Jenny Evance v. Trumann Health Services, et al

Filing

OPINION FILED - THE COURT: William Jay Riley, Myron H. Bright and Duane Benton AUTHORING JUDGE:William Jay Riley (PUBLISHED) [4046029] [12-2654]

United States Court of Appeals
For the Eighth Circuit
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No. 12-2654
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Jenny Evance
lllllllllllllllllllll Plaintiff - Appellant
v.
Trumann Health Services, LLC, also known as Trumann Health & Rehabilitation
Center; Betty Begley; Gladis Cortinas, originally sued as Gladys Cortinez; Jackie
Kelly; Jacky Holt
lllllllllllllllllllll Defendants - Appellees
Harold McMickle; Dayna Shrout
lllllllllllllllllllll Defendants
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Appeal from United States District Court
for the Eastern District of Arkansas - Jonesboro
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Submitted: April 11, 2013
Filed: June 18, 2013
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Before RILEY, Chief Judge, BRIGHT and BENTON, Circuit Judges.
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RILEY, Chief Judge.

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Jenny Evance was a nurse at Trumann Health and Rehabilitation Center
(Center), a nursing home in Trumann, Arkansas, run by Trumann Health Services,
LLC (Trumann Health). After Trumann Health terminated Evance’s employment, she
sued Trumann Health and several of its employees—Dayna Shrout, Harold
McMickle, Betty Begley, Gladis Cortinas, Jackie Kelly, and Jacky Holt (collectively,
individual defendants, and with Truman Health, defendants)—in federal district
court1 for (1) discrimination based on her gender, religion, and disability, in violation
of due process; the Americans with Disabilities Act of 1990 (ADA), 42 U.S.C.
§ 12101 et seq.; Title VII of the Civil Rights Act of 1964 (Title VII), 42 U.S.C.
§ 2000e et seq.; and the Arkansas Civil Rights Act (ACRA), Ark. Code Ann. § 16123-101 et seq.; and (2) defamation, in violation of Arkansas law.
The district court dismissed some of Evance’s claims under Federal Rule of
Civil Procedure 12(b)(6) for failure to state a claim, and later granted summary
judgment to the defendants on the remaining claims. Evance appeals from the district
court’s grant of summary judgment. We affirm.
I.

BACKGROUND
A.
Facts
Evance was a licensed practical nurse (LPN) at the Center. On July 23, 2010,
while Evance was in the room of an eighty year old male resident, who suffered with
dementia, the resident touched Evance’s breast and attempted to put his hand up her
skirt, and Evance had her hand between the resident’s legs. Evance admits these
events happened, but claims the resident initiated the contact and placed her hand
between his legs.

1

The Honorable James M. Moody, United States District Judge for the Eastern
District of Arkansas.
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Begley and Cortinas, who were certified nursing assistants (CNAs) at the
Center, claimed they saw these events through an exterior window. Trumann
Health’s policy and Arkansas law require employees to report suspected abuse and
neglect of residents. See Ark. Code Ann. § 12-12-1708. Begley and Cortinas
reported their observations to Kelly, another nurse. Kelly conveyed Begley’s and
Cortinas’ reports to Shrout, the Director of Nursing. Shrout, in turn, discussed the
allegations with the Center’s administrator, McMickle. Someone at the Center
reported the allegations to the Arkansas Office of Long-Term Care (OLTC).
As part of an internal investigation, Begley; Cortinas; Kelly; Holt, another
nurse at the Center; and Evance herself submitted affidavits to the OLTC addressing
the allegations. Begley averred Evance and the resident spent “30 minutes or more”
eating alone in the resident’s room, the resident had asked Evance to marry him, and
the resident had put his hand up Begley’s skirt more than once. Begley claimed that,
on July 23, 2010, she observed the resident’s and Evance’s inappropriate touching.
Shrout wrote Cortinas’ affidavit at Cortinas’ request, because Cortinas was
“uncomfortable writing in English as Spanish is her native language.” Cortinas said
she observed inappropriate touching between Evance and the resident and long
periods with the two behind a closed door, and Cortinas “suspected something might
be going on between . . . Evance and [the] resident.”
In her affidavit, Kelly reported Cortinas and Begley told her “they had
witnessed some events through the window of the resident’s room involving” Evance.
Kelly stated she “relayed this on to [her] supervisor[, Shrout,] that she should speak
to” Begley and Cortinas. Kelly asserted that “[o]n the night in question, [Evance] had
been in the resident’s room twice with the door shut, the first time approx[imately]
15-20 mins. Then the resident went to the East [Nursing] Station to ‘visit’” Evance.
Kelly said Evance then took the resident back to his room, telling Kelly she was
going “to tuck him in.” This time, Kelly stated, Evance spent twenty to thirty minutes
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in the room with the door closed. Kelly alleged this was not the first time Evance had
been in the resident’s room with the door closed.
Holt said in her affidavit she once saw Evance “sitting on [the resident’s] bed
with his arm around her and hand in her lap, she had her arms folded on her chest
[and] she did not seemed [sic] alarmed by [Holt] entering the room.” Holt opined
Evance did not “mean to give the wrong impression,” but did not discourage the
resident’s behavior because Evance did not want to hurt his feelings.
Evance, in her affidavit, stated the resident “said inappropriate things” to her
and “touched [Evance] on [her] butt.” She did not discuss the conduct described by
Begley and Cortinas. During her subsequent deposition Evance explained the
resident touched her breast, attempted to put his hand up her skirt, and placed her
hand between his legs.
Based on the reports of improper sexual contact between Evance and the
resident, Shrout and McMickle decided to terminate Evance’s employment, which
McMickle did on August 13, 2010. The Trumann Police Department and the OLTC
conducted investigations into Evance’s conduct on July 23, 2011. After Trumann
Health terminated Evance, the police investigators determined there was insufficient
evidence to prosecute Evance for any crime, and the OLTC concluded allegations of
misconduct were “unfounded.”
B.
Procedural History
Evance sued Trumann Health, Begley, Cortinas, Kelly, and Holt for
discrimination, in violation of due process, Title VII, the ADA, and the ACRA, and
defamation, in violation of Arkansas state law, see Dodson v. Allstate Ins. Co., 231
S.W.3d 711, 716 (Ark. 2006) (listing the elements of a defamation claim). Evance’s
defamation claim was based on her allegation that Begley, Cortinas (speaking through
Shrout), Holt, and Kelly “gave false affidavits, stating that [Evance] initiated the
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sexual contact with the male resident.” In support of her discrimination claims,
Evance asserted the individual defendants conspired to get her fired, in part because
of animus against her based on her gender, religion (Pentecostal), and disability (cleft
palate). She claimed the individual defendants’ “statements and actions . . . should
be imputed to . . . Trumann Health.”
1.
Motion to Dismiss
The individual defendants filed separate motions to dismiss Evance’s claims
pursuant to Federal Rule of Civil Procedure 12(b)(6). On July 29, 2011, the district
court dismissed all of the claims against Shrout and McMickle and some of the claims
against the other individual defendants. The district court dismissed Evance’s due
process, Title VII, ADA, and ACRA claims against all individual defendants, holding
that those statutes did not create individual liability.
The district court next addressed Evance’s defamation claims, dismissing her
slander claims against all of the individual defendants and libel claims against Shrout
and McMickle. See Parkman v. Hastings, 531 S.W.2d 481, 482-83 (Ark. 1976)
(explaining libel involves written publication of defamatory material, whereas slander
involves oral publication). The district court declined to dismiss Evance’s libel
claims against Begley, Cortinas, Kelly, and Holt.
2.
Motion for Summary Judgment
The only claims that survived the district court’s order of dismissal were (1) all
claims against Trumann Health, and (2) Evance’s libel claims against Begley,
Cortinas, Kelly, and Holt. On June 18, 2012, the district court granted the
defendants’ motion for summary judgment on these claims.

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II.

DISCUSSION
Evance appeals the district court’s order granting summary judgment. Evance
asserts in her opening brief that she also is appealing the district court’s July 29, 2011
order of dismissal. Her notice of appeal, however, mentioned only the June 8, 2012
grant of summary judgment, so the scope of our review is similarly limited. See Fed.
R. App. P. 3(c)(1)(B) (requiring the notice of appeal to “designate the judgment,
order, or part thereof being appealed”); USCOC of Greater Mo. v. City of Ferguson,
Mo., 583 F.3d 1035, 1040 (8th Cir. 2009) (“We construe notices of appeal liberally,
but we only have jurisdiction when the appellant’s intent to challenge a particular
order or judgment is apparent and the adverse party will suffer no prejudice if review
is permitted.”).
The defendants are entitled to summary judgment if “there is no genuine
dispute as to any material fact and [they are] entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a). We review the district court’s grant of summary judgment de
novo, viewing the evidence in the light most favorable to Evance. See Hill v. City
of Pine Bluff, Ark., 696 F.3d 709, 711 (8th Cir. 2012).
A.
Discrimination Claims
Evance asserts she was terminated because of her gender, disability, and
religion. Because Evance does not appeal the district court’s dismissal of her
discrimination claims against the individual defendants, the only issue remaining with
regard to Evance’s discrimination claims is whether the district court erred in granting
summary judgment to Trumann Health.
Disparate treatment claims under Title VII, the ADA, and the ACRA are
analyzed in the same manner. See St. Martin v. City of St. Paul, 680 F.3d 1027, 1033
(8th Cir. 2012); McCullough v. Univ. of Ark. for Med. Scis., 559 F.3d 855, 860 (8th
Cir. 2009). “[A]n employee may survive an employer’s motion for summary
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judgment in one of two ways.” Id. The first is to produce “direct evidence of
discrimination,” which is evidence that shows “‘a specific link between the alleged
discriminatory animus and the challenged decision, sufficient to support a finding by
a reasonable fact finder that an illegitimate criterion actually motivated the adverse
employment action.’” Id. (quoting Russell v. City of Kan. City, Mo., 414 F.3d 863,
866 (8th Cir. 2005)). If the employee does not have direct evidence of discrimination,
he or she may “show[] a genuine dispute for trial under the burden-shifting
framework established in McDonnell Douglas Corporation v. Green, 411 U.S. 792,
802-05 (1973).” Id. The district court granted summary judgment on Evance’s
discrimination claims under both the direct evidence and the McDonnell Douglas
burden-shifting analysis.
Evance asserts she felt ostracized by other employees at the Center—including
Shrout, Begley, Cortinas, Kelly, and Holt—because of her Pentecostal religion and
cleft palate. Evance claims her termination itself was direct evidence of
discrimination because the resident initiated the contact and “[n]o other nurse had
ever been criticized for a resident’s behavior.” This is not direct evidence, given that
the record does not contain any evidence of a discriminatory attitude toward Evance,
other than Evance’s own uncorroborated speculation that her religion and disability
made her unpopular. See Beaulieu v. Ludeman, 690 F.3d 1017, 1024 (8th Cir. 2012)
(explaining “‘speculation and conjecture are insufficient to defeat summary
judgment’” (quoting Bloom v. Metro Heart Grp. of St. Louis, Inc., 440 F.3d 1025,
1028 (8th Cir. 2006))).
Because there is no direct evidence of discrimination, we proceed to the
McDonnell Douglas analysis, under which Evance
first must establish a prima facie case of discrimination. If [Evance]
establishes a prima facie case, then the burden of production shifts to the
[Trumann Health] to articulate a legitimate, nondiscriminatory reason
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for discharging [Evance]. If [Trumann Health] meets this burden, then
[Evance] must show that [Trumann Health’s] proffered reason for firing
[her] is a pretext for unlawful discrimination.
McCullough, 559 F.3d at 860.
Assuming the existence of a prima facie case, Trumann Health has articulated
a legitimate, nondiscriminatory reason for firing Evance—administrators received
reports Evance engaged in inappropriate sexual contact with a resident. To establish
that this reason was a pretext for unlawful discrimination, Evance must pass the
“rigorous” test to show that she and more favorably treated employees were
“‘similarly situated in all relevant respects.’” Bone v. G4S Youth Servs., LLC, 686
F.3d 948, 956 (8th Cir. 2012) (quoting Rodgers v. U.S. Bank, N.A., 417 F.3d 845,
853-54 (8th Cir. 2005), abrogated on other grounds by Torgerson v. City of
Rochester, 643 F.3d 1031, 1043, 1058 app. (8th Cir. 2011) (en banc)). “[T]he
individuals used for comparison must have dealt with the same supervisor, have been
subject to the same standards, and engaged in the same conduct without any
mitigating or distinguishing circumstances.” Id. at 956 (quoting Clark v. Runyon,
218 F.3d 915, 918 (8th Cir. 2000)).
Evance claims “[e]very nurse, every CNA, is a comparator. Each one had
experienced [inappropriate] behavior from the resident and/or other elderly male
patients,” but only Evance was accused of misconduct, investigated by police,
reported to the OLTC, and discharged. Evance does not provide any evidence that
any other employees who were not Pentecostal, female, or disabled were accused of
the exact or similar behavior as she was. Evance stated she saw the resident
inappropriately touch Begley and Cortinas. Evance admitted she did not report these
observations to anyone, Begley and Cortinas were not acting inappropriately, and she
did not know whether McMickle or Shrout were aware of any inappropriate behavior
between other nurses and residents, such that they could have taken disciplinary
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action. Begley and Cortinas, as CNAs, also had different job titles and supervisors
than Evance did. Evance has not introduced evidence showing any similarly situated
employee was treated more favorably. See id.
Evance also complains that the investigation was not thorough and Begley and
Cortinas were not credible. We are not “a ‘super-personnel department’ with the
power to second-guess employers’ business decisions.” Russell v. TG Mo. Corp.,
340 F.3d 735, 746 (8th Cir. 2003). Assuming the affidavits contained some
inaccurate information, “it is not unlawful for a company to make employment
decisions based upon erroneous information and evaluations.” Allen v. City of
Pocahontas, Ark., 340 F.3d 551, 558 n.6 (8th Cir. 2003). The district court properly
granted summary judgment on Evance’s discrimination claims against Trumann
Health.
B.
Defamation Claims
The only defamation claims Evance properly appealed are her libel claims
against Begley, Cortinas, Holt, and Kelly. The district court granted summary
judgment on these claims because it determined these defendants were immune from
liability under Ark. Code Ann. § 12-12-1713 and “no evidence . . . suggest[s] that the
[individual defendants’] reports were not made in good faith.”
Evance explains her “defamation claim is based on the false affidavits of
Begley, Cortinas and Shrout, and repeated by Holt and Kelly, which stated [Evance]
initiated the sexual contact with the male resident. Shrout was made a defendant for
writing the statement of Cortinas.” Evance admits the resident touched her breast and
tried to put his hand up her skirt and her hand was between the resident’s legs, but
claims the resident initiated the contact, which she discouraged and rejected. Evance
did not allege in her amended complaint, and does not claim on appeal, any other
statement was defamatory.
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None of the affidavits suggest Evance initiated this contact. Evance stated in
her deposition that Cortinas implied Evance initiated the contact by saying in
Cortinas’ affidavit that Evance was sitting on the resident’s lap. We cannot detect
such an implication, nor does Evance allude to one on appeal. There is no evidence
to support Evance’s claim any of the defendants defamed Evance by falsely stating
Evance “initiated the sexual contact with the male resident.” (Emphasis added).
Although the district court granted summary judgment on a different basis, we
may affirm the district court’s grant of summary judgment “on any grounds supported
by the record.” Moyle v. Anderson, 571 F.3d 814, 817 (8th Cir. 2009). The district
court properly granted summary judgment on Evance’s libel claims against Begley,
Cortinas, Holt, and Kelly. Trumann Health also cannot be liable for defamation
because Evance premised Trumann Health’s liability upon the individual defendants’
liability.
III.

CONCLUSION
We affirm the district court’s grant of summary judgment to the defendants.
This opinion rests on Evance’s failure of proof.
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