Peterson v. Board of Trustees of The University of Alabama, The

Filing 50

MEMORANDUM OPINION, as set out, re the Foundations Motion for Summary Judgment 22 . Signed by Judge Sharon Lovelace Blackburn on 9/30/14. (CTS, )

FILED
2014 Sep-30 PM 05:40
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
SARAH M. PETERSON,
Plaintiff,
vs.
UNIVERSITY OF ALABAMA
HEALTH SERVICES FOUNDATION,
P.C.,
Defendant.

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CASE NO. 2:13-CV-0605-SLB

MEMORANDUM OPINION
This case is presently pending before the court on defendant’s Motion for Summary
Judgment. (Doc. 22.)1 Plaintiff Sarah M. Peterson has sued her former employer, defendant
University of Alabama Health Services Foundation [hereinafter “the Foundation”], alleging
that the Foundation discriminated against her on the basis of her race and that it retaliated
against her for complaining about discrimination in violation of federal law. Peterson also
alleges she was terminated in violation of Alabama law because she had filed a claim for
worker’s compensation benefits. Upon consideration of the record, the submissions of the
parties, the arguments of counsel, and the relevant law, the court is of the opinion that the
Foundation’s Motion for Summary Judgment, (doc. 22), is due to be granted.

1

Reference to a document number, [“Doc. ___”], refers to the number assigned to each
document as it is filed in the court’s record. Page numbers for documents refer to the page
number assigned by the court’s CM/ECF system, except that page numbers for deposition
transcripts refer to page numbers of the original deposition transcript.

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
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,
248 (1986).
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
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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.”).
II. STATEMENT OF FACTS
A.
PETERSON’S EMPLOYMENT WITH THE FOUNDATION BEFORE
NOVEMBER 2011.
In 1997 Peterson, African-American, began working for the Foundation as a
Receptionist/Assistant at the Substance Abuse Clinic. (Doc. 24-1 at 22, 24-25; doc. 39-3 ¶
1.) After the Substance Abuse Clinic closed, Peterson held various positions with the
Foundation, before transferring to the Dermatology Clinic in January 2011 as a Patient
Encounter Specialist [hereinafter “PES”]. (Doc. 24-1 at 27, 29-31, 36, 67; doc. 33 ¶ 2.) She
worked primarily at the check-out desk performing clerical and customer-service
responsibilities, such as documenting charges, accepting payments, verifying the patient’s
identity, answering the phone, and scheduling appointments. (Doc. 33 ¶¶ 2, 3.) She
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received an excellent evaluation in October 2011 from her then-supervisor, Kimberley
Turnley, African-American. (See doc. 27 at 2-5; doc. 25 at 100.)
On November 15, 2011, Turnley met with Peterson and her coworker, Heather
Moody, white PES also assigned to the check-out desk, to discuss “teamwork” and
“communications.” (See doc. 24-1 at 64; doc. 25 at 102, 104; doc. 27 at 37.) Shortly
thereafter, Erika Sanso, white RN Practice Manager, replaced Turnley as Peterson’s
supervisor. (Doc. 24-1 at 37; doc. 25 at 100; doc. 33 ¶ 2.) The Practice Manager supervises
the 34-36 employees in the Dermatology Clinic. (Doc. 25 at 22.)
B. PETERSON’S JANUARY 19, 2012, INJURY
On January 19, 2012, Peterson fell from her chair at work and suffered a rotator cuff
injury to her left shoulder. (Doc. 24-1 at 107, 110, 112; doc. 39-3 ¶ 30.) She notified
Loretta Nicholson, an employee in the medical records area, who called her supervisor, Betty
Franks, and Franks sent Peterson to UAB Highlands Hospital for evaluation that day. (Doc.
24-1 at 66, 108-09.) Peterson subsequently attended doctor visits and physical therapy
sessions, for which she received worker’s compensation benefits and coverage. (Id. at
113-17.) She testified, “There were times in 2012 that I had to be absent or leave early to go
to doctor[’s] appointments or physical therapy.” (Doc. 39-3 ¶ 31.)
C. PETERSON’S JANUARY 2012 COMPLAINT TO PARDUE
On January 30, 2012, Peterson emailed Towana Pardue, white Chief Nursing Officer
and Sanso’s supervisor. (Doc. 29 at 7.) She complained:

