Lovejoy v. Northway Health & Rehabilitation LLC

Filing 21

MEMORANDUM OPINION AND ORDER: As further set out, 23 , Defendant's Motion for Summary Judgment, is GRANTED as to all claims. Accordingly, Plaintiff's claims are DISMISSED with prejudice. Signed by Judge Abdul K Kallon on 02/08/13. (CVA)

FILED
2013 Feb-08 PM 04:50
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
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LORETTA LOVEJOY,
Plaintiff,
v.
NORTHWAY HEALTH &
REHABILITATION LLC,
Defendant.

Civil Action Number
2:12-cv-01866-AKK

MEMORANDUM OPINION AND ORDER
Plaintiff Loretta Lovejoy seeks damages from her former employer,
Northway Health & Rehabilitation, LLC (“Northway”), for alleged discrimination
in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.
(“Title VII”) and the Age Discrimination in Employment Act of 1967, 42 U.S.C. §
6101 et seq. (“ADEA”).1 Docs. 1 and 4. Defendant seeks summary judgment on

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Although the court noted in its September 6, 2012 opinion, doc. 12, that Lovejoy’s pro
se complaint appeared to allege a race discrimination claim under Title VII, the court also
pointed to Lovejoy’s attached EEOC complaint, which clearly states “I believe I was
discriminated against, because of my age (60) in violation of the Age Discrimination in
Employment Act, and my race, Black, in violation of Title VII of the Civil Rights Act of 1964, as
amended.” Doc. 1 at 9. Since the court must construe pro se complaints liberally, see
Tannenbaum v. United States, 148 F.3d 1262, 1263 (11th Cir. 1998), the court will also address
Lovejoy’s claims under the ADEA – which has an analytical framework identical to that of Title
VII, see e.g.Walker v. NationsBank of Fla. N.A., 53 F.3d 1548, 1556 (11th Cir. 1995).
However, the retaliation claim Lovejoy asserts in her response to Northway’s motion
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all claims, doc. 13, and the motion is fully briefed and ripe for review, docs. 14,
19, 20. Although Lovejoy alleges mistreatment at the hand of her supervisor,
these allegations are insufficient to establish discrimination on the basis of race or
age. Accordingly, the court GRANTS Defendant’s motion.
I. SUMMARY JUDGMENT STANDARD OF REVIEW
Under Rule 56(c)(2) of the Federal Rules of Civil Procedure, summary
judgment is proper “if the pleadings, the discovery and disclosure materials on
file, and any affidavits show that there is no genuine issue as to any material fact
and that the movant is entitled to judgment as a matter of law.” “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 that party
will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322
(1986). The moving party bears the initial burden of proving the absence of a
genuine issue of material fact. Id. at 323. The burden then shifts to the
nonmoving party, who is required to “go beyond the pleadings” to establish that

fails. See doc. 19 at 1. Lovejoy failed to exhaust her administrative remedies with respect to this
claim by alleging retaliation in her EEOC charge. See doc. 1 at 9. Moreover, the court specified
that Lovejoy would be able to add additional claims to her complaint only until September 30,
2012. Doc. 12 at 2 n.1. Since Lovejoy failed to assert this retaliation claim prior to that deadline,
she cannot now assert such claim.
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there is a “genuine issue for trial.” Id. at 324 (citation and internal quotation
marks omitted). A dispute about a material fact 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, 248 (1986).
The court must construe the evidence and all reasonable inferences arising
from it in the light most favorable to the non-moving party. Adickes v. S. H. Kress
& Co., 398 U.S. 144, 157 (1970); see also Anderson, 477 U.S. at 255 (all
justifiable inferences must be drawn in the non-moving party’s favor). Any
factual disputes will be resolved in Plaintiffs’ favor when sufficient competent
evidence supports Plaintiffs’ version of the disputed facts. See Pace v.
Capobianco, 283 F.3d 1275, 1276, 1278 (11th Cir. 2002) (a court is not required
to resolve disputes in the non-moving party’s favor when that party’s version of
events is supported by insufficient evidence). However, “mere conclusions and
unsupported factual allegations are legally insufficient to defeat a summary
judgment motion.” Ellis v. England, 432 F.3d 1321, 1326 (11th Cir. 2005) (per
curiam) (citing Bald Mountain Park, Ltd. v. Oliver, 863 F.2d 1560, 1563 (11th Cir.
1989)). Moreover, “[a] mere ‘scintilla’ of evidence supporting the opposing
party’s position will not suffice; there must be enough of a showing that the jury
could reasonably find for that party.” Walker v. Darby, 911 F.2d 1573, 1577 (11th
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Cir. 1990) (citing Anderson, 477 U.S. at 252)).
II. FACTUAL BACKGROUND
A.

Lovejoy’s Initial Employment at Northway
Lovejoy began working at Northway as evening shift house supervisor in

February 2010. Doc. 15-1 at 20-21. Some time later, Director of Nursing, Seena
Self, asked Lovejoy to apply for an available day shift unit manager position. Id.
at 27. Although another employee, Danielle Weekly, also applied for the position,
Northway awarded Lovejoy the promotion. Id. at 21, 27. Northway later
promoted Weekly when the other unit manager position became available. Id. at
25. Perhaps unhappy with being passed over for the first promotion, Weekly
purportedly began “telling everybody she was the senior unit manager.” Id.
Interestingly, no such position technically exists at Northway. Id. Nonetheless,
Lovejoy believes the informal title refers to the unit manager with seniority and
more experience. Id. Accordingly, Lovejoy asserts that she should have held the
title and complained to Self, who in turn reassured Lovejoy that she was, in fact,
the “senior unit manager.” Id.
B.

Self’s Purported Mistreatment of Lovejoy
As unit manager, Lovejoy had several disputes with Self regarding patient

care during which Self “would yell and scream about or just disagree with
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something that [Lovejoy] would say would be good for [a] patient.” Id. at 32.
Lovejoy also takes issue with Self’s decision to assign another person to help
Lovejoy input reports into the computer on one occasion since the decision
implied that Self purportedly felt Lovejoy was a slow worker. Id. at 35.
Additionally, when Lovejoy came to work in a wheelchair after spraining her
ankle, Self told Lovejoy that she “can’t just come in here in a wheelchair like that”
and that she needed prior permission. Id. at 32. Despite Self’s statement, Lovejoy
was allowed to use the wheelchair for six weeks. Id.
Lovejoy alleges also that Self treated her less favorably than Weekly, a
younger Caucasian female.2 For example, although Lovejoy never received any
disciplinary action while at Northway, she alleges that Self allowed Weekly to sit
in on Lovejoy’s write-ups as a witness. Id. at 45.3 Self also purportedly allowed
Weekly to act like she was in charge during office meetings in Self’s absence by
taking notes in the “green binder.” Id. at 44. Admittedly, Self did not give Weekly
permission to use the green binder and it appears instead that Weekly took the
binder from the administrator’s office on her own. Id.
Finally, Lovejoy alleges that she was mistreated because she never received
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Lovejoy failed to indicate Weekly’s age.

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Lovejoy contends that although Northway policy required a witness to be present, Self
should not have chosen Weekly as the witness. Doc. 15-1 at 45.
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a certificate of appreciation while at Northway, although she is unsure how often
or why these certificates are awarded. Id. at 45.
C.

Lovejoy’s Resignation
Lovejoy complained twice to Sabrina Bowling in the human resources

department that Self “was letting the younger white girl [(Weekly)] do what [she]
used to do.” Id. at 45. Although Bowling informed Lovejoy she would look into
the situation, apparently Bowling never did. Id. When the situation failed to
sufficiently improve, Lovejoy resigned by sliding a notice letter under
administrator Freddy Skelton’s door. Id. at 29, 46. However, Lovejoy asserts that
the letter “was a cry out for help” and that she merely “was trying to tell [her]
story.” Id. at 29. Consequently, when Skelton returned to work the next day and
told Lovejoy he accepted her resignation and that she did not need to work out her
notice, Lovejoy relayed that she did not want to leave but “wanted to talk about
why.” Id. Since Skelton was not available to discuss the issue then, he offered to
talk to his boss, Jerry Lewis, about possibly transferring Lovejoy to a different
facility in the district. Id. at 30. According to Lovejoy, a thirty day window
existed after her resignation during which human resources could have transferred
her to another facility and performed an investigation into her allegations. Id. at
35. However, at a subsequent meeting with Lovejoy and Bowling, Skelton refused
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to allow Lovejoy to revoke her resignation and informed her instead that she
“should have thought about that before [she] wrote [the resignation letter].” Id. at
30. Northway later promoted house supervisor Vaneese Cannon to Lovejoy’s
position as unit manager.4 Id. at 35.
D.

Lovejoy’s EEOC Complaint
On August 15, 2011, Lovejoy filed a formal charge of discrimination with

the Equal Employment Opportunity Commission (“EEOC”) alleging that she “was
subjected to harassment” by Self who “yelled at [Lovejoy], and made comments
about [her] on a weekly basis.” Doc. 1 at 9. The charge further alleges that Self
“began alleging to the Corporate Nurse, Beth, that [Lovejoy] was slow” and
“constantly made reference to younger workers saying young people can do things
older people can’t do.” Id. Lovejoy stated that “[t]he incident that ultimately led
to [her] resignation” was Self commenting that “nurses are stupid” because
Lovejoy felt the comment was in reference to her personally. Id. Finally, Lovejoy
alleges that “[s]imilarly situated younger White employees were not subjected to
the same treatment” and that she “was subjected to a hostile work environment
which constituted a constructive discharge.” Id.

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Lovejoy also asserts that Cannon was younger than her and that Cannon told Lovejoy on
more than one occasion that she was hired as house supervisor but knew that she was going to be
promoted to unit manager within three months. Doc. 15-1 at 35.
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III. ANALYSIS
Lovejoy asserts claims under Title VII and the ADEA for harassment and
discriminatory discharge. See docs. 1 and 4. Northway contends that Lovejoy
cannot establish a prima facie case under either Act. The court discusses this
contention with respect to each claim below.
A.

Title VII Claims
1.

Harassment/Hostile Work Environment

“To establish a hostile work environment claim pursuant to Title VII, a
plaintiff has the burden of proving ‘the workplace is permeated with
discriminatory 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.’” Freeman v. City of Riverdale, 330 Fed. Appx.863, 865
(11th Cir. 2009) (quoting Miller v. Kenworth of Dothan, Inc., 277 F.3d 1269, 1275
(11th Cir. 2002). A plaintiff may satisfy this burden by demonstrating that “(1)
[s]he belongs to a protected group; (2) [s]he has been subject to unwelcome
harassment; (3) the harassment was based on a protected characteristic, such as
race; (4) the harassment was sufficiently severe or pervasive to alter the terms and
conditions of employment and create a[] discriminatory abusive working
environment; and (5) the employer is responsible for such environment under a
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theory of vicarious or direct liability.” Id.
Lovejoy’s hostile work environment claim fails because she did not
demonstrate that the harassment she purportedly suffered “was based on a
protected characteristic” covered by Title VII. The alleged harassment consisted
of Self treating Lovejoy poorly by yelling at her in meetings, making inappropriate
comments such as “nurses are stupid,” and disagreeing with Lovejoy’s patient
treatment decisions. Doc. 15-1 at 32, 35; Doc. 1 at 9. However, there is no
indication that racial animus motivated Self’s actions. In fact, Lovejoy testified
that Self disliked her because Self thought Lovejoy was trying to take her job.
Doc. 15-1 at 28. Unfortunately for Lovejoy, such a basis for harassment is not
protected under Title VII’s anti-discrimination provision. The failure to
established race-based harassment dooms Lovejoy’s prima facie case.
Accordingly, Northway’s motion is GRANTED.
2.

Discriminatory Discharge

Title VII “makes it unlawful for an employer to ‘discriminate against any
individual with respect to his compensation, terms, conditions, or privileges of
employment, because of such individual’s race.’” Brown v. Ala. Dep’t Transp.,
597 F.3d 1160, 1174 (11th Cir. 2010) (quoting 42 U.S.C. § 2000e-2(a)(1)).
Where, as here, a plaintiff relies upon circumstantial evidence to establish
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discriminatory intent by an employer, the court applies the burden-shifting
framework established in McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973). Under this framework, the plaintiff must first create an inference of
discrimination by establishing a prima facie case of discrimination. Burke-Fowler
v. Orange Cnty., Fla., 447 F.3d 1319, 1323 (11th Cir. 2006) (citation omitted). To
establish a prima facie claim of discriminatory discharge, the plaintiff must show
“that [s]he (1) was a member of a protected class, (2) was qualified for the job, (3)
suffered an adverse employment action, and (4) h[er] employer treated similarly
situated employees outside h[er] classification more favorably.” Ashmore v.
Secretary, Dept. of Transp., No.12-10515, 2013 WL 28433, at *3 (11th Cir. Jan. 3,
2013) (citing Holifield v. Reno, 115 F.3d 1555, 1562 (11th Cir. 1997)). If the
plaintiff satisfies this burden, “then the defendant must show a legitimate, nondiscriminatory reason for its employment action. . . . If it does so, then the plaintiff
must prove that the reason provided by the defendant is a pretext for unlawful
discrimination.” Burke-Fowler, 447 F.3d at 1323 (citation omitted). Despite this
burden-shifting framework, “[t]he ultimate burden of persuading the trier of fact
that the defendant intentionally discriminated against the plaintiff remains at all
times with the plaintiff.” Springer v. Convergys Customer Mgmt. Group Inc., 509
F.3d 1344, 1347 (11th Cir. 2007)(citation omitted).
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Northway challenges the adverse employment action prong of Lovejoy’s
prima facie case. Doc. 14. Construing Lovejoy’s allegations liberally since she
proceeds pro se, see Tannenbaum, 148 F.3d at 1263, the court finds that Lovejoy
identifies the following purported adverse employment actions: loss of status as
senior unit manager and constructive discharge. See generally docs. 1 and 4.
Unfortunately for Lovejoy, “senior unit manager” is not a formal position at
Northway. More importantly, when Lovejoy complained, Self notified her that
she was the senior unit manager. Doc.15-1 at 25. To the extent Weekly usurped
Lovejoy’s “status” by asserting that she had senior status over Lovejoy and by
carrying a green binder to staff meetings, this conduct occurred outside the
presence of Self and without her permission or assistance. Id. at 44. Therefore,
Lovejoy cannot establish the adverse action prong of her loss of status claim.
As related to the constructive discharge contention, Northway did not
constructively discharge Lovejoy for purposes of Title VII. A constructive
discharge occurs “when an employee involuntarily resigns in order to escape
intolerable and illegal employment requirements to which he or she is subjected
because of race, color, religion, sex, or national origin[.]” Henson v. City of
Dundee, 682 F.2d 897, 907 (11th Cir. 1982) (internal quotation marks and citation
omitted) (emphasis added). As discussed previously, although Self may have
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harassed Lovejoy, Lovejoy failed to demonstrate that Self did so “because of” her
race rather than because of a perception that Lovejoy posed a threat to Self’s job.
While it is unfortunate that Lovejoy believed she suffered an intolerable work
environment from Self, “Title VII is not a shield against harsh treatment at the
workplace. . . . The employer may [act] . . . for a good reason, a bad reason, a
reason based on erroneous facts, or for no reason at all, so long as its action is not
for a discriminatory reason.” Nix v. WLCY Radio/Rahall Communications, 738
F.2d 1181, 1187 (11th Cir. 1984) (emphasis added), citing Jackson v. City of
Kileen, 654 F.2d 1181, 1186 (5th Cir. 1981); Megill v. Board of Regents, 541 F.2d
1073, 1077 (5th Cir. 1976). Lovejoy failed to establish a discriminatory reason for
the mistreatment and, accordingly, Lovejoy’s prima facie case fails and
Northway’s motion is GRANTED.
B.

ADEA Claims
1.

Harassment/Hostile Work Environment

The standard for establishing a hostile work environment claim under the
ADEA is identical to Title VII’s standard. See Apodaca v. Secretary of Dept. of
Homeland Sec., 161 Fed. Appx. 897, 901. Namely, the plaintiff must show that
“the workplace is permeated with discriminatory intimidation, ridicule, and insult,
that is sufficiently severe or pervasive to alter the conditions of the victim’s
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employment and create an abusive working environment.” Freeman, 330 Fed.
Appx. at 865. In other words, Lovejoy must show that Self’s purported
harassment was “because of” a protected trait. See id. Unfortunately, Lovejoy
failed to establish that Self’s purported harassment was related to Lovejoy’s age.
To support her age-based harassment contention, Lovejoy testified that Self
purportedly implied that Lovejoy was “slow” by assigning someone to help her
input data into a computer and that Self commented that younger people could do
things older people could not. While the latter comment regarding younger people
may create an inference of age-based animus, it is not sufficiently severe or
pervasive to establish a prima facie case of harassment. The “severe or pervasive”
standard requires that the alleged harassing behavior “result in both an
environment that a reasonable person would find hostile or abusive and an
environment that the victim subjectively perceives to be abusive.” Hill v. Emory
Univ., 346 Fed. Appx. 390, 396 (11th Cir. 2009). Since Lovejoy subjectively
feels Self’s behavior meets this standard, the court must evaluate the objective
component by considering “(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.” Id. Even assuming Self made the
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comment regarding younger persons having greater abilities multiple times, the
comment is, at best, “a mere offensive utterance” that would not unreasonably
interfere with an employee’s job performance. Based on these facts, Lovejoy
failed to establish a prima facie case of harassment under the ADEA and
Northway’s motion is GRANTED.
2.

Discriminatory Discharge

The ADEA follows the same burden-shifting framework as Title VII, which
requires a plaintiff who relies upon circumstantial evidence to first establish a
prima facie case of discrimination. Walker, 53 F.3d at 1556. “In an ADEA case
involving discharge, demotion, or failure to hire, a plaintiff may establish a prima
facie case by showing: (1) that he was a member of the protected group of persons
between the ages of forty and seventy; (2) that he was subject to adverse
employment action; (3) that a substantially younger person filled the position that
he sought or from which he was discharged; and (4) that he was qualified to do the
job for which he was rejected.” Turlington v. Atlanta Gas Light Co., 135 F.3d
1428, 1432 (11th Cir. 1998). If the plaintiff establishes these elements, the burden
then shifts to the employer to provide a legitimate, nondiscriminatory reason for
the adverse employment action. Walker, 53 F.3d at 1556. When an employer
meets this burden, the plaintiff must respond by showing that the employer’s
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articulated reason is merely pretext for discrimination. Id.
Again, Lovejoy did not suffer an adverse employment action. See section
A(2), supra. She was not removed from her position as senior unit manager while
at Northway, despite Weekly’s proclamations to the contrary. Additionally, the
evidence fails to indicate that Self mistreated Lovejoy because of her age, as
necessary to establish constructive discharge. While the court may disagree with
Self’s purported conduct, the “ADEA does not guarantee a stress-free working
environment.” Hipp v. Liberty National Life Ins. Co., 252 F.3d 1208, 1233 (11th
Cir. 2001). Accordingly, Lovejoy failed to establish a prima facie case of age
discrimination and Northway’s motion is GRANTED.
IV. CONCLUSION
For the reasons discussed above, the court GRANTS Defendants’ motion as
to all claims. Accordingly, Lovejoy’s claims are DISMISSED with prejudice.
DONE this 8th day of February, 2013.

________________________________
ABDUL K. KALLON
UNITED STATES DISTRICT JUDGE

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