Hollings v. Noland Health Services Inc
MEMORANDUM OPINION. Signed by Chief Judge Sharon Lovelace Blackburn on 3/11/2013. (KAM, )
2013 Mar-11 AM 11:27
U.S. DISTRICT COURT
N.D. OF ALABAMA
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
NOLAND HEALTH SERVICES, INC.,
CASE NO. 2:11-CV-0375-SLB
This case is presently pending before the court on defendant’s Motion for Summary
Judgment. (Doc. 16.)1 Plaintiff Sheila Hollings has sued her former employer, defendant
Noland Health Services, alleging that defendant discriminated against her on the basis of her
race and that it retaliated against her for complaining about discrimination.
consideration of the record, defendant’s submissions, and the relevant law, the court is of the
opinion that defendant’s Motion for Summary Judgment, (doc. 16), is due to be granted.
I. SUMMARY JUDGMENT STANDARD
Pursuant to Fed. R. Civ. P. 56(a), summary judgment is appropriate “if the movant
shows that there is no genuine dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed. R. Civ. P. 56(a); Clark v. Coats & Clark, Inc., 929 F.2d
604, 608 (11th Cir. 1991); see Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970). Once
Reference to a document number, [“Doc. ___”], refers to the number assigned to each
document as it is filed in the court’s record.
the moving party has met its burden, the non-moving party must go beyond the pleadings and
show that there is a genuine issue of fact for trial. See Celotex Corp. v. Catrett, 477 U.S.
317, 324 (1986). A dispute is genuine “if the evidence is such that a reasonable jury could
return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
A party asserting that a fact cannot be or is genuinely disputed must support
the assertion by:
(A) 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
(B) showing that the materials cited do not establish the absence or
presence of a genuine dispute, or that an adverse party cannot produce
admissible evidence to support the fact.
Fed. R. Civ. P. 56(c)(1); see also Clark, 929 F.2d at 608 (“it is never enough simply to state
that the non-moving party cannot meet its burden at trial”).
In deciding a motion for summary judgment, the court’s function is not to “weigh the
evidence and determine the truth of the matter but to determine whether there is a genuine
issue for trial.” Anderson, 477 U.S. at 249. “[C]ourts are required to view the facts and draw
reasonable inferences ‘in the light most favorable to the party opposing the [summary
judgment] motion.’” Scott v. Harris, 550 U.S. 372, 378 (2007)(quoting United States v.
Diebold, Inc., 369 U.S. 654, 655 (1962)(per curiam)). Nevertheless, the non-moving party
“need not be given the benefit of every inference but only of every reasonable inference.”
Graham v. State Farm Mut. Ins. Co., 193 F.3d 1274, 1282 (11th Cir. 1999)(citing Brown v.
City of Clewiston, 848 F.2d 1534, 1540 n.12 (11th Cir. 1988)); see also Scott, 550 U.S. at
380 (“When opposing parties tell two different stories, one of which is blatantly contradicted
by the record, so that no reasonable jury could believe it, a court should not adopt that
version of the facts for purposes of ruling on a motion for summary judgment.”).
Plaintiff did not file any response to defendant’s Motion for Summary Judgment. The
Eleventh Circuit has held, “Where ‘the adverse party does not respond, summary judgment,
if appropriate, shall be entered against the adverse party.’ Thus, summary judgment, even
when unopposed, can only be entered when ‘appropriate.’” United States v. One Piece of
Real Property, 363 F.3d 1099, 1101 (11th Cir. 2004)(quoting Fed. R. Civ. P. 56(e))(emphasis
II. STATEMENT OF FACTS
The following facts are set forth in defendant’s Brief in Support of its Motion for
Summary Judgment. (Doc. 17 at 4-12.)2 Plaintiff did not dispute these facts, which are
supported by the record evidence submitted by defendant. Therefore, these facts are deemed
Citations to page numbers in defendant’s Brief in Support of its Motion for Summary
Judgment, (doc. 17), and its Evidentiary Submission in Support of Motion for Summary
Judgment, (docs. 18-1 to 18-6), except for plaintiff’s deposition, (doc. 18-2), refer to the page
number assigned to the document in the court’s electronic filing system. Citations to
plaintiff’s deposition, (doc. 18-2), refer to the page number in the deposition transcript.
