately before the court. See generally Mason v. Wyeth, Inc., 183 Fed.Appx. 353, 359 (4th Cir. 2006) (finding plaintiff's plainly delineated specific claims in pleading did not include a failure-to-accommodate claim and did not suffice to present such a claim). To the extent Defendant seeks summary judgment as to any failure-to-accommodate claim, the motion should be granted.
1. Disability discrimination
The ADA prohibits employers from “discriminat[ing] against a qualified individual on the basis of disability in regard to . . . the hiring, advancement, or discharge of employees.” 42 U.S.C. 12112(a). To establish a claim for disability discrimination under the ADA, a plaintiff must ultimately prove (1) that [s]he has a disability, (2) that [s]he is a “qualified individual” for the employment in question, and (3) that h[er] employer “discharged him (or took other adverse employment action) because of [her] disability.” Jacobs v. N.C. Admin. Off. of the Cts., 780 F.3d 562, 572 (4th Cir. 2015). Disability discrimination may be proven through direct and indirect evidence or through the burden-shifting framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Jacobs, 780 F.3d at 572; see also Corey v. Aldora Aluminum & Glass Prod., Inc., No. 2:19-CV-1523-SAL-MHC, 2021 WL 4596593, at *3 (D.S.C. July 26, 2021), report and recommendation adopted, No. 2:19-CV-1523-SAL, 2021 WL 4145880 (D.S.C. Sept. 13, 2021).
Here, the parties principally analyze the discrimination claim using the burden-shifting proof method. Within the context of the burden-shifting framework, however, Plaintiff briefly sets out what she terms as “direct evidence” of disability discrimination. Pl. Mem. 26-27. The court briefly addresses this purported direct evidence first.
a. Direct evidence
In the section setting out arguments regarding the “Termination giving inference of discrimination” prong of the prima facie case, Plaintiff also suggests she has direct evidence of CareSouth's intent to discriminate against her on the basis of her alleged disability. Pl. Mem. 26. “Direct evidence is evidence of conduct or statements that both reflect directly the alleged discriminatory attitude and that bear directly on the contested employment decision.” Cole v. Family Dollar Stores of Md., 811 Fed.Appx. 168, 175 (4th Cir. 2020) (internal quotations omitted). Direct evidence is evidence from which no inference is required. Ramseur v. Concentrix CVG Customer Mgmt. Grp. Inc., 467 F.Supp.3d 316, 323 (W.D. N.C. 2020), aff'd, 837 Fed.Appx. 204 (4th Cir. 2021). The first statement to which Plaintiff refers relates to a response CEO Lewis gave to Plaintiff's counsel during discovery in this litigation as to why another individual, CMO Smith, may have been considering offering Plaintiff part-time work. Pl. Mem. 26 (noting Lewis's deposition testimony regarding what she knew that may have impacted why Smith considered a reduced workload for Plaintiff, Lewis Dep. 72). It is difficult to imagine how this testimony regarding what another individual may have taken into account could be considered “direct” evidence related to the actual adverse action at issue here-Plaintiff's termination. Nor does Lewis's January 31, 2017 email-written nearly two years prior to the termination-amount to direct evidence. Rather, the January 2017 email has nothing to do with the employment decision in question. Rather, it relates to Plaintiff's request that an entire building be recarpeted. That Lewis indicated in January 2017 that she regretted that the business decision not to recarpet the building could impact Plaintiff's ability to return to work clearly did not relate to her 2019 termination. Plaintiff did return to work months after the January 2017 email and without the requested recarpeting. To the extent Plaintiff is attempting to establish disability discrimination using the direct-evidence approach, she has not done so. The court now considers the disability discrimination claim based on the burden-shifting analysis.
b. Burden-shifting analysis: prima facie case
At the first step of the McDonnell Douglas approach, a plaintiff establishes a prima facie case of discrimination under the ADA if she demonstrates that (1) she was within the ADA's protected class; (2) she suffered an adverse employment action; (3) she was fulfilling her employer's legitimate expectations at the time of the adverse action; and (4) the circumstances surrounding the adverse action “raise a reasonable inference of unlawful discrimination.” Reynolds v. Am. Nat'l Red Cross, 701 F.3d 143, 150 (4th Cir. 2012); Haulbrook v. Michelin N. Am., 252 F.3d 696, 702 (4th Cir. 2001). “Evidence of all four of these elements is necessary to survive summary judgment.” Id. If plaintiff establishes a prima facie case, defendant then has the burden of persuasion as to a non-discriminatory explanation for its actions. If it does so, plaintiff must rebut defendant's explanation as pretext for discrimination. While intermediate evidentiary burdens shift back and forth, the ultimate burden of persuasion that the defendant engaged in intentional discrimination remains at all times with the plaintiff. See Reeves, 530 U.S. at 146-47 (“The ultimate question is whether the employer intentionally discriminated, and proof that ‘the employer's proffered reason is unpersuasive, or even obviously contrived, does not necessarily establish that the plaintiff's proffered reason . . . is correct.'”) (quoting St. Mary's Honor Center v. Hicks, 509 U.S. 502, 506 (1993)). See also Ennis, 53 F.3d at 58 (citing St. Mary's Honor Center and noting the same in ADA context).
Plaintiff never expressly discusses the “meeting expectations” prong of the prima facie case. Rather, she references a different recitation of the prima facie claim, looking to Jacobs, which does not expressly include a “meeting expectations” prong to the prima facie claim. Pl. Mem. 24. As noted below, however, Jacobs included analysis of the employee's work performance as part of the “qualified” portion of the prima facie case. Jacobs, 780 F.3d at 574-75.
i. Individual with a disability
Generally, a plaintiff may satisfy the first element of an ADA claim-being an individual with a disability within the meaning of the ADA-by satisfying one of the ADA's three definitions of disability. “The term ‘disability' means, with respect to an individual-“(A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual; (B) a record of such an impairment; or (C) being regarded as having such an impairment . . . .” 42 U.S.C. § 12102(1). The ADA does not define “major life activities, ” but the regulations explain that it includes functions such as “[c]aring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, sitting, reaching, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, interacting with others, and working[.]” 29 C.F.R. § 1630.2(i)(1)(i). Plaintiff proceeds under the first definition, submitting that her “[i]nvasive pulmonary aspergillosis, reactive airway disease, asthma, and permanent lung damage” satisfies the definition of a disability. Pl. Mem. 24-25. In support, Plaintiff submits the affidavit testimony of coworkers, as well as the October 15, 2018 opinion of pulmonologist Dr. John Cox, which was part of the proceedings concerning Plaintiff's workers' compensation claim against CareSouth. See Pl. Mem. 25-26; I. Johnson Aff. ¶¶ 28-31, ECF No. 44-3 (describing her observations of Plaintiff's restricted-airway symptoms that impeded her breathing); Dr. Cox Opinion Letter, Lewis Dep. Ex. 14 (provided to Defendant as part of workers' compensation proceeding and opining Plaintiff had a “class 4 pulmonary disability related to her severe bronchial hyperactivity.”). See EEOC Questionnaire and Charge Attachment, ECF No. 37-2 at 116 (discussing opinion and workers' compensation claim).
Defendant's objections to affidavits presented by Plaintiff are noted. However, to the extent the affiants speak of their own observations the court finds it appropriate to consider them.
Although Dr. Cox's letter is listed as an exhibit to the Lewis deposition, ECF No. 44-13 at 5, the letter has not been provided to the court.
Similarly unavailing is Defendant's position that the letter is hearsay and cannot be considered. As the Fourth Circuit has noted, a court may consider “otherwise inadmissible materials” on summary judgment so long as “it will be possible to put the information . . . into an admissible form.” Humphreys & Partners Architects, L.P. v. Lessard Design, Inc., 790 F.3d 532, 538 (4th Cir. 2015). The letter from Dr. Cox was used in a workers' compensation proceeding that involved these same parties. Arguably, Plaintiff could provide Dr. Cox's finding in an admissible form if the matter goes to trial. Defendant's arguments that this court cannot consider it at all at this juncture is unavailing. In any event, Plaintiff has presented testimony regarding issues with her breathing that could establish a disability under the ADAAA's lenient standard without Dr. Cox's opinion. Although Defendant objects to the consideration of Dr. Cox's report because it has not been authenticated and is not attached to an affidavit, see Reply 4, the court notes that the 2010 amendments to the Federal Rules of Civil Procedure changed that requirement. As noted in Wright and Miller, after the 2010 change, “although the substance or content of the evidence submitted to support or dispute a fact on summary judgment must be admissible, the material may be presented in a form that would not, in itself, be admissible at trial.” 10A Charles Alan Wright & Arthur R. Miller, Fed. Prac. & Proc. Civ. § 2722 (4th ed.).
Congress broadened the definition of “disability” by enacting the 2008 Amendments Act to the ADA (“ADAAA”), Pub. L. No. 110-325, 122 Stat. 3553 (2008). Jacobs, 780 F.3d at 572. The ADAAA's purpose was to “make it ‘easier for people with disabilities to obtain protection under the ADA, '” and to clarify that the focus should be on “whether discrimination has occurred, not whether the individual meets the definition of disability.” Id. In other words, “[t]he question of whether an individual's impairment is a disability under the ADA should not demand extensive analysis.” Id. (citation omitted).
For a major life activity to be “substantially limit[ed], ” the impairment need only “substantially limit[ ] the ability of an individual to perform a major life activity as compared to most people in the general population. An impairment need not prevent, or significantly or severely restrict, the individual from performing a major life activity in order to be considered substantially limiting.” 29 C.F.R. § 1630.2(j)(1)(ii). The undersigned is of the opinion that Plaintiff has established she had an actual disability under this standard. She has presented evidence that coworkers observed her difficulties with breathing, and Defendant was well aware of her issues and permitted her to take leave and then permitted her to receive specialized drug infusions for her breathing problems at the CareSouth facility where she worked. Plaintiff's disability has been established under the ADAAA's standards, and it does not require further analysis. In making this recommendation, the undersigned finds Defendant's focus on the unpublished case of Miller v. Maryland Department of Natural Resources, 813 Fed.Appx. 869, 875 (4th Cir. 2020), unavailing. In Miller, the court was considering a Rule 12 motion and found that the plaintiff had not adequately pleaded a disability based on his barebones averments of having a disability and the plaintiff's argument that the district court should have “inferred” what difficulties he encountered that would have amounted to “substantial limitations.” Id. at 875-76. Here, Plaintiff has presented evidence of a disability in the major life activity of breathing and has satisfied that she is protected by the ADA, as amended.
ii. Adverse action
The parties do not dispute that Plaintiff's termination was an adverse action. The second prong of the prima facie case has been satisfied.
iii. Meeting reasonable expectations/qualified individual
Most expressions of the prima facie requirements of a disability-discrimination claim include a requirement that Plaintiff show she was meeting reasonable expectations. Plaintiff cites to Jacobs, which does not include a “meeting reasonable expectations” prong, per se. However, in Jacobs, the court was considering the prima facie case and considered whether the plaintiff was meeting legitimate expectations under the prong characterized as whether the plaintiff was a “qualified individual for the employment in question.” Jacobs, 780 F.3d at 574 (considering the “second prong” of the prima facie case, whether plaintiff was a “qualified individual for the employment in question” by focusing on the parties' evidence concerning plaintiff's on-the-job performance).
Regardless of how the requirement is phrased, the court finds an ADA plaintiff proceeding under the burden-shifting paradigm must show she was meeting reasonable expectations at the time of the adverse action at issue. Plaintiff's failure to address this portion of her prima facie case arguably could be reason enough for the court to grant summary judgment as to the disability-discrimination claim, as Defendant urges. However, given the Fourth Circuit's very recent guidance regarding the “reasonable expectations” prong of a similar Title VII employment-discrimination prima facie test, the undersigned finds the record includes evidence from which Plaintiff has at least raised an issue of fact as to whether her performance was satisfactory and calling into question whether CareSouth's stated expectations were genuine. See Sempowich v. Tactile Sys. Tech., Inc., No. 20-2245, 2021 WL 5750450, at *3-4 (4th Cir. Dec. 3, 2021) (noting that, at prima facie stage, the inquiry regarding performance is not necessarily confined to the employer's perception of the employee's performance; finding an employee may establish this prong of her prima facie case by introducing evidence that raises a question of fact as to whether the employer's expectations were legitimate or genuine by pointing to positive reviews or events that took place near the time of the adverse action).
Here, of course, CareSouth points to the complaints about Plaintiff's alleged bullying in arguing she cannot meet this prong of her prima facie case. Def. Mem. 21-22 (noting warning to Plaintiff about bullying approximately one year before her termination as well as the additional complaints in the month or so before her termination as cataloged in the Ellis Dec. 2018 email). However, Plaintiff has at least raised an issue of fact as to the performance prong by pointing to her November 2018 evaluation in which she met or exceeded expectations in every way. Pl. Mem. 19 (citing excerpts from Smith and Lewis Deps.). This evaluation was given just over a month before she was terminated. See also Pl. Mem. 11 (noting October 24, 2018 conversation between Plaintiff and Smith in which Smith assured Plaintiff there were no problems with her job).
As noted by the Fourth Circuit in Sempowich, at the pretext stage of the analysis the focus is on the employer's perceptions of performance. At this prima facie stage, however, the undersigned is satisfied that Plaintiff has at least created an issue of fact as to whether she was meeting expectations/was qualified for her position. To the extent CareSouth focuses on Plaintiff's earlier reprimand for “bullying” behavior in submitting she was not meeting expectations, Plaintiff is also permitted to point to positive performance reviews during this time. Sempowich, 2021 WL 5750450, at *4 (“And if Tactile asserts that it reassigned Sempowich's position due to weaknesses she supposedly demonstrated throughout most of her tenure, it cannot simultaneously argue that the court should ignore evidence about her performance during that same period.”).
The court next considers the final prong of the prima facie analysis-whether Plaintiff was discharged under circumstances that raise a reasonable inference of unlawful discrimination.
iv. Inference of unlawful discrimination
Defendant also argues Plaintiff has not established the fourth prong of her prima facie case- providing facts that permit a reasonable inference of unlawful discrimination. Def. Mem. 22-23, Defendant argues Plaintiff cannot establish this prong because she cannot show similarly situated employees with similar behavior who were treated differently. As noted by Defendant, this is a common way plaintiffs in discrimination cases establish this prong. Id.
Plaintiff's memorandum in response to the pending motion includes a sub-heading, “Termination giving inference of discrimination.” Pl. Mem. 26. This section includes no discussion of comparators; rather, it casts this prong as one of causation and submits there are several pieces of “direct evidence of disability discrimination” that satisfy this prong. Id. As discussed above, this “direct evidence” includes CEO Lewis's deposition testimony that CareSouth had considered having Plaintiff move to part-time status in November and December of 2018 because of “her health and her recovery, [which were] not going well.” Lewis Dep. 72. Plaintiff also looks to Lewis's January 2017 email indicating CareSouth could not recarpet an entire office based on Plaintiff's impairment-related request even if meant Plaintiff could not return to work. Jan. 31, 2017 Lewis email, ECF No. 44-17 at 14. Elsewhere in her memorandum, Plaintiff devotes several pages to setting out reasons she considered her fellow NP, Lynch, to be a non-disabled comparator who had been accused of bullying but had not been terminated. Pl. Mem. 19-21. On Reply, Defendant submits Plaintiff has not demonstrated Lynch was an appropriate comparator. Reply 6-7.
Without delving into the comparator analysis, the undersigned is satisfied that Plaintiff has satisfied her burden of showing a prima facie “inference of discrimination.” See Texas Dep't of Cmty. Affs. v. Burdine, 450 U.S. 248, 253 (1981) (noting in Title VII context that “[t]he burden of establishing a prima facie case of disparate treatment is not onerous.”). CareSouth plainly was aware of Plaintiff's difficulties, including her extended leave related to those health difficulties and it permitted Plaintiff to carve out time from her work schedule for appointments, including in-house infusion treatments. Dr. Smith's contemplation of reduced hours for Plaintiff based on her issues took place only one-to-two months prior to her termination. As noted above, the undersigned finds this evidence is not “direct” proof of discrimination. Cf. Ramseur, 467 F.Supp.3d at 323 (finding in different discrimination context that direct evidence requires no inference). However, the discussion of a change in status near the time of termination is sufficient for this relatively light prima facie burden. The undersigned is of the opinion Plaintiff has set forth evidence of an inference of discrimination, thereby satisfying the fourth prong of the prima facie case. The analysis does not end here, of course.
c. Burden-shifting analysis: pretext
CareSouth has proffered a legitimate, nondiscriminatory reason for terminating Plaintiff-that she engaged in conduct violative of the anti-bullying policy. Plaintiff does not challenge that CareSouth has satisfied its burden of persuasion. The burden shifts back to Plaintiff to demonstrate that CareSouth's stated reason was pretextual. “[T]o show pretext, a plaintiff may show that an employer's proffered nondiscriminatory reasons for the termination are inconsistent over time, false, or based on mistakes of fact.” Haynes v. Waste Connections, Inc., 922 F.3d 219, 225 (4th Cir. 2019). “Once the plaintiff offers such circumstantial evidence, the case must be decided by a trier of fact and cannot be resolved on summary judgment.” Id.
In support of her pretext argument Plaintiff submits that the “bullying justification for termination is pretextual[, ]” and that the central bullying accusation has been “completely debunked during discovery.” Pl. Mem. 27. Plaintiff submits CareSouth did not discuss with her scribe, Hicks, the incident in which Hicks cried when working for Plaintiff. Further, Plaintiff submits that the decisionmakers relied on information provided to Ellis by numerous employees but that the decisionmakers had not themselves observed bullying behavior. This, according to Plaintiff, creates a “material fact in dispute” regarding whether Plaintiff was, in fact, bullying her subordinates. Pl. Mem. 28.
This, however, is not the applicable standard at this juncture in the burden-shifting analysis. While Plaintiff takes issue with whether she was a “bully, ” the question for the court at this point of the analysis is not whether CareSouth's determination that she would be terminated for bullying was ““wise, fair, or even correct.” See Hawkins v. Pepsico, 203 F.3d 274, 279 (4th Cir. 2000) (quoting DeJarnette v. Corning, Inc., 133 F.3d 293, 299 (4th Cir. 1998)). As noted in DeJarnette, the court does not sit as a “super-personnel department weighing the prudence of employment decisions made by firms charged with employment discrimination.” Id., 133 F.3d at 299; cf. Sempowich, 2021 WL 5750450, at *3 (noting the focus at the pretext stage is on the employer's perception of the employee's behavior, performance, and actions). Instead, the Fourth Circuit has long “recognized the importance of giving an employer the latitude and autonomy to make business decisions” as long as the employer does not violate federal employment statutes. Henson v. Liggett Group, Inc., 61 F.3d 270, 277 (4th Cir. 1995). Significantly, Plaintiff does not correct or address the testimony of those employees Ellis interviewed on December 7, 2018-the interviews that were detailed in an email to Lewis and Smith and informed CareSouth's decision that Plaintiff should be terminated. Rather, Plaintiff looks to testimony of herself and others to suggest she was not a “bully.” This evidence may establish that she and some others did not necessarily agree that she was a “bully.” It does not, however, establish pretext. Further, Plaintiff testified in her deposition that “CareSouth believed what they put on the piece of paper [that Plaintiff's behavior was bullying].” Pl. Dep. 120. Similarly, Plaintiff's complaint that CareSouth waited until after the holidays showed pretext is unavailing. Waiting a few weeks because of the holidays does not demonstrate that CareSouth's decision to terminate Plaintiff for bullying behavior was “wrong” or that it “changed over time.” Further, the undersigned notes that the December 2018 incident/interviews were not the first time concerns had been expressed regarding Plaintiff's bullying behavior. Plaintiff had been approached and reprimanded about bullying behavior in November 2017. Considering all evidence as a whole, Plaintiff has not demonstrated that CareSouth's decision in December 2018/January 2019 to terminate her based on issues with bullying behavior was pretextual in nature. Summary judgment is appropriate as to the disability discrimination cause of action.
2. Failure to accommodate
In opposing summary judgment, Plaintiff spends several pages addressing a failure to accommodate claim that is not in her Complaint and is not appropriately before the court. As noted above, Plaintiff's Complaint includes only disability discrimination and retaliation claims based on the ADA. Accordingly, summary judgment should be granted as to any failure-to-accommodate claim. See Mason, 183 Fed.Appx. at 359.
3. Retaliation
Under 42 U.S.C. § 12203, “[n]o person shall discriminate against any individual because such individual has opposed any act or practice made unlawful by [the ADA] or because such individual made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under [the ADA].” As with the ADA generally, courts typically apply the standards for Title VII retaliation claims to ADA retaliation claims. Lewis-Davis v. Bd. of Educ. of Baltimore Cnty., No. CV ELH-20-0423, 2021 WL 4772918, at *15 (D. Md. Oct. 13, 2021) (citing Laird v. Fairfax Cnty., 978 F.3d 887, 893 n.5 (4th Cir. 2020); S.B. ex rel. A.L. v. Bd. of Educ. of Hartford Cnty., 819 F.3d 69, 78 (4th Cir. 2016); Rhoads, 257 F.3d at 391.) As with her discrimination claim, Plaintiff may demonstrate retaliation through either direct evidence of retaliation or through the McDonnell Douglas pretext framework.
CareSouth argues Plaintiff fails to establish a prima facie retaliation claim because she does not provide evidence of any protected activity or causal relationship between any such perceived activity and Plaintiff's termination. CareSouth also argues that, even if Plaintiff could establish a prima facie case, she cannot establish the requisite pretext. Def. Mem. 25-28. While her argument could be more clear, Plaintiff never appears to focus on the burden-shifting method of proving retaliation. Rather, Plaintiff provides evidence of what she terms “close in time causation” and the “direct evidence testimony of the decisionmakers, ” arguing such evidence is “sufficient to put this case before the jury.” Pl. Mem. 43. She never otherwise discusses the prongs of a prima facie case.
The court first considers Plaintiff's apparent argument that she has presented sufficient direct evidence to survive summary judgment. “Direct evidence encompasses conduct or statements that both (1) reflect directly the alleged [retaliatory] attitude, and (2) bear directly on the contested employment decision.” Laing v. Fed. Express Corp., 703 F.3d 713, 717 (4th Cir. 2013) (internal quotation marks omitted). However, “in the absence of a clear nexus with the employment decision in question, the materiality of stray or isolated remarks is substantially reduced.” Merritt v. Old Dominion Freight Line, Inc., 601 F.3d 289, 300 (4th Cir. 2010). As noted by United States District Judge Richard Gergel in Walton v. McPherson, No. CV 2:18-1568-RMG, 2020 WL 7258231, at *4 (D.S.C. Dec. 10, 2020), direct evidence “‘is evidence which, if believed, would prove the existence of a fact without any inference or presumptions.'”) (quoting O'Connor v. Consol. Coin Caterers Corp., 56 F.3d 542, 548 (4th Cir. 1995), rev'd on other grounds, 517 U.S. 308 (1996)). Further, in Bickford v. Denmark Technical College, 479 F.Supp.2d 551, 564 (D.S.C. 2007), the court noted that “[d]irect evidence is evidence that the employer announced, admitted, or otherwise indicated that the forbidden consideration was a determining factor” in the employer's challenged action) (internal quotation marks omitted).
Plaintiff's argument regarding evidence “close in time” that is “sufficient to put this case before a jury” seems to refer to the time from the December 3-4, 2018 discussions between Dr. Smith and Plaintiff regarding Plaintiff's possibly working part time or working from home to the decision to terminate that happened “during the week after December 8, 2018.” Pl. Mem. 43. Plaintiff's memorandum is far less clear as to what the precise “direct evidence testimony of the decisionmakers” is. Construing Plaintiff's argument and the proffered evidence in her favor, she arguably refers to Dr. Smith's deposition testimony that he had explored the possibility of part-time work for Plaintiff based at least in part on her lower productivity numbers in October 2018 and that he was aware her productivity had been lower then because of issues with her health and side effects she had experienced from her Nucala treatments. See Smith Dep. 77-78. CEO Ellis also testified that she discussed with Dr. Smith the possibility of Plaintiff's working reduced hours or working from home some because Dr. Smith noted Plaintiff “had been having some difficulties lately[.]” Ellis Dep. 138.
As an initial matter, it is not clear that Dr. Smith's proposal that he presented to Plaintiff would be construed as a request for an accommodation or otherwise be a “protected activity” pursuant to the ADA. Even assuming it were, the evidence presented by Plaintiff is not direct evidence of an intent to discriminate. Evidence that decisionmakers proposed to Plaintiff that she consider a different work arrangement because her reduced productivity that they tied to her physical issues is not the same as Plaintiff requesting an accommodation. In any event, nothing said by Smith or Ellis regarding the proposal to Plaintiff ties directly to her January 2019 termination. See Bickford v. Denmark Tech. Coll., 479 F.Supp.2d 551, 564 (D.S.C. 2007) (“Direct evidence is evidence that the employer announced, admitted, or otherwise indicated that the forbidden consideration was a determining factor” in the employer's challenged action) (internal quotation marks omitted)). Plaintiff's argument requires one to extrapolate and make inferences or presumptions not applicable to the direct-evidence paradigm. Walton v. McPherson, No. CV 2:18-1568-RMG, 2020 WL 7258231, at *4. Nor does other evidence presented by Plaintiff rise to the level of being direct evidence that, but for the improper consideration of Plaintiff's disability, she would not have been terminated in January 2019. Plaintiff has not presented direct evidence of ADA-based retaliation. By way of example, direct evidence may be like that in Robinson v. Brennan, No. CV 3:18-3460-MGL-PJG, 2021 WL 1884041 (D.S.C. Mar. 31, 2021), report and recommendation adopted, No. CV 3:18-3460-MGL, 2021 WL 1863258 (D.S.C. May 10, 2021), in which the court denied summary judgment as to retaliation claim, finding testimony that the decisionmaker voiced displeasure as to the plaintiff's filing of EEO cases and grievances prior to terminating her and that the same decisionmaker said after the fact that he had terminated the plaintiff because he was tired of her filing EEO cases and grievances. Here, the decisionmakers made no such direct admissions or announcements. Further, to the extent Plaintiff seeks to proceed under the prima facie analysis, the undersigned is of the opinion she cannot succeed. To prevail under the McDonnell Douglas framework as to retaliation, Plaintiff must first establish a prima facie case by showing that: (1) she engaged in a protected activity; (2) her employer took an adverse employment action against her; and (3) a causal connection existed between the protected activity and the asserted adverse action. Honor v. Booz-Allen & Hamilton, Inc., 383 F.3d 180, 188 (4th Cir. 2004) (citing Mackey v. Shalala, 360 F.3d 463, 469 (4th Cir. 2004)); Rhoads v. F.D.I.C., 257 F.3d 373, 392 (4th Cir. 2001); Munday v. Waste Mgmt. of N. Am., Inc., 126 F.3d 239, 242 (4th Cir. 1997). Protected activities under the ADA include opposing any act or practice made unlawful by the ADA, and making a charge, testifying, assisting, or participating in an investigation, proceeding, or hearing under the ADA. 42 U.S.C. § 12203(a). A request for an accommodation under the ADA also constitutes a protected activity. See Jacobs, 780 F.3d at 578-79. “Once the plaintiff makes [the prima facie] case, the employer can defend itself by producing ‘evidence of a legitimate, non-discriminatory reason for taking the adverse employment action.'” Id. (quoting Bryant v. Aiken Reg'l Med. Ctrs. Inc., 333 F.3d 536, 543 (4th Cir. 2003)). At that point, the plaintiff has the opportunity to prove that the employer's legitimate, non-discriminatory reason is pretextual. Matvia v. Bald Head Island Mgmt., Inc., 259 F.3d 261, 271 (4th Cir. 2001) (citation omitted).
Even assuming, arguendo, that Plaintiff could establish a prima facie case, she has not provided evidence sufficient to support her burden of showing her termination would not have taken place but for her claimed protected activities. As discussed in more detail in connection with her discrimination claim, CareSouth indicated it terminated Plaintiff based on allegations of bullying levied against her. At the pretext stage, it is CareSouth's reasons that are to be considered. Plaintiff has proffered the affidavit of coworker Kendra Robinson who opines CareSouth was “plotting against” Plaintiff and trying to “weed her out because of health issues.” Robinson offers her opinion that, because Plaintiff opted not to go parttime CareSouth “resorted to other drastic measures of terminating her.” Pl. Mem. 42 (citing Robinson Aff. ¶¶ 2-4, ECF No. 44-5). However, it is not the opinion of Plaintiff, Robinson, or other colleagues that is to be considered at this juncture of the court's analysis. Plaintiff has not demonstrated evidence of pretext sufficient to survive summary judgment. Summary judgment should be granted as to her ADA-based retaliation claim.
B. Plaintiff's state-law-based claims
Plaintiff's Amended Complaint, originally filed in the Court of Common Pleas for Darlington County, includes state-law-based causes of action for Defamation (first cause of action); Workers' Compensation Retaliation in violation of S.C. Code Ann. § 41-1-80 (second cause of action); and Tortious Interference with Prospective Contractual Relations (third cause of action). Am. Compl. ¶¶ 47- 72. When removed, Plaintiff's ADA-based claims gave this court supplemental jurisdiction over the state law claims. 28 U.S.C. § 1367(c)(3). Section 1367(c)(3) of Title 28 provides, in pertinent part, “[t]he 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. . . .” The Fourth Circuit has recognized that “trial courts enjoy wide latitude in determining whether or not to retain jurisdiction over state claims when all federal claims have been extinguished.” Shanaghan v. Cahill, 58 F.3d 106, 110 (4th Cir. 1995) (holding district court did not abuse its discretion in declining to retain jurisdiction over the state law claims). See also, e.g., United Mine Workers of Am. v. Gibbs, 383 U.S. 715, 726-27 (1966); Revene v. Charles Cnty. Comm'rs, 882 F.2d 870, 875 (4th Cir. 1989). In determining whether to retain jurisdiction, courts consider “the convenience and fairness to the parties, existence of any underlying issues of federal policy, comity, and considerations of judicial economy.” Shanaghan, 58 F.3d at 110. Here, the undersigned recommends that the district judge decline to retain supplemental jurisdiction over Plaintiff's state law claims. There are no issues of federal policy underlying the remaining state law claims. In addition, comity favors remand since the remaining claims are quintessential state law questions. In United Mine Workers of America v. Gibbs, 383 U.S. at 726, the Supreme Court cautioned that “[n]eedless decisions of state law should be avoided both as a matter of comity and to promote justice between the parties, by procuring for them a superfooted reading of applicable law . . . . if the federal law claims are dismissed before trial . . . the state claims should be dismissed as well.” Accordingly, should the district judge accept the recommendation with respect to Plaintiff's federal claims, it is recommended that the court decline to exercise jurisdiction over the remaining state law claims. Because Plaintiff filed this matter in state court, it would be appropriate for the remaining claims to be remanded to the Darlington County Court of Common Pleas. “[A] district court has inherent power to dismiss the case or, in cases removed from State court, to remand, provided the conditions set forth in § 1367(c) for declining to exercise supplemental jurisdiction have been met.” Hinson v. Norwest Fin. S.C., Inc., 239 F.3d 611, 617 (4th Cir. 2001); see Nowlin v. Dodson Bros. Exterminating Co., Inc., No. 4:18-CV-0480-SAL, 2020 WL 2306610, at *6 (D.S.C. May 8, 2020) (quoting Hinson and declining to exercise supplemental jurisdiction over state law claims and noting remand of such claims is appropriate in claims originally filed in state court).
IV. Conclusion For the reasons set forth above, the undersigned recommends CareSouth's Motion for Summary Judgment, ECF No. 37, be granted as to all of Plaintiff s federal claims and that the remaining state-law-based claims be remanded to the Darlington County Court of Common Pleas.
IT IS SO RECOMMENDED.
The parties are directed to note the important information in the attached “Notice of Right to File Objections to Report and Recommendation.”