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[W]hen I go to Erika [Sanso] about a situation she is very short and rude. I
was under the impression that all employee[s were] to be treated fair[ly].
Today a situation came up with a patient that need[ed] authorization for an
appointment on [January 31, 2011.] I asked [Sanso] would she call Viva and
let me know whether I need[ed] to reschedule the appointment[;] she never got
back to me[.] [S]o I call[ed] her and she told me . . . that [had] been taken care
of as if I was interrupting her. I am only trying to do my job, but when you are
put in a hostile environment it become[s] hard to be effective.
(Id.; see also doc. 24-1 at 65, 68-69, 73-74.) Peterson testified that Sanso had said, “Sarah,
it’s been taken care of,” and that she believed Sanso was “rude” based on the tone of her
voice. (Doc. 24-1 at 70-71.) She also complained to Pardue that Sanso had not offered to
help her that day when she was working the check-out desk alone. (Doc. 29 at 7.)
Peterson met with Pardue several days later, at which time she told Pardue that Sanso
treated white employees better than African-American employees based on the fact Sanso
was friendlier to white employees and she was more concerned about them.2 (Id. at 75,
77-79.) She also testified that Pardue had said she would talk to Sanso; however, Peterson
did not know if Pardue actually had talked to Sanso. (Id. at 77, 80; doc. 24-2 at 259.) Pardue
testified that she did not talk to Sanso about Peterson’s email and that she “never told anyone
that Ms. Peterson complained that Ms. Sanso treated white employees better than she treated
black employees.” (Doc. 32 ¶¶ 5, 6.)

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Pardue testified that she did not recall meeting with Peterson regarding this email and
that Peterson never complained to her that Sanso was discriminating against AfricanAmerican employees. (Doc. 32 ¶¶ 3-4.)
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D. JANUARY 2012 TO MAY 2012 PERFORMANCE ISSUES AND DISCIPLINE
1. Patient Complaints
According to Sanso, she received a number of complaints about Peterson’s behavior
and job performance between January and May 2012. (Doc. 25 at 72-73, 79-80, 88-93, 9596.) Sanso testified that the Dermatology Clinic rarely got negative feedback from patients,
but, in the first few months of 2012, she had received two patient comment cards
complaining about customer service at the check-out desk. (Doc. 33 ¶ 7.)
In January 2012 an unidentified patient rated the “black lady at checkout” as “poor”
with regard to courtesy and sensitivity. (Doc. 28 at 12.) The patient indicated that his or her
likelihood of returning or recommending the clinic was “very poor.” (Id.) Peterson was the
only “black lady” assigned primarily to the check-out desk during this time period. (Doc. 25
at 163.) However, during this time, Melanie Jones, an African-American PES, occasionally
covered for check-out personnel while they were on breaks. (Doc. 39-3 ¶ 7.)
In March 2012, Sanso received another anonymous patient comment card, which
stated that his or her visit could have been better with “faster checkout” and that the courtesy
of the check-out desk was only “fair.” (Doc. 28 at 13.) This comment card did not identify
or describe Peterson as the PES involved with the patient’s check-out, (see id.); therefore,
it could have referred to any PES.

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2. Coworker Complaints
One of Peterson’s coworkers, Aubrey Gamble, the white PES primarily assigned to
the check-out desk with Peterson after Moody took a maternity leave, reported to Sanso that
she was concerned about Peterson’s inappropriate interactions with patients. (Doc. 24-1 at
63-64; doc. 25 at 73-74.) According to Sanso, Gamble complained that Peterson “doesn’t
interact well with patients,” and Sanso asked Gamble to provide her with specific incidents.
(Doc. 25 at 74.) Thereafter, in April 2012, Gamble emailed Sanso about two incidents of
poor customer service: (1) Peterson had interrupted an elderly patient, and (2) she had not
ended a personal telephone call to help a waiting patient. (Id. at 72-73, 77-78; doc. 27 at
29.)
Cheryl Goodwin, white Team Lead, talked to Sanso about Peterson’s rude reaction
when asked a question about charge tickets or entries, including exhibiting negative body
language. (Doc. 25 at 80; doc. 33 ¶ 8.) Goodwin reported to Sanso that, although Peterson
ultimately would answer her questions, she “acted as though she did not want to answer and
would act rudely.” (Doc. 25 at 80) On April 19, 2012, Goodwin reported to Sanso that
Peterson appeared to be working unnecessary overtime; she told Sanso that she had seen
Peterson at work at 5:25 p.m. and that all the patients had left the clinic by 4:30 p.m. or 4:45
p.m. (See doc. 27 at 31.) Peterson generally disputes that she worked unnecessary overtime.
(See doc. 39-3 ¶ 8 [“I did not work unnecessary overtime. I communicated with Ms. Sanso
if there was a need for me to stay late or come in early. There was always a lot to do after