Exhibit A to the Scheduling Order states, “All material facts set forth in the statement
required of the moving party will be deemed to be admitted for summary judgment purposes
1. Noland Health Services (“NHS”), Defendant in the above-styled
action, [footnote] is an Alabama Corporation operating full service senior
living facilities and long-term acute care hospitals across the state. [(Doc. 18-1
[Footnote:] Incorrectly named as Noland Health Services, Inc., in
Plaintiff’s Amended Complaint.
2. Through its Hospital Division, NHS operates long-term acute-care
hospitals in Anniston, Birmingham, Dothan, Montgomery, Shelby County, and
Tuscaloosa, Alabama. [(Id. ¶ 9.)]
3. Noland Hospital Birmingham (“NHB”) is located on the eighth floor
of St. Vincent’s Hospital East. [(Id. ¶ 10.)]
4. Plaintiff worked at NHB as a Registered Nurse (“RN”) on the 7:00
pm - 7:00 am shift on an as-needed, fill-in (“PRN”) basis. [(Doc. 18-2 at 12,
5. As a PRN employee, Plaintiff had a higher rate of pay than full-time
employees. [(Id. at 178.)]
6. Also, by working from 7:00 pm-7:00 am, Plaintiff received a shift
differential of $2-$5 an hour. [(Id. at 99-100.)]
7. Plaintiff never heard derogatory comments about black people in the
workplace. [(Id. at 175.)]
8. Plaintiff never heard a derogatory comment about people who had
filed EEOC Charges or whistleblowers while working for NHS. [(Id. at 176.)]
9. As of November 2009, NHS employees desiring to transfer to
another facility were required to submit a transfer request form, not an
application for employment. [(Id. at 110, 123; doc. 18-1 ¶ 17.)]
unless controverted by the response of the party opposing summary judgment.” (Doc. 9-1
at 4 [emphasis omitted].)
10. The transfer request process was described in NHS’s policies,
readily available to employees. [(Doc. 18-1 ¶ 19; doc. 18-3 at 4-5.)]
11. According to the transfer policy, an employee wishing to transfer
to another facility works with her current supervisor to facilitate a transfer if
she is eligible and qualified. [(Doc. 18-1 ¶ 20 and pp. 10-11.)]
12. Plaintiff did not look for instructions on how to seek a transfer of
her employment to another facility. [(Doc. 18-2 at 104.)]
13. While still employed at NHB, on or about November 3, 2009,
Plaintiff completed a regular, new employee application for a full-time RN
position at Noland Hospital Tuscaloosa (NHT). [(Doc. 18-3 at 6-10.)]
14. Applying as a new employee was not proper under the transfer
policy. [(Doc. 18-1 ¶ 22.)]
15. At this time, NHT’s Nurse Manager was Denise Robertson. As
Nurse Manager, Robertson had primary responsibility for hiring nursing staff
and analyzing staffing needs. [(Id. ¶¶ 16, 30; doc. 18-4 ¶¶ 7-19; doc. 18-5 ¶¶
16. Having received no response to her improper application, Plaintiff
contacted Robertson on or about December 7, 2009, resulting in NHB
providing her a transfer request that day. [(Doc. 18-1 ¶ 23 and p. 13; doc. 18-2
17. Plaintiff completed the transfer request form around December 13,
2009. [(Doc. 18-3 at 11.)]
18. NHB’s Nurse Manager, Melissa Austin, promptly signed Plaintiff’s
transfer request on December 13 or 14, 2009. [(Doc. 18-1 ¶ 15; doc. 18-2 at
17-18; doc. 18-3 at 11.)]
19. Plaintiff’s transfer request was submitted to Robertson, NHT’s
Nurse Manager, on or about December 16, 2009. [(Doc. 18-4 at 7-8, 10.)]
20. In between December 7, 2009, and December 16, 2009, on
December 9, NHT had hired another full-time registered nurse for the 7:00 pm
- 7:00 am shift. [(Doc. 18-1 ¶ 38.)]
21. Robertson reviewed NHT’s patient census and current staff, and
determined that NHT did not need to hire a full-time RN at that time. [(Doc.
18-5 ¶ 13 and p. 7.)]
22. Robertson reached this decision on her own; no one told her not to
hire Hollings. [(Id. ¶¶ 13, 16-17; doc. 18-4 ¶¶ 15-16.)]
23. Robertson’s supervisors did not know Plaintiff’s race or that
Plaintiff had filed an EEOC Charge against NHS. [(Doc. 18-4 ¶¶ 13-14; doc.
18-5 ¶¶ 14-15.)
24. NHT’s Administrator did not even know that Hollings had
completed a transfer request prior to Robertson reaching her decision. [(Doc.
18-5 ¶ 13.)]
25. Robertson, like Plaintiff, is a black female. [(Id. ¶ 8.)]
26. Robertson never interviewed Plaintiff for a position. [(Doc. 18-2
27. Plaintiff and Robertson never discussed pay. [(Id. at 179.)]
28. Plaintiff and Robertson had only discussed NHT’s and NHB’s
relative patient acuity by phone. [(Id. at 122.)]
29. In fact, the only basis Hollings has to believe that there was an
opening around this time is her conversation with Happiness Deason, in which
Deason stated that NHT needed more night shift RNs. [(Id. at 116.)]
30. In 2009 and 2010, Deason was a full-time weekend RN, working
both days and nights over the weekend at NHT. [(Doc. 18-1 ¶ 31; doc. 18-4
¶ 21; doc. 18-5 ¶ 22.)]
31. Deason was not a managerial employee; she did not have hiring
authority at NHT. [(Doc. 18-1 ¶ 32; doc. 18-4 ¶ 22; doc. 18-5 ¶ 23.)]
32. Deason was not responsible for recruiting RNs to NHT. [(Doc. 181 ¶ 33; doc. 18-4 ¶¶ 23-24; doc. 18-5 ¶¶ 24-25.)]
33. Plaintiff signed her first Charge on July 12, 2009. [(Doc. 18-2 at
34. Plaintiff first saw a stuffed animal monkey doll about February 26,
2010, approximately seven months after Plaintiff filed her first Charge with the
35. Plaintiff saw the doll only one time. [(Id. at 142.)]
36. The doll was a slim, brown monkey. [(Id. at 141.)]
37. The doll wore a blue pinafore or shirt. [(Id. at 141, 144.)]
38. When Plaintiff saw the doll, it was sitting on a shelf in Austin’s
office. [(Id. at 141, 143.)]
39. Austin did not draw Plaintiff’s attention to the doll. [(Id. at 165.)]
40. The doll was a promotional item from Ruhof Corporation . . .;
NHS’s Hospital Division’s Director of Infection Control [Beverly Vickery]
received it at a national conference on infection control and then gave it to
Austin. [(Doc. 18-6 ¶¶ 14-15 and p. 14.)]
41. The back of the monkey’s shirt reads, “Cleaning Surgical
Instruments is [Monkey] Serious Business. Ruhof.” [(Id. at p. 14.)]
42. The doll did not disrupt Plaintiff’s work; it did not make her cry.
[(Doc. 18-2 at 189.)]
43. No one told Plaintiff the doll was intended to retaliate against her.
[(Id. at 149-50.)]
44. Plaintiff has no basis to believe the doll was displayed to retaliate
against her for filing an EEOC Charge except for the fact that it was displayed
seven months after she filed the Charge. [(Id. at 137-40.)]
45. Plaintiff believes that Austin may have displayed the doll to
retaliate against Plaintiff for calling NHS’s corporate office to complain about
disciplinary actions in April 2009. [(Id. at 138-40.)]
46. In this call to NHS’s corporate office, Plaintiff did not contend that
Austin took those disciplinary actions because of her race. [(Id. at 139.)]
47. No one ever called Plaintiff a monkey and she has no basis to
believe the monkey was related to her race except for historical use of the term
as a racial pejorative. [(Id. at 146-47.)]
48. No one ever told Plaintiff the monkey doll was intended to depict
black nurses generally. [(Id. at 150.)]
49. Plaintiff subjectively believes that monkeys are “not positive.”
[(Id. at 146, 150 [“It was nothing positive, in my opinion, nobody else’s.”].)]
50. Plaintiff agreed that reasonable people, regardless of race, could
interpret the monkey doll differently. [(Id. at 172-73.)]
51. NHS has policies prohibiting discrimination, harassment, and
retaliation. These policies are communicated to its employees in its Employee
Handbook, among other places. [(Doc. 18-1 ¶ 34 and p. 24; doc. 18-3 at 23.)
52. Plaintiff received this Employee Handbook. [(Doc. 18-2 at 17374.)]
53. However, Plaintiff did not look up the policy. [(Id. at 170, 174.)]
54. Even if she had looked up the policy, Plaintiff would not have
followed the complaint reporting procedure. [(Id. at 170.)]
55. These policies informed Plaintiff how to report complaints of
discrimination, harassment, retaliation, or other suspected violations of the law
or NHS’s policies. [(Doc. 18-1 ¶ 36.)]
56. The policies indicate that this conduct can be reported to the
facility’s Administrator or Vice President of Human Resources. [(Id. ¶ 37.)]
57. Plaintiff’s second Charge of Discrimination to the EEOC, regarding
the monkey doll, was sent to the EEOC by Plaintiff around April 16, 2010.
[(Doc. 18-2 at 102; doc. 18-3 at 2-3.)]
58. Other than this Charge, Plaintiff never complained about the doll.
[(Doc. 18-2 at 168, 170.)]
59. Plaintiff’s only reason for not bringing this concern to the
individuals designated in NHS’s policy to receive complaints of
discrimination, harassment, or retaliation was the she was not a regular worker
and that she could not be troubled to use e-mail or voice[-]mail to
communicate with those who could receive complaints. [(Id. at 170.)]
60. Although it did not find a basis to believe the doll was
discriminatory, harassing, or retaliatory, NHS ordered Austin to remove the
doll. [(Doc. 18-6 ¶¶ 15-16.)]
61. Austin removed the doll. [(Id. ¶ 17; doc. 18-2 at 174-75 [does not
know if doll was removed].)]
(Doc. 17 at 4-12.)
Plaintiff’s claims are based on two alleged adverse employment actions: (1) failure
to transfer her to the Tuscaloosa facility, and (2) hostile work environment. For the reasons
set forth below, defendant’s Motion for Summary Judgment is due to be granted.
A. FAILURE TO TRANSFER
Plaintiff alleges that defendant failed to transfer her to its Tuscaloosa facility based
on her race, African-American, and in retaliation for filing an EEOC charge.
To establish a prima facie case of a failure to promote/transfer, a Title
VII or § 1981 plaintiff must show the following:
1) that she belongs to a protected class; (2) that she was qualified for a
job for which the employer was seeking applicants; 3) that, despite her
qualifications, she was rejected; and 4) that, after her rejection, the
employer continued to seek applicants or filled the position with a
person outside of the plaintiff's protected group.
Gaddis v. Russell Corp., 242 F. Supp. 2d 1123, 1135 (M.D. Ala. 2003)
(Albritton, J.)(citing Walker v. Mortham, 158 F.3d 1177, 1186 (11th Cir.
1998), cert. denied, 528 U.S. 809, 120 S. Ct. 39, 145 L. Ed. 2d 36 (1999);
Williams v. Ala. Indus. Dev. Training, 146 F. Supp. 2d 1214, 1219 (M.D. Ala.
2001)(De Ment, J.)).
Freeman v. Koch Foods of Alabama, 777 F. Supp. 2d 1264, 1282 (M.D. Ala. 2011). A
plaintiff alleging she was wrongfully denied a promotion or transfer must establish, at a
minimum, that the desired position was available. “If there never was a job, it would be
inappropriate to allow suits against the employer for wrongful rejection. Every member of
every protected class would have a right to a job of his or her choice, regardless of whether
or not there is a job to be had.” Rutstein v. Avis Rent-A-Car Systems, Inc., 211 F.3d 1228,
1239 n.19 (11th Cir. 2000); see, e.g., Austin v. Progressive RSC, Inc., 265 Fed. Appx. 836,
842 (11th Cir. 2008)(“First, a CSOA III position did not exist at the Riverview facility, and
the absence of an available position was fatal to Austin’s claim.”); Jones v. Firestone Tire
and Rubber Co., Inc., 977 F.2d 527, 533-34 (11th Cir. 1992)(“Jones did not have a Title VII
claim with regard to market-level jobs because no market-level jobs were available in the
Because plaintiff has not rebutted defendant’s showing that it did not have an
available position at its Tuscaloosa facility, defendant’s Motion for Summary Judgment will
be granted and plaintiff’s claims based on defendant’s failure to transfer her to Tuscaloosa
will be dismissed.
B. HOSTILE WORK ENVIRONMENT
“When the workplace is permeated with discriminatory [or retaliatory] intimidation,
ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the
victim’s employment and create an abusive working environment, Title VII is violated.”
Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75, 78 (1998).
An employer is therefore liable to an employee for a racially hostile work
environment under both statutes if the employee proves that:
(1) [she] belongs to a protected group; (2) [she] was subjected
to unwelcome harassment; (3) the harassment was based on
[her] membership in the protected group; (4) it was severe or
pervasive enough to alter the terms and conditions of
employment and create a hostile or abusive working
environment; and (5) the employer is responsible for that
environment under a theory of either vicarious or direct liability.
Jones v. UPS Ground Freight, 683 F.3d 1283, 1292 (11th Cir. 2012)(quoting Edwards v.
Prime, Inc., 602 F.3d 1276, 1300 (11th Cir. 2010)); see also Tucker v. Benteler Automotive
AL, Inc., Civil Action No. 3:07cv298–WHA, 2009 WL 531875, *13 (M.D. Ala. Mar. 3,
2009)(setting forth the elements of a retaliatory hostile work environment claim).
Plaintiff’s hostile work environment claim is based on a monkey-doll she saw sitting
on a shelf in her supervisor’s office. The Eleventh Circuit has recognized that monkey
imagery and name-calling can be “part of actionable racial harassment.” See Jones, 683 F.3d
at 1297 (quoting Green v. Franklin Nat’l Bank of Minneapolis, 459 F.3d 903, 911 (8th Cir.
2006); citing Goldsmith v. Bagby Elevator Co., 513 F.3d 1261, 1269 (11th Cir. 2008);
Walker v. Thompson, 214 F.3d 615, 626 (5th Cir. 2000), abrogated on other grounds by
Burlington Northern & Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006). “‘Given the history
of racial stereotypes against African-Americans and the prevalent one of African-Americans
as animals or monkeys, it is a reasonable – perhaps even an obvious – conclusion that’ the
use of monkey imagery is intended as a ‘racial insult’ where no benign explanation for the
imagery appears.’” Id. (quoting United States v. Jones, 159 F.3d 969, 977 (6th Cir. 1998);
citing Ellis v. CCA of Tenn. LLC, 650 F.3d 640, 647-48 (7th Cir. 2011)).
However, even assuming the monkey-doll on a shelf in her supervisor’s office was
insulting and disconcerting to plaintiff, the record is undisputed that the one-time encounter
with the monkey-doll was neither sufficiently severe nor pervasive “to alter the terms and
conditions of employment and create a hostile or abusive working environment.” See id. at
1292. Plaintiff saw the monkey-doll one time, and she did not “pay that close attention” to
it. (Doc. 18-2 at 141-42, 143-44.) Also, she testified that the monkey-doll did not disrupt
her work. (Id. at 189.) Because plaintiff did not respond to defendant’s Motion for Summary
Judgment, she has not rebutted defendant’s showing that the one-time encounter with the
monkey-doll was not harassment so severe as to alter the terms and conditions of plaintiff’s
Therefore, defendant’s Motion for Summary Judgment will be granted and plaintiff’s
claims based on harassment will be dismissed.
For the foregoing reasons, the court is of the opinion that there are no material facts
in dispute and defendant is entitled to judgment as a matter of law. An Order granting
defendant’s Motion for Summary Judgment, (doc. 16), will be entered contemporaneously
with this Memorandum Opinion.
DONE, this 11th day of March, 2013.
SHARON LOVELACE BLACKBURN
CHIEF UNITED STATES DISTRICT JUDGE
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?