Taunton v. Noland Health Care Services, Incorporated
MEMORANDUM OPINION Signed by Judge Karon O Bowdre on 11/7/12. (SAC )
2012 Nov-07 PM 04:17
U.S. DISTRICT COURT
N.D. OF ALABAMA
IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF ALABAMA
NOLAND HEALTH SERVICES, INC.,
This case, alleging race discrimination and retaliation, comes before the court on
Defendant Noland Health Services, Inc.’s Motion for Summary Judgment. (Doc. 18). The
Plaintiff did not respond to the Motion. For the reasons stated below, the court finds that
Defendant’s Motion is due to be GRANTED in its entirety.
STATEMENT OF FACTS
Because Taunton did not object to or in any way dispute the Defendant’s statement of
facts, the court accepts those facts as undisputed pursuant to Rule 56(c & e) of the Federal Rules
of Civil Procedure. See Fed. R. Civ. P. 56(c & e); see also Appendix II - Summary Judgment
Requirements, subsection.D.2.a, found at www.alnd.uscourts.gov.
Taunton’s Work History with NHS
Defendant Noland Health Services, Inc. (“NHS”) is an Alabama corporation operating
full service senior living facilities and long-term acute-care hospitals across the state. Through its
hospital division, NHS operates Noland Hospital Birmingham (“NHB”), located on the eighth
floor of St. Vincent’s Hospital East. NHB cares for very sick patients with complex illnesses.
Many patients have suffered multiple systems failure; many receive intravenous medicine, or
have a central line because their veins are too weak for a traditional IV; and many are on a
ventilator. NHS has policies prohibiting discrimination, harassment, and retaliation, and an
employee handbook communicates those policies to its employees.
In May 2003, NHS hired the Plaintiff, Benita Taunton, an African American, as a
Licensed Practical Nurse. Further, NHS provided tuition assistance to Taunton for her RN
studies and, as a result of her studies, Taunton received a RN license. In May of 2008, NHS
promoted her to RN status and pay. Taunton acknowledged that she “probably read” the
handbook policies and accessed and read NHS’s “Harassment in the Workplace” policy.
During her tenure with NHS from 2003 to 2010, Taunton had a number of supervisors.
The facts presented only provide the race of one of Taunton’s supervisors, Melissa Austin, who
is white; however, Taunton’s Second Amended Complaint states that NHS’s management team
was all white. The person holding the position of Nurse Manager was Taunton’s direct
supervisor as well as the direct supervisor of all nursing staff at NHB, and the Nurse Manager
would report to the Director of Clinical Services (“DCS”), who supervises all clinical care,
including both nursing and therapeutic care. NHS hired Amber Davis as NHB’s Nurse Manager
in October 2008. In November 2008, after promoting Amber Davis from Nurse Manager to DCS,
NHS hired Melissa Austin as NHB’s Nurse Manager. Taunton does not contend that she
experienced discrimination or retaliation prior to the hiring of Davis and Austin in the fall of
2008. Taunton admits that during her tenure with NHS she never heard derogatory language
about blacks nor did she hear any derogatory comments about “whistle-blowers” generally or
those who filed EEOC charges. Laura Wills has been the NHS’s Administrator since May 2010.
The evidence reflects that Taunton has had difficulty getting along with co-workers and
communicating professionally during her time with NHS and during post-termination work with
another employer. Such incidents include the following: (A) in June 2007, Taunton received a
verbal warning for raising her voice during an argument with a co-worker; (B) around September
2008, Gandy counseled Taunton about using a boisterous, loud voice that could be perceived as
disrespectful; (C) also in September 2008, Gandy conducted a peer review of Taunton’s coworkers, and received feedback from them that Taunton had a poor attitude and was not a team
player; (D) Taunton’s annual evaluation at the end of September 2008 reflected that she needed
to improve her behavior and tone to appear less “blunt,” “loud,” and “aggressive”; (E) after
receiving complaints about Taunton from different sources, on or about March 23, 2009, Davis
and Harlan met with Taunton and instructed her to take advantage of NHS’s Employee
Assistance Program (“EAP”); (F) around May 2010, an African American Patient Care
Technician reported that she was scared to work with Taunton, and Taunton’s supervisors
warned Taunton about her demeaning behavior; (G) around December 2011, a subsequent
employer advised Taunton to use its EAP, and Taunton resigned from that job rather than take
advantage of the offered EAP.
Taunton refused to participate in the EAP benefit after the 2009 instruction from NHS
about EAP benefits, but received no negative consequences for that refusal. As a result of that
instruction, Taunton did seek and receive counseling from her pastor, and she characterized that
counseling as helpful.
On September 10, 2009, Taunton received an annual evaluation that stated, among other
things, that her “interactions with others has much improved” and that “Benita is working to
build a constructive and cooperative relationship with other staff members.”
First Charge of Discrimination
Plaintiff filed a Charge of Discrimination with the EEOC on October 28, 2009, asserting
discrimination based on race and religion, and retaliation for protesting of racial and religious
discrimination. In that charge she stated:
I am Black and I was hired by the above named employer September 10,
1999, as an LPN. I was promoted to an RN in May 2008. On March 17,
2009, I had to report to management because some had accused me of
being angry on the job, which [sic] deny. I was told that I had to go to
Employee Assistance Program (EPA). I told my employer that I could talk
with my pastor if I need to talk with someone. I told management that it
was against my religious belief to confide in another source. I told
management that I did not believe in EPA. Since March 23, 2009, and
continuing, I have been subjected to different terms and conditions of
employment. I am one of four Black nurses that are held to more [rigid]
standards than White nurses. Black nurses continued to be assigned to the
most difficult patients. Since other Black nurses have filed charges of
discrimination, management will approach me only out of necessity. As of
October 26, 2009, White nurses continue to receive preferential treatment
in the work place.
I believe that I was discriminated against because of my race, Black, and in
retaliation for protesting my employer trying to force me to go to EPA,
against my religious belief, in violation of Title VII of the Civil Rights Act
of 1964, as amended. My employer as of October 26, 2009, affords White
nurses more flexibility in the performance of their job duties without fear of
(Doc. 20-3, at 82).
In her deposition testimony, Taunton explained what she meant by alleging different
terms and conditions of employment as to black and white workers, pointing to the following
conduct: (1) supervisors’ failure to enforce against white workers the policy against using mobile
phones on the floor; (2) supervisors’ failure to enforce against white workers the rule that staff
cannot wear hoodies on the floor; (3) supervisors’ failure to enforce the rule that nurses cannot be
in the room where charge nurses make patient assignments by allowing in that room three white
nurses, but no black nurses and not all the white nurses working at the time; (4) supervisors’
failure to enforce the policy against profanity in the work place by not disciplining two white
nurses who used profane language on the floor; and (5) supervisors’ failure to discipline one
white nurse for reading on the floor. Taunton acknowledged, however, that she had never
committed those particular infractions, and thus, she had never received discipline on those
The only other conduct that Taunton identified as disparate treatment, as opposed to
retaliation, in either her Second Amended Complaint or her deposition involved (1) an incident
with a patient’s relative, referred to as “S.C.”; and (2) a patient assignment. The incident with
S.C. occurred on April 20, 2010 when S.C., who was black, chest-butted Taunton at work. The
undisputed facts reflect that Nurse Manager Austin detained S.C. in her office soon after the
incident and stationed a security guard outside the office to ensure that S.C. remained there until
arrangements could be made for her safe exit. Taunton went to the doctor, completed a report of
injury, and returned to work upon her release from care on April 27, 2010. DCS Davis advised
Taunton that the patient’s sister would not be allowed to visit the hospital while Taunton was on
duty, and Taunton never saw the sister again. As a result of the chest-butting incident, Taunton
did not lose pay and received no discipline.
The final matter identified as disparate treatment occurred on only one occasion in early
2009 when Taunton was assigned a fifth patient while the LPN on duty only had four patients.
Taunton complained to a Charge Nurse named Amy about having more patients than the LPN.
Taunton explained in her deposition that when she was an LPN under different management, the
LPNs were generally assigned more patients than RNs. The facts presented do not clarify
whether the LPN in question was white. Taunton acknowledged, however, that no policy exists
dictating that an LPN must receive the first patient during a shift or the first additional patient
during a shift, to ensure that the LPNs always have more patients at any given point. Further,
Taunton acknowledged that the LPN in question had been scheduled to receive a fifth patient,
but, for some reason, the patient did not materialize. She also acknowledged that NHB generally
assigns to nurses patients whose rooms are close together, and on that occasion, the fifth patient’s
assigned room was nearby the rooms of Taunton’s other patients. Finally, Taunton
acknowledges the assignment of additional patients did not affect her pay.
Monkey Doll Incident
In February of 2010, as Taunton was passing by the open door to Austin’s office, Taunton
saw a stuffed animal monkey doll on a light fixture in that office. Austin never drew Taunton’s
attention to the doll. The monkey had a light brown face and a dark brown body and wore a
bluish green surgical mask and a bluish green shirt. The back of the shirt reads “Cleaning
Surgical Instruments is Serious Monkey Business. Ruhof” with the word “Monkey” crossed
through. The monkey doll was a promotional item from Ruhof Corporation, which provides
cleaning supplies. NHS’s Director of Infection Control/Hospital Division had received the doll
at a national conference on infection control and gave it to Austin. Taunton knew of a Patient
Care Technician (“PCT”) who had won a similar stuffed animal at an in-service educational
seminar, and the PCT explained to her that the monkey was to promote infection control.
The monkey offended Taunton because, as she testified in her deposition, she understands
that white people often refer to black people as monkeys. She acknowledged, however, that she
has never heard NHS employees make derogatory racial remarks or refer to black people as
monkeys. She further acknowledges that if Austin had brought the monkey to the nurses’ station
and explained that it was a promotional item from Ruhof, she would not have been offended. No
one told her the monkey was meant to depict her or other black employees or that any connection
existed between her EEOC Charge and the monkey’s presence.
Taunton did not report her concern about the monkey doll to Austin or Davis at that time.
Further, she did not report her concern to anyone identified in the employee handbook as the
appropriate person to handle communications about discrimination concerns.
On April 16, 2010, the EEOC received Taunton’s second EEOC Charge referring to the
monkey as a retaliatory act as further described below. When NHS learned about Taunton’s
claim in the second charge, NHS ordered Austin to remove the monkey, although the company
took the position that no basis existed for Taunton’s charge that the doll’s display represented a
discriminative or retaliatory act. Austin complied with the order, and removed the monkey.
Taunton acknowledges that she never saw the monkey after Easter of 2010 and certainly did not
see the monkey towards the end of April 2010 or afterwards.
Second Charge of Discrimination
In Taunton’s April 2010 charge of discrimination, she marked boxes for discrimination
based on race, color, and retaliation, explaining as follows:
This amended EEOC charge relates back to my original charge of racial
discrimination. Subsequent to filing my original EEOC charge, I have been
retaliated against by my Employer and its agents, such as but not limited to
nurse managers and supervisors. This retaliation included but was not limited to
incidents that happened on February 26, 2010. On or about February 26, 2010,
Melissa Austin, nurse manager placed a monkey dressed in a nurse outfit on top
of her desk in clear and plain view of the black nurses at Noland. The monkey
dressed [sic] the nurse’s outfit in the nurse manager’s office is racially offensive
and creates a racially hostile work environment.
In May of 2010, Dr. Ross, one of the doctors under whom Taunton worked, stopped her
in the hall and asked how she was doing. He indicated that he had heard she had communicated
with the EEOC and asked her what had been going on. When she advised him that incidents had
happened such as patient assignments that she felt were discriminatory, Dr. Ross told her that he
would prefer that she discuss her issues with him instead of going to the EEOC. Dr. Ross did not
threaten Taunton or her employment in any way and never spoke to her about her discrimination
The Incident Allegedly Causing Termination
The incident to which NHS points as causing Taunton’s termination occurred on June 9,
2010, when Patient S was assigned to Taunton’s care. Taunton initially assessed Patient S
between 9:30 am and 10:00 a.m. of that day. At that time, Taunton did not note anything
abnormal. Taunton claims she took another blood pressure reading around noon, and, at that
time, the reading was “119 over something.” When Taunton again took Patient S’s blood
pressure at around 1:00 p.m., she measured his blood pressure at 105/45. Diastolic blood pressure
of 45 is abnormally low, and this change in blood pressure represented a significant change in
Patient S’s condition. Taunton did not recheck the reading or perform any other reassessment of
Patient S at that time, and withheld Patient S’s blood pressure medicine because of his low blood
pressure. Taunton did not tell Patient S’s physician, Dr. Ross, that the patient’s blood pressure
had dropped or that she had withheld the medication, although she should have shared this
information with the doctor. Patient S subsequently coded, could not be resuscitated, and was
pronounced dead at 2:02 p.m.
Laura Wills entered Patient S’s room during the code and resuscitation efforts and
investigated Patient S’s deterioration and death. She saw a lot of blood from the patient’s bowels
and noted that the blood had an odor of iron that is distinctive and recognized by most health care
professionals as indicating a gastrointestinal bleed. After interviewing Taunton and without
input from Davis, Austin, or Dr. Ross, Wills recommended to NHS’s Human Resources that
Taunton be terminated for her failure to reassess Patient S when his condition changed and for
the accompanying failure to inform the physician of the change in condition. According to basic
nursing knowledge and NHS policy, a nurse should reassess a patient when a change of condition
occurs. A reassessment permits the nurse to evaluate possible causes for the dip in blood
pressure – including dangerous ones – and assess the risks. Wills received approval and
terminated Plaintiff on June 15, 2010.
Plaintiff filed the instant suit on February 2, 2011.
STANDARD OF LAW
Summary judgment is proper under Rule 56 of the Federal Rules of Civil Procedure “if
the pleadings, depositions, answers to interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any material fact . . . .” Celotex Corp.
v. Catrett, 477 U.S. 317, 322 (1986). “[A] party seeking summary judgment always bears the
initial responsibility of informing the court of the basis for its motion and identifying [the
evidence that demonstrates] the absence of a genuine issue of material fact.” Celotex, 477 U.S. at
323. After the moving party demonstrates an absence of evidence to support the nonmoving
party’s case, the nonmoving party “must do more than simply show that there is some
metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 586 (1986). If the evidence is “merely colorable, or is not significantly probative,
summary judgment may be granted.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50
(1986). Disagreement between the parties is not significant unless the disagreement presents a
“genuine issue of material fact.” Anderson, 477 U.S. 247-48. A dispute of material fact is
genuine if a reasonable jury, applying the relevant law to the evidence presented, could return a
verdict for the nonmoving party. See Wright v. Sanders Lead Co., 2006 WL 905336, *8-9 (M.D.
Ala. 2006) aff’d, 217 Fed. App’x 925 (11th Cir. 2007) (citing Barfield v. Brierton, 883 F.2d 928,
933 (11th Cir. 1989)).
When considering a motion for summary judgment, a court must view the facts “in the
light most favorable to the non-moving party . . . .” Harris, 127 S. Ct. at 1776. The court does not
“weigh the evidence and determine the truth of the matter” but rather, simply focuses on whether
a genuine issue of material fact exists. Anderson, 477 U.S. at 249. Where a reasonable fact finder
may “draw more than one inference from the facts, and if that inference introduces a genuine
issue of material fact, then the court should not grant summary judgment.” Allen v. Bd. of Public
Educ. for Bibb County, 495 F.3d 1306, 1315 (11th Cir. 2007). ‘[T]he plain language of Rule
56(c) mandates the entry of summary judgment, after adequate time for discovery and upon
motion against a party who fails to make a showing sufficient to establish the existence of an
element essential to that party’s case, and on which the party will bear the burden of proof at
trial. In such a situation, there can be ‘no genuine issue of material fact,’ since a complete failure
of proof concerning an essential element of the non-moving party’s case necessarily renders all
other facts immaterial.” Celotex, 477 U.S. at 322-23.
Plaintiff’s Second Amended Complaint contains four counts, alleging as follows: Count
One - race discrimination in working conditions, brought pursuant to Title VII; Count Two - race
discrimination in working conditions, brought pursuant to Section 1981; Count Three- retaliatory
termination and retaliation in the form of Austin’s displaying a monkey dressed in a nurse’s
outfit that was racially offensive to Taunton, both as a result of Taunton’s complaints of race
discrimination, brought pursuant to Title VII; and Count Four - racially hostile work
environment. NHS argues in its Motion that, based on the facts established during discovery and
presented in its brief, no genuine issues of material fact exist, and NHS is entitled to judgment as
a matter of law. As noted previously, Taunton’s failure to address the facts in Defendant’s brief
allows the court to consider those facts as undisputed for purposes of this motion and to grant
summary judgment if those undisputed facts show that NHS is entitled to judgment as a matter of
To prevail on her claims under Title VII, the Plaintiff must demonstrate that her race “was
a motivating factor for any employment practice, even though other factors also motivated the
practice.” 42 U.S.C. § 2000e-2(a) and 41 U.S.C. § 2000e-2(m). Plaintiff may prove that race was
a motivating factor by direct or circumstantial evidence. See Hall v. Alabama Ass’n of School
Bds., 326 F.3d 1157, 1165 (11th Cir. 2003)(per curiam). In the instant case, Plaintiff provided no
direct evidence of racial discrimination. The allocation of proof in cases where a Plaintiff relies
on circumstantial instead of direct evidence of discrimination shifts in accordance with the threestep order of proof established in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1972).
In the first McDonnell Douglas step, Taunton must produce evidence demonstrating that
she can establish a prima facie case, thus giving rise to the presumption that the employer
discriminated against her in the employment action made the basis of the lawsuit. See St. Mary’s
Honor Center v. Hicks, 509 U.S. 502, 506 (1993). In step two, the employer must rebut this
presumption by producing a legitimate, non-discriminatory reason for the employment action. St.
Mary’s Honor Center, 509 U.S. at 509. The employer’s “burden is one of production, not
persuasion; it can involve no credibility assessment.” See Reeves v. Sanderson Plumbing Prod.,
Inc., 530 U.S. 133, 142 (2000) (quoting St. Mary’s Honor Center, 509 U.S. at 509). If the
employer meets its burden of production, then in the final step, Taunton has the burden of
responding with evidence that the employer’s reason was not a true one but rather, was a pretext
for discrimination. See Combs v. Plantation Patterns, 106 F.3d 1519, 1528 (11th Cir. 1997).
Throughout this three-step analysis, the burden to prove discrimination remains upon Taunton’s
shoulders. See Morris v. Emory Clinic, Inc., 402 F.3d 1076, 1081 (11th Cir. 2005) (per curiam).
Counts One & Two: Disparate Treatment Claim
The claims in Counts One and Two of Taunton’s Complaint assert disparate treatment
based on race. Although Count Two is brought pursuant to Section 1981 instead of Title VII,
courts apply the same analytical framework to claims brought under Section 1981 as those
brought under Title VII; therefore, the court will address in tandem the claims in both counts.
See Rice-Lamar v. City of Fort Lauderdale, 232 F.3d 836, 843 n. 11 (11th Cir. 2000) (stating that
courts apply the McDonnell Douglas framework to Section 1981 claims).
To establish Taunton’s prima facie case under the McDonnell Douglas paradigm for this
claim, she must show “(1) she is a member of a protected class; (2) she was subjected to adverse
employment action; (3) her employer treated similarly situated employees outside of her
protected class more favorably than she was treated; and (4) she was qualified to do the job.”
Burke-Fowler v. Orange Cty, 447 F.3d 1319, 1323 (11th Cir. 2006).
NHS argues that, as to all other alleged disparate treatment other than her termination
itself, Taunton has not established the second element because the conduct to which she objects
fails to rise to the level of “adverse employment action.” This court agrees. An adverse action
must represent “a serious and material change in the terms, conditions, or privileges of
employment” and have a tangible adverse effect on the Plaintiff’s employment. Crawford v.
Carroll, 529 F.3d 961, 970-971 (11th Cir. 2008); Davis v. Town of Lake Park, Fla., 245 F.3d
1232, 1239 (11th Cir. 2001). The alleged adverse action must be one that would be judged
materially adverse to a reasonable person under the same circumstances. Davis, 245 F.3d at
The court must then examine the conduct to which Taunton objects to determine whether
that conduct constitutes an adverse action. In her deposition testimony, Taunton specifies the
conduct to which she objects. She acknowledges that most of the conduct to which she objects
(i.e. discipline allegedly applied disparately regarding cell phone use, hoodies, nurses’ presence
during assignments, profanity, reading) was not discipline discriminatorily enforced against her
personally. Taunton did not engage in any of these behaviors and NHS did not discipline her for
them. In other words, most of the conduct she identifies is alleged disparate treatment of others
but not of Taunton herself. Disparate treatment of others does not fall within the definition of an
“adverse action”; it is not “a serious and material change in the terms, conditions, or privileges of
[Taunton’s] employment” and does not have a tangible adverse effect on her employment.
Crawford, 529 F.3d at 970-971; Davis, 245 F.3d at 1239; see also Entrekin v. City of Panama
City, 376 Fed. Appx. 987, 995 (11th Cir. 2010) (“[The employer’s] failure to take action against
other individuals does not constitute an adverse employment action, because [plaintiff] herself
suffered no harm.”). Taunton’s theories of favorable racial treatment based on behaviors in
which she did not engage or on policies for which she received no discipline cannot constitute an
adverse employment action as to Taunton. Therefore, the court finds that to the extent Taunton
relies on conduct that represents disparate treatment of others to establish an adverse action, she
fails to establish that element of her prima facie case.
Taunton identifies only three actions that represented alleged treatment of her personally.
The first involved action by a third party, a patient’s sister, and the undisputed facts reflect no
action of NHS that falls within the meaning of adverse employment action. The second action
was based on Taunton’s assertion that on a single occasion in March 2009, she received an
additional patient that she believes should have been assigned to an LPN, because the LPN had
only four patients and the assignment raised Taunton’s patient load to five. The facts presented
to the court indicate that the assignment schedule called for both Taunton and the LPN to receive
five patients but one of the LPN’s patients did not materialize. As Taunton acknowledged in her
deposition testimony, no policy exists dictating that an LPN must receive the first patient during
a shift or the first additional patient during a shift, and Taunton has not presented any facts
establishing that she lost pay or benefits or prestige or otherwise establishing that this one
assignment during one shift falls within the definition of “adverse employment action.” The
third action was her termination. Therefore, the court finds that with the exception of her
termination, none of the actions identified in Taunton’s Second Amended Complaint or
deposition testimony constitutes an adverse employment action, and Taunton has failed to
establish that element of her prima facie case.
As an alternative ruling on all claims of racial discrimination except her termination, the
court also finds that Taunton has failed to establish the third element of her prima facie case,
because Taunton has presented no facts tying the patient assignment to her race. Taunton has not
presented facts at summary judgment establishing the race of the LPN in question. Further, even
if she had established that the LPN were white, the facts presented reflect that the patient
assignment schedule provided for both the LPN and Taunton to receive five patients, but the
LPN’s fifth patient did not materialize. Thus, Taunton has not established that disparate
treatment based on race existed. The court notes that nondiscriminatory reasons for the
assignment exist, including the most obvious one: that the extra patient’s room was nearby the
rooms of Taunton’s assigned patients, and that, as Taunton also acknowledged, NHB has a
general practice of making such assignments to nurses whose patients are close together.
Without evidence linking the assignment to race, the evidence presented suggests that this
decision was a lawful exercise of Defendant’s business judgment. See Davis, 245 F.3d 1232,
1244 (“Work assignment claims strike at the very heart of an employer’s business judgement and
expertise because they challenge an employer’s ability to allocate its assets . . . .”). As the
Eleventh Circuit has repeatedly acknowledged, courts are not in the business of serving as “‘a
super-personnel department’” to re-examine the employer’s business judgments and
second-guess whether they were fair and appropriate. See Wilson v. B/E Aerospace, Inc., 376
F.3d 1079, 1092 (11th Cir. 2004) (quoting Lee v. GTE Fla, Inc., 226 F.3d 1249, 1254 (11th Cir.
2001). Neither are “Title VII’s remedial mechanisms designed to address petty slights and minor
annoyances” such as having to put up with one more patient on one occasion than the LPN down
the hall. See Burlington, 548 U.S. at 68 (stating that “[n]ormally petty slights, minor annoyances,
and simple lack of good manners” are not employer actions that are prohibited). Rather, the
court’s role at this juncture is to determine whether Taunton has presented facts establishing her
prima facie case.
As to Taunton’s claims for racial discrimination regarding her termination, the court
notes that although she refers to her termination in Count One, she describes it as a retaliatory
act. Because Taunton did not respond to the motion for summary judgment, the court had no
brief from her to clarify whether she intended to include her termination as part of her claims in
Count One. To the extent, if at all, that Taunton intended to do so, the court finds that Taunton
has failed to establish evidence supporting element three because she has produced no evidence
of a similarly situated white employee who was not terminated. She provided no such evidence
in her deposition testimony and she provided no response to the motion for summary judgment,
failing to file evidence opposing summary judgment. As to all claims of racial discrimination in
Counts One and Two, the court finds that Taunton has not established the third element of her
prima facie case, and thus, the motion for summary judgment is due to be granted.
In sum, for all of these reasons, summary judgment is due to be GRANTED on the
disparate treatment claims in Counts One and Two.
Count Three: Retaliation
In Count III, Taunton asserts that NHS retaliated against her in two ways: (1) by
displaying a monkey doll that offended her; and (2) by terminating her employment. The
Eleventh Circuit has explained that “[a] prima facie case of retaliation contains three elements:
first, the plaintiff engaged in statutorily protected conduct; second, the plaintiff suffered an
adverse employment action; and finally, the adverse action was causally related to the protected
expression.” Williams v. Motorola, Inc., 303 F.3d 1284, 1291 (11th Cir. 2002). The court agrees
with NHS that summary judgment is due to be granted on her retaliation claims for the reasons
A. Monkey Doll
As to Taunton’s assertion that Austin’s display of a monkey doll in her office constituted
retaliation for Taunton’s filing an EEOC charge, NHS argues that Taunton has failed to establish
the second and third elements of her prima facie case; she has not presented evidence that the
display was an adverse action and that, in any event, a causal connection existed between the
charge and the display. The court is not convinced that Taunton has presented facts
demonstrating that any link existed between race and the monkey display. The doll was located
in Austin’s office, and neither explicitly targeted towards Taunton nor said to represent her. The
evidence reflects that the monkey was dressed in medical gear, but Austin, the owner of the
monkey doll, is white and wears medical gear. The evidence further reflects that the monkey was
simply a promotional doll for medical cleaning supplies that someone gave Austin.
Taunton bases her claim that the monkey doll is related to her race solely upon historical
derogatory references to black as “monkeys,” although she admits that she never experienced any
racially derogatory comments at NHS, that NHS employees did not refer to black people as
monkeys, and that no one at NHS told her the monkey doll was meant to depict her or other black
nurses. Significantly, Taunton acknowledges in her deposition that if Austin had brought the
monkey to the nurses’ station and explained that it was a promotional doll, she would not have
The court recognizes that Taunton was offended by the monkey because she speculated
that Austin displayed it to insult her. However, under the Eleventh Circuit’s definition of Title
VII retaliation, Taunton must do more than prove that she was subjected to actions that she
subjectively considered offensive. Rather, as the Supreme Court explained in Burlington N. &
Santa Fe Ry. Co. v. White, 548 U.S. 53, 56-57 (2006), a plaintiff must present facts showing that
the defendant committed actions that are “harmful to the point they could well dissuade a
reasonable worker from making or supporting a charge of discrimination.” The court finds that,
under the circumstances presented, displaying a monkey doll promoting medical cleaning
equipment in a supervisor’s office does not meet that standard; that action would not dissuade a
reasonable worker from filing an EEOC charge, and indeed, even Taunton herself acknowledged
that if she had understood that the monkey was a promotional doll, she herself would not have
been offended. The court finds that Taunton has not met her prima facie case on this claim.
Even assuming arguendo that Taunton could establish that the display would somehow
dissuade a reasonable worker from making an EEOC charge, Taunton fails to establish that a
causal connection existed between her filing a Charge of Discrimination in October of 2009 and
the display of the monkey doll in February of 2010. This four month temporal connection,
without more, cannot create an inference of causation sufficient to establish a prima facie case of
retaliation. See Clark County Sch. Dist. v. Breeden, 532 U.S. 268, 273 (2001) (stating that the
temporal proximity must be “very close” to establish evidence of causality and citing Richmond
v. ONEOK, Inc., 120 F.3d 205, 209 (10 Cir. 2001) (holding 3-month period insufficient) and
Hughes v. Derwinski, 967 F.2d 1168, 1174-1175 (7th Cir. 1992) (holding 4-month period
insufficient)). For all the above reasons, the court finds that Taunton has failed to establish her
prima facie claim as to the monkey claim.
B. Retaliatory Termination
Taunton’s second retaliation claim in Count Three is based upon her termination. In its
brief, NHS assumes arguendo that Taunton can establish a prima facie case of retaliatory
termination. However, NHS has come forward with a legitimate non-retaliatory reason for the
discharge – her failure to reassess Patient S after his condition changed significantly – as required
under the familiar burden-shifting framework. See Olmsted v. Taco Bell Corp., 141 F.3d 1457,
1460 (11th Cir. 1998)). Accordingly, to avoid summary judgment, Taunton must “meet [the
employer’s proffered legitimate reason] head on and rebut it, and the employee cannot succeed
by simply quarreling with the wisdom of that reason.” Chapman v. AI Transport, 229 F.3d 1012,
1030 (11th Cir. 2000).
In the instant case, Taunton filed no response to the motion for summary judgment, and
thus, the court does not have the benefit of a brief pointing it to potential evidence of pretext. In
her deposition, Taunton presented a stray remark by Dr. Ross, who was not a decision maker in
her termination. The undisputed evidence reflects, however, that Wills, a neutral decision maker,
conducted a thorough investigation and found that Taunton had failed to reassess Patient S’s
condition when she should have done so. Of course, Patient S subsequently died, and NHS
terminated Taunton and gave as a reason her failure to provide proper care to Patient S. Thus,
NHS presented a legitimate non-retaliatory business reason for terminating Taunton’s
To the extent that Taunton’s deposition testimony about the stray remark could be said to
point to Dr. Ross’s remark as evidence that the reason for her termination was pretextual, the
court finds that Taunton has failed to meet the proffered reason “head-on” and rebut it. For
example, she has presented no evidence of a similarly situated white comparator who committed
the same or similar conduct but was not terminated, or evidence that Dr. Ross had input into the
termination decision. Therefore, summary judgment is due to be GRANTED on the retaliatory
For all of the above reasons, the court finds that summary judgment is due to be granted
on all claims of retaliation set forth in Count Three.
Count Four: Racially Hostile Work Environment Claim
As to the claim in Count Four asserting a racially hostile work environment, Taunton has
failed to establish her prima facie case. To establish such a claim, a plaintiff must show: “(1) that
[she] belongs to a protected group; (2) that [she] has been subject to unwelcome harassment; (3)
that the harassment must have been based on a protected characteristic of the employee . . .; (4)
that the harassment was sufficiently severe or pervasive to alter the terms and conditions of
employment and create a discriminatorily abusive working environment; and (5) that the
employer is responsible for such environment under either a theory of vicarious or of direct
liability.” Miller v. Kenworth of Dothan, Inc., 277 F.3d 1269, 1275 (11th Cir. 2002). For the
reasons explained below, Taunton has failed to establish that any alleged harassment was
sufficiently severe or pervasive to alter the terms and conditions of her employment. Further, the
court finds that the evidence demonstrates NHS took timely and appropriate corrective action
when it was notified of the offending conduct.
NHS argues that Taunton has failed to establish that the conduct she complains of – the
display of a stuffed monkey doll – is severe or pervasive for the purposes of her claim. The
following factors are considered in evaluating whether conduct is severe or pervasive: “(1) the
frequency of the conduct; (2) the severity of the conduct; (3) whether the conduct is physically
threatening or humiliating, or a mere offensive utterance; and (4) whether the conduct
unreasonably interferes with the employee’s job performance.” Miller, 277 F.3d at 1275 (11th
Cir. 2002). Further, the complained of conduct must be both subjectively and objectively hostile.
Reeves v. C.H. Robinson Worldwide, Inc., 594 F.3d 798, 809 (11th Cir. 2010); see Harrington v.
Disney Reg’l Entm’t, Inc., 276 Fed. Appx. 863, 876 (11th Cir. 2007) (finding fact that plaintiff’s
black co-workers were occasionally referred to as “monkeys”and she was described as “ghetto”
was not sufficient to establish a hostile work environment); Quarles v. Con-Way Freight, Inc.,
2008 WL 1994916 at *8 (M.D. Fla. 2008) (finding presence of a stuffed animal gorilla, who
appeared to have been named in reference to a black supervisor, and a noose in the workplace,
where the incidents were not directed at the plaintiff, was not sufficiently severe and pervasive);
Coley v. Fortson-Peek Co., 2011 WL 4899752, **9, 27 (M.D. Ga. 2011) (finding that no hostile
environment existed where co-worker “showed [plaintiff] a picture on his phone of a monkey
and told [plaintiff] that he looked like a monkey.”).
In this case, the monkey doll was not physically threatening; it was located inside a
supervisor’s office and neither the supervisor nor any other employee called Taunton’s attention
to it; it was the only item or potential symbol of its kind in the workplace about which Taunton
complains; it was not accompanied by racial slurs or other overt expressions of racial animus; no
NHS supervisor or manager expressed or implied a connection between the doll and Taunton or
other black workers; and the doll’s clothing both reflected its function as a promotional item and
explained the connection between the monkey and the company promoted. Under these
circumstances, no reasonable jury could find the work environment at NHS to be objectively
hostile nor could it find the conduct to be severe and pervasive. Accordingly, the court finds that
the motion for summary judgment is due to be GRANTED as to the claim in Count Four for
racially hostile work environment.
As an alternative ruling, the court finds that even if the presence of the stuffed monkey
doll somehow could be perceived as severe or pervasive conduct and created a racially hostile
work environment, the court finds sufficient evidence to demonstrate that NHS took timely and
appropriate corrective action to establish the Faragher/Ellerth defense. The Faragher/Ellerth
defense “‘comprises two necessary elements: (a) that the employer exercised reasonable care to
prevent and correct promptly any [racially] harassing behavior, and (b) that the plaintiff
employee unreasonably failed to take advantage of any preventive or corrective opportunities
provided by the employer. . . .’” Walton v. Johnson & Johnson Serv., Inc., 347 F.3d 1272, 1286
(11th Cir. 2003), cert. denied, 124 S. Ct. 1714 (2004) (quoting one of the two cases establishing
the defense, Faragher v. City of Boca Raton, 524 U.S. 775, 807 (1998)).
An employer satisfies the first part of the Faragher defense through its dissemination and
promulgation of an anti-harassment policy, thereby providing a mechanism to encourage
employees to report harassment and providing alternative routes to direct those reports. Walton,
347 F.3d at 1286. NHS has policies prohibiting discrimination, harassment and retaliation that
are communicated to its employees in its Employee Handbook, among other places. Taunton
received these policies, which explain that this conduct can be reported to the facility’s
Administrator or Vice President of Human Resources.
The second part of the Faragher defense is satisfied if the employee unreasonably fails to
take advantage of any preventive or corrective opportunities provided by the employer. Walton,
347 F.3d at 1286. “An employee’s failure to take advantage of preventive or corrective measures
can take two forms – not using the procedures in place to promptly report any harassment and not
taking advantage of any reasonable corrective measures the employer offers after the harassment
is reported.” Baldwin v. Blue Cross/Blue Shield, 480 F.3d 1287, 1306 (11th Cir. 2007).
Before filing her second EEOC Charge, Taunton took no action to complain about the
doll, or to communicate with Austin about how the doll offended her. She did not directly or
indirectly request that Austin remove it prior to bringing the EEOC Charge. Taunton testified
that her only reason for not bringing this complaint to the individuals designated in NHS’s policy
was because she planned to bring an EEOC Charge. However, filing an EEOC Charge does not
substitute for using the employer’s procedures to remedy the offensive conduct. Even if
Taunton’s second EEOC Charge were considered a proper and timely “report” for the purposes
of the Faragher-Ellerth defense, then the second prong of that defense is satisfied when the
employer takes appropriate corrective action. See Watson v. Blue Circle, 324 F.3d 1252, 1261
(11th Cir. 2003). Although NHS did not find that the doll was discriminatory, harassing, or
retaliatory, upon learning of her EEOC Charge that Taunton so perceived it, NHS ordered Austin
to remove it from the workplace, which she did. The EEOC received Taunton’s Charge on April
16, 2010, and Taunton acknowledges that she never saw the monkey after Easter of 2010 and that
it was definitely gone by the end of April. Those facts establish that NHS removed the monkey
promptly after it received notice of the EEOC Charge.
Therefore, because Taunton has failed to establish a prima facie case of a hostile work
environment claim, and alternatively because Defendant has established a Faragher/Ellerth
defense, summary judgment is due to be GRANTED on the hostile work environment claim.
In summary, the court finds that summary judgment is due to be GRANTED as to all
Taunton’s claims. The court will enter a separate order consistent with this Memorandum
Dated this 7th day of November, 2012.
KARON OWEN BOWDRE
UNITED STATES DISTRICT JUDGE
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