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the last patient left, and we would get telephone calls from patients asking questions
regarding appointments after 5:00 p.m. on occasion.”].) Also, she contends that “the record
supports the fact that during this time period, [she] was communicating with Sanso when
there was a need to work over.” (Doc. 38 at 6 [citing doc. 25 at 62-64 [Sanso testified as to
three instances of plaintiff communicating with her regarding working outside her normal
schedule in February 2012]; doc. 27 at 19-21 [emails regarding the three February 2012
communications].) She has not presented evidence that she had communicated with Sanso
on April 19, 2012, about working late or that she was performing work-related activities on
that day.
Peterson testified that Sanso did not bring Goodwin’s complaints to her attention.
(Doc. 39-3 ¶ 10.) Moreover, she denies that she responded negatively to Goodwin. (Id. ¶
11.)
The two PESs that were assigned primarily to the check-in desk – Brittney Bettison,
African-American, and Vicki Frye, white – reported to Sanso that Peterson was away from
the check-out desk and that she had failed to help them. (Doc. 25 at 95-96; doc. 24-1 at 62,
64.) Peterson denies that she ever failed to help the check-in desk when needed. (Doc. 39-3
¶ 12). Also, she sent an email offering to help others on March 8, 2012, (doc. 27 at 22);
however, Sanso testified that she sometimes doesn’t get email till a later time, so she
preferred that Peterson simply ask her coworkers if they needed help, rather than sending an
email, (doc. 25 at 65-66).

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Sanso testified that she had “coached” Peterson about the concerns raised by her
coworkers and reminded her periodically of the Foundation’s expectations regarding
customer service, team work, and working overtime.3 (Doc. 25 at 74-75, 81-82, 94, 96.)
3. Doctors’ Complaints
In early 2012 three doctors in the Dermatology Clinic complained to Sanso about
Peterson’s job performance, including that (1) she booked patients in the wrong appointment
slots, (2) she was unable to answer questions about patient charges, (3) she was staying late,
and (4) she displayed a negative attitude and negative body language when they asked her
questions. (Doc. 25 at 88-93.) Sanso testified that she had talked with Peterson about all of
these issues as part of her day-to-day coaching discussions with employees. (Id.) Peterson
testified that the only complaint she received from the doctors was a complaint about
scheduling that applied to everyone. (Doc. 39-3 ¶ 14.)

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Peterson testified that she was not told of complaints about her work or given an
opportunity to address complaints against her before the meeting on May 18, 2012, discussed
infra. (See doc. 39-3 ¶ 18.) However, in her deposition, Peterson testified that during this
time period she “was constantly called into [Sanso’s] office about someone saying this or
someone saying that.” (Doc. 24-1 at 61.)
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4. First HIPAA4 Violation
On April 27, 2012, Peterson gave one patient [hereinafter “Patient A”] the depart
summary of another patient [hereinafter “Patient B”]. (Doc. 24-1 at 55-60; doc. 34 ¶ 3.)
According to Peterson, Patient A had given her the charge ticket for Patient B. (Doc. 24-1
at 57-58.) During the check-out process, she had called Patient A by Patient B’s name, to
which Patient A had responded without correcting her. (Id. at 57.) The error was discovered
sometime later when Goodwin brought Patient B to the check-out desk, looking for his/her
charge ticket. (Doc. 39-3 ¶ 17; doc. 33 ¶¶ 11-12; doc. 24-1 at 56-57.)
Sanso investigated the incident. (Doc. 33 ¶ 10.) She testified that her investigation
showed that Dr. Elmet discovered he had Patient A’s charge ticket for Patient B, his patient.
(Id. ¶ 11.) He gave Patient A’s charge ticket to Goodwin and asked her to find Patient B’s
charge ticket. (Doc. 33 ¶ 11.) Goodwin asked Peterson about Patient B’s charge ticket and
Peterson told her that she had checked out Patient B. (Id. ¶ 12.) Sanso determined that
Peterson had failed to confirm Patient A’s name and his/her birthday at check-out, and she

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“HIPAA [Health Insurance Portability and Accountability Act] generally provides
for confidentiality of medical records and governs the use and disclosure of protected health
information by covered entities that have access to that information and that conduct certain
electronic health care transactions.” Sneed v. Pan American Hosp., 370 Fed. Appx. 47, 50
(11th Cir. 2010)(citing 45 C.F.R. § 164.502). Eleventh Circuit Rule 36-2 provides, in
pertinent part, “An opinion shall be unpublished unless a majority of the panel decides to
publish it. Unpublished opinions are not considered binding precedent, but they may be
cited as persuasive authority.” 11th Cir. R. 36-2 (emphasis added).
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had not compared the name on Patient A’s check and driver’s license with the name on
his/her charge ticket. (Id. ¶ 13.)
Sanso testified that she could not determine how the charge tickets were switched in
the first place. (Id. ¶ 14.) Peterson testified that she believed Goodwin had given Patient B’s
charge ticket to Patient A, but she did not see Goodwin give Patient A the wrong charge
ticket. (Doc. 24-1 at 100.) During the course of Sanso’s investigation, Peterson advised her
that she had received the wrong charge ticket directly from Patient A and that another doctor
had signed that charge ticket, which had Dr. Elmet’s name at the top. (Doc. 39-3 ¶¶ 15, 16.)
Sanso determined that Peterson had failed to confirm Patient A’s name and date of
birth when she checked him/her out and that she had failed to confirm that the name on
his/her check and his/her driver’s license was the same as the name on the depart summary.
(Doc. 33 ¶ 13.) Peterson does not dispute that she failed to verify Patient A’s birthday and/or
compare the name on his/her check and driver’s license with the name on the charge ticket.
She states only that she called Patient A by Patient B’s name and he/she did not correct her.
(Doc. 38 at 8 [citing doc. 39-3 ¶ 14].) According to Sanso, verifying the patient’s name and
date of birth and checking the driver’s license for a personal check are all part of the regular
protocol for check-out. (Id.) Sanso testified that she concluded that Peterson had not
properly verified Patient A’s identity causing her to give him/her Patient B’s depart summary.
(Id. ¶ 14.)

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Also, Sanso testified that her investigation did not identify any other employee who
had improperly disclosed patient information. (Doc. 25 at 111-13.) Nevertheless, she
arranged for additional education on patient confidentiality compliance for all clinic
employees, and she documented the HIPAA/privacy violation in the files of all the clinic
employees that had encountered Patients A or B that day – including Goodwin, white,
Bettison, African-American and LaShundra Turner, African-American. (Doc. 33 ¶ 19; doc.
34 ¶ 5; see doc. 28 at 11.)
Following her investigation, Sanso contacted Jeannie Singer, the Director of Sourcing
and Workforce Development in Human Resources [HR], to report the patient confidentiality
breach. (Doc. 33 ¶ 15; Doc. 35 ¶¶ 1, 2.) Singer told Sanso to talk to Jann Robinson, HIPAA
Privacy Coordinator. (Doc. 33 ¶ 15.) Generally, violations of patient confidentiality are
referred to Robinson for a determination of the level of the violation and whether it is a
reportable incident. (Doc. 34 ¶ 2; Doc. 35 ¶ 3.) Sanso contacted Robinson, who confirmed
that Peterson’s disclosure of the wrong depart summary was an incidental, as opposed to an
intentional, violation of the Foundation’s policy on use and disclosure of health information
and HIPAA. (Doc. 33 ¶ 16; 34 ¶ 3.) Singer and Sanso decided not to terminate Peterson
based on the incidental violation; rather, they decided to address the HIPAA/privacy
violation together with other performance issues. (Doc. 33 ¶ 17; doc. 35 ¶ 4.)

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E. WRITTEN WARNING OF MAY 18, 2012
On May 18, 2012, Sanso met with Peterson and gave her a written warning
[hereinafter “the May 18 Warning”]. (Doc. 33 ¶ 20; doc. 24-1 at 44.) The May 18 Warning
stated, “This disciplinary action is being taken for the following reason[s]: Job Performance
[and] Behavior.” (Doc. 29 at 4.) Under the heading, “Facts of Occurrence(s),” the May 18
Warning noted:
Received complaints from staff for concerns related to teamwork, customer
service, overtime accrual and abuse, personal phone calls, productivity, and
noncompliance with booking preferences of providers. Also had an incident
where patient information was given to the wrong patient at discharge
including the depart summary and payment receipt by Sarah [Peterson]. An
action plan is attached outlining more in-depth accounts of these concerns and
actions taken by Sarah to demonstrate improvement in performance/behavior.
Failure to demonstrate improvement in performance/behavior will result in
further disciplinary action up to and possibly including termination.
(Id.) The “action plan” attached to the May 18 Warning stated:
1. Teamwork – concerns relate to lack of initiative with assisting other PES
personnel and negative nonverbal communication
ACTION PLAN: Sarah will frequently (1) check on coworkers to determine
any assistance needed and assist these individuals when lines are forming to
keep clinic flow efficient[,] (2) ask coworkers if they need any assistance
throughout the day[, and] (3) . . . refrain from negative nonverbal and verbal
expressions at all times.
2. Customer Service – concerns relate to inappropriate tone, communication,
lack of acknowledgement [sic], and negative nonverbal expression.
ACTION PLAN: Sarah will (1) exhibit professional and positive
communication with customers at all times[,] (2) exhibit AIDET principles at
all times including the 10 foot rule and acknowledging patients with eye

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contact, verbal affirmation, pleasant expression, and tone and (3) will attend
Essential People Skills class.
3. Patient Identification – concerns relate to lack of verification of patient
identity prior to distributing patient information.
ACTION PLAN: Sarah will (1) review patient identification policies, HIPAA
law, and penalties[,] (2) serve on an action team to assist in educating staff on
risk management principles[,] and (3) actively verify patient identity prior to
giving patient information at all times.
4. Overtime Accrual – concerns relate to overtime accrual and productivity
with frequent personal phone calls and breaks while on overtime.5
ACTION PLAN: Sarah will (1) continue altered hours assigned to check out
personnel for early/late weeks[,] refrain from taking frequent breaks, personal
phone call while in the patient care area unless an emergency (only take on
breaks and in non-patient care areas)[,] (3) be proactive throughout the day to
accomplish PES duties by multi-tasking and carry out non-emergent duties as
needed[,] and (4) obtain approval for any overtime PRIOR to accrual by
Cheryl [Goodwin] or [Sanso].
(Doc. 29 at 5-6 [footnote added].) Sanso and Plaintiff discussed each of the action plan
areas, as well as specific improvement goals. (Doc. 24-1 at 45-53; see doc. 29 at 6.)

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In her Opposition Brief, Peterson states, “Plaintiff disputes that her productivity
suffered during the first quarter of 2012 except to the extent that she had to be off for
physical therapy for her workers’ compensation injury. The fact that Plaintiff was written
up in part for ‘productivity’ in May of 2012 could only have referred to her absences and
slowed performance due to her workers’ compensation injury, i.e., her rotator cuff tear.”
(Doc. 38 at 16 [citing doc. 39-3 ¶¶ 18, 31][emphasis in original].) However, the paragraphs
of her Declaration that she cites do not support a finding that her productivity suffered in the
first quarter of 2012 or at any time thereafter because of her shoulder injury. (See doc. 39-3
¶ 18 [“. . . I deny that I was lacking in . . . productivity . . . .”]; id. ¶ 31 [“There were times
in 2012 that I had to be absent or leave early to go doctor appointments or physical
therapy.”].)
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In the Employee Comments section, Peterson wrote, “I do not agree with this Written
Warning because there was never a verbal warning. Also this [has] no merit[;] it is hearsay.
I am put in a hostile environment, and no matter how well I perform [there] will be no
change.” (Doc. 29 at 4.) Peterson testified that she felt she was in a “hostile environment”
because she “was constantly called into [Sanso’s] office about someone saying this or
someone saying that,” and “it seemed like [she] was a bother to [Sanso] and [Sanso] was
rude.” (Doc. 24-1 at 61, 65.) Despite her testimony that she was constantly called into
Sanso’s office, she testified that, prior to May 18, 2012, she “was not previously coached by
Ms. Sanso regarding the items in the May 18, 2012, write-up.” (Doc. 39-3 ¶ 18.) She denies
“that she was lacking in teamwork, productivity, [and] non-compliance with provider
preferences,” and that she “abused overtime.” (Id.)
F. MEETINGS WITH WILSON ON MAY 21, 2012 AND MAY 22, 2012
A few days after the May 18 Warning, Peterson went to HR to complain that no other
employees had been disciplined for the patient confidentiality violation.6 (Doc. 24-1 at
121-23.) On May 21, 2012, Joan Wilson, African-American HR Generalist, met with
Peterson about her complaint. (Doc. 36 ¶¶ 1, 3; doc. 24-1 at 121-22.) Wilson had never met
Peterson before this meeting. (Doc. 36 ¶ 3.) During this meeting, Wilson told Peterson that
she could have been terminated for her patient confidentiality violation; she told Peterson,

6

Sanso testified that she documented the HIPAA violation in the files of all employees
that encountered Patients A or B that day. Also, the May 18 Warning was the result of other
conduct in addition to the HIPAA violation.
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“You should be happy that [Sanso] didn’t fire you because of a HIPAA violation.” (Doc. 241 at 123.) Peterson told Wilson that Sanso was a “racist” because she was “constantly
writing up the black people, and she never writes up the white people.” (Doc. 24-1 at
124-26; see also doc. 36 ¶ 3.) Wilson suggested that they meet with Sanso to discuss
Peterson’s concerns and Peterson agreed. (Doc. 24-1 at 125; doc. 36 ¶ 4.)
Peterson, Wilson, and Sanso met on May 22, 2012, and discussed the May 18
Warning and Peterson’s working relationship with Sanso. (Doc. 24-1 at 145; doc. 36 ¶ 5; see
doc. 29 at 9.) Wilson told Sanso that Peterson had called her racist, a fact that Peterson
thought Wilson would keep confidential. (Doc. 24-1 at 139.) Peterson stated that she felt
Sanso treated white employees better than African-American employees and that Sanso
considered African-American employees to be “a problem”. (Doc. 36 ¶ 5; doc. 24-1 at 140,
145-46; doc. 29 at 9.) Sanso replied that said she hated that Peterson felt that way, that she
did not feel that way about the employees, and that she would be more aware of the way she
communicated in the future. (Doc. 24-1 at 140, 145-46; doc. 36 ¶ 5.) Wilson felt this
meeting was successful and she was “hopeful that [Peterson would] receive the
admonishments and improve her performance.” (Doc. 36 ¶ 6; see doc. 29 at 9.)
G. SECOND HIPAA VIOLATION AND FINAL WARNING
On or about May 24, 2012, Sanso learned of a second patient confidentiality violation
involving Peterson.7 (Doc. 25 at 117-18; doc. 26 at 203-05; see doc. 27 at 1.) On that day,

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Peterson testified that she believed Sanso knew about this violation before issuing
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a patient’s father had contacted Dr. Rosenthal, Chief of Staff, to complain that his son (the
patient) had received another patient’s depart summary when he left the Dermatology Clinic.
(Doc. 32 ¶ 7.) Dr. Rosenthal notified Pardue, who contacted Sanso and Robinson. (Id. ¶¶
7, 8.)
Sanso investigated the incident and discovered that, on May 16, 2012, Peterson had
failed to verify the patient’s name and date of birth and that she had given the wrong depart
summary to a patient. (Doc. 25 at 117-20; doc. 24-1 at 95-97.) In her deposition, Peterson
testified that she did not know what happened that day or even if she had given the patient
the wrong depart summary. (See doc. 24-1 at 95-96.) However, in her Declaration, she
testified, “I recall that the reason for the HIPAA violation on May 16, 2012, was that the
patient who was checking out had a name that was extremely similar to another name in the
system.”8 (Doc. 39-3 ¶ 19.) She does not dispute the fact that she failed to verify the

the May 18 Warning, (doc. 24-1 at 93-94), and that, for discriminatory and retaliatory
reasons, Sanso had decided to issue two separate warnings in order to issue Peterson a Final
Warning, (doc. 24-2 at 261-64). However, Peterson has presented no evidence that Sanso
knew of the second violation before May 18, 2012. (See id at 261-62.) Indeed, it appears
no one was aware of the violation before the patient’s father complained to Dr. Rosenthal on
May 24, 2012. Peterson argues that Sanso learned about this second violation on May 21,
2012, the day before Sanso met with Peterson and Wilson, based on the Final Warning,
wherein Sanso states that she was aware of the mistake on May 21, 2012. (Doc. 25 at 117;
doc. 27 at 41.) Sanso testified that this date was a mistake and that she first learned about
the second violation in an email dated May 24, 2012. (Doc. 26 at 205; doc. 27 at 1.)
However, nothing in the record indicates that Sanso was aware of Peterson’s second HIPAA
violation before May 18, 2012.
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The patient checking out and the patient named on the depart summary had the same
last name. (Doc. 24-1 at 95.)
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patient’s name and birthday before handing him/her the depart summary. Robinson
confirmed that the disclosure of one patient’s depart summary to another patient was an
incidental violation of the Foundation’s patient confidentiality policy. (Doc. 34 ¶ 6.)
As a result of this May 16, 2012, incident, Peterson received a Final Warning on June
4, 2012. (Doc. 24-1 at 92-94; doc. 29 at 8.) This Final Warning stated:
Facts of Occurrence(s): Per out verbal discussion 5/31/12, I received a
complaint on May 21 and documentation regarding an incidental disclosure of
a patient’s depart summary to another patient by Sarah during check out of the
patient on 5/16/12. This is the second offense of this nature. . . . Both
patients involved have been notified of the incident and all information
inappropriately disclosed has been obtained.
Previous warning date(s):
For this same offense:
Written Warning 5/18/12 included an incidental
disclosure surrounding a depart summary and
failure to validate patient identity with receipt of
a check
For other offense(s):
Verbal Discussion by Kim Turnley (Director) for
teamwork/workload concerns with coworker,
Written Warning for multiple behavior and job
performance concerns 5/18/12
Follow-up, if applicable: As discussed previously via verbal discussions
during the account of the first incident, review of the written warning, and
verbal discussion of the second incident, Sarah will actively verify patient
name and date of birth. In addition, Sarah has vocalized she will lay
out/review all paperwork at check out to double check patient identification
and information to ensure verification and prevent incidental disclosures. The
action plan surrounding the written warning will also remain in effect which
includes Sarah reviewing the importance of HIPAA regulation and privacy
parameters in the Dermatology setting.
(Doc. 29 at 8.)

18

H. GAMBLE’S HIPAA VIOLATION
On June 5, 2012, Gamble was written up for a HIPAA violation. (Doc. 25 at 136.)
Gamble’s violation involved stapling together the depart summaries for two different patients
and giving them to the first patient. (Id. at 137.) The two depart summaries were printed at
the same time to the same printer. (Id.) Gamble picked up a stack of paper from the printer
and stapled them together without verifying that all the pages in the stack of papers were for
the same patient. (Id.) Sanso determined that Gamble had verified the patient’s name and
date of birth before handing him/her the stack of papers, but she had failed to check the stack
of papers. (Doc. 26 at 206-07.) Peterson testified that she told Sanso that she had asked
Gamble if she had papers belonging to the patient Peterson was checking out. (Doc. 39-3 ¶
20.) Gamble simply said, “no,” and did not check the stack of papers before handing them
to the patient. (Id.) Gamble received a verbal warning because, according to Sanso, Gamble
had verified the patient’s identity consistent with protocol. (Doc. 25 at 136-37; doc. 26 at
206-07; doc. 33 ¶ 22.)
Peterson contends that Gamble should have received the same discipline as she did
– written warning and final warning. (See doc. 39-3 ¶ 20.) However, Peterson’s May 18
Warning included issues other than a single HIPAA violation, (see doc. 29 at 4-6), and the
Final Warning was Peterson’s second HIPAA violation caused by her second failure to verify
the patient’s name and birthday, (see doc. 29 at 8).

19

I. PETERSON’S EEOC CHARGE
On June 27, 2012, Peterson filed a Charge of Discrimination with the EEOC, alleging
race and retaliation. (See doc. 1-1.) In this Charge, Peterson stated:
My race is Black. . . . I perform my duties in a satisfactory manner. Erika
Sanso, White, has been my immediate supervisor since November 2011. Prior
to her becoming my supervisor, I had no problems. On May 18, 2012, I
received a written warning from Ms. Sanso for checking out a patient who had
the wrong chart. The incorrect [chart] was given to the patient by Cheryl
Goodwin, White. Ms. Goodwin was not issued a disciplinary action. I asked
Ms. Sanso about Ms. Goodwin being disciplined and she told me it was not my
concern. Prior to my written warning I sent Ms. Sanso’s supervisor Towana
Pardue an email telling her I thought Ms. Sanso was talking to Whites better
than Blacks and that she was creating [a] hostile work environment. On June
08, 2012, Aubrey Gamble, White, gave a patient someone else’s information
and no action was taken against her. Whites under Ms. Sanso’s supervision
take breaks, however, when I take a break I’m called into the office by Ms.
Sanso.
I believe I was disciplined because of my race and in retaliation for
complaining of a hostile environment in violation of Title VII . . . .
(Id.) She did not mention the Final Warning. (See id.)
J. PETERSON’S SHOULDER SURGERY AND SUBSEQUENT LIGHT DUTY
Between June 19, 2012, and July 5, 2012, Peterson had surgery on her shoulder and
was on leave. (Doc. 24-1 at 142-44.) Following her leave, she returned to work with a note
from her doctor releasing her to normal duties, provided that she could keep her left arm in
a sling. (Doc. 25 at 124; doc. 33 ¶ 23; doc. 33-1 at 2.) On or about August 1, 2012, Peterson
gave Sanso a note from a different doctor, limiting her to light duty. (Doc. 33 ¶ 24; doc. 33-1
at 3.) Sanso accommodated the restrictions, and, on August 6, 2012, she gave Peterson a

20

memo outlining her light duty responsibilities. (Doc. 25 at 124; doc. 27 at 43.) Peterson
remained on light duty until October 2012. (Doc. 24-1 at 165.)
K. PETERSON’S COMPLAINTS ABOUT A HOSTILE WORK ENVIRONMENT
AND MEETINGS TO ADDRESS CONFLICTS WITH COWORKERS
On August 22, 2012, Peterson sent an email to Sanso complaining that Tracey Foster,
an African-American CMA, was rude to her and she felt she was working in a hostile
environment. (See doc. 30 at 4; doc. 24-1 at 169, 173.) Peterson did not specify that she
believed the hostility was based on her race, her prior protected activity, or her worker’s
compensation claim. (See doc. 30 ¶ 4.) Two days later she met with Sanso and Wilson to
discuss her concerns. (Doc. 24-1 at 177-78; see doc. 30 at 5.)
When asked by Sanso and Wilson what she meant by a “hostile environment,”
Peterson told Sanso “that she felt everyone was being rude, [and] that she was disliked. She
felt that it was a challenge at times to do her job.” (Doc. 25 at 132.) During this meeting,
Peterson raised several other issues concerning her relationships with her coworkers,
including:
1.

A person in housekeeping said[,] “Sarah are you still here? All your
stuff is gone from your work area, all your pictures are down.” Why
would the housekeeping person say that and why did someone move my
stuff?

2.

I was treated poorly when I returned from leave.

3.

One day I paged my workman’s [compensation] doctor because I was
having problems with my arm and I told everyone in my area that I had
paged his office. When I didn’t get a call back for three days, I called

21

his office and was told that they had called and talked to someone in my
office – no one ever told me that.
4.

The phone code was changed and I did not know the new code[.] I
asked Aubrey [Gamble] if she changed it and she said that she did not
change it. I called the Help Desk and they said the code had been
changed by Aubrey. . . .

5.

The deposit code was changed and no one was willing to give me the
correct number. . . .

6.

I went into medical records area and [LaShundra Turner] was sitting in
the place I usually sit. I asked her to move and I heard [LaShundra] say
“that’s why I cannot stand that bald headed [bitch].”

7.

Erika [Sanso told] me to communicate with others, but no one is
communicating with me.

(Doc. 30 at 5 [Wilson’s notes memorializing the meeting with Sanso and Peterson]; see doc.
24-1 at 178 [Peterson testified that Wilson’s summary was accurate].) In response to these
concerns, Sanso suggested that she and Wilson facilitate one-on-one meetings between
Peterson and her coworkers and Peterson agreed. (Doc. 36 ¶ 8; doc. 24-1 at 190; doc. 30 at
5; doc. 39-3 ¶ 3.)
On September 5, 2012, Sanso, Wilson, and Peterson met with Foster, Turner, and
Gamble, as well as Ashley Wells, a white employee in the Call Center, and Laura Puckett,
a white employee in Medical Records. (Doc. 24-1 at 175-77, 191-94, 196-97, 199, doc. 24-2
at 201-02; see doc. 30 at 6.) According to Wilson and Sanso, Peterson raised her concerns
with her coworkers about how they were treating her and some of the coworkers, specifically
Turner and Gamble, voiced concerns about how Peterson treated them. (Doc. 36 ¶¶ 10-11;

22

doc. 33 ¶ 28.) Gamble stated that she did not like Peterson because she reported people to
HR and because she had filed a lawsuit against the Foundation.9 (See doc. 30 at 6.) Turner
denied calling Peterson a “bald-headed bitch,” but she admitted that she did not like Peterson.
(Doc. 24-1 at 197-98.)
After the individual meetings, Sanso and Wilson pointed out to Peterson that she
appeared to be the “common denominator” in the conflicts among her coworkers. (Doc. 33
¶ 30; doc. 36 ¶ 12.) However, they testified that, after these meetings, they were hopeful that
Peterson would improve her communication with her coworkers and would be more sensitive
to how she came across to others. (Doc. 33 ¶ 30; doc. 36 ¶ 12.)
L. PETERSON’S ISSUE WITH GAMBLE IN OCTOBER 2012
According to Sanso, after the September 5, 2012, meetings, the issues between
Peterson and her coworkers appeared to improve for a time. (Doc. 33 ¶ 31.) However,
Peterson testified, “After I had returned from having surgery, . . . Ms. Gamble’s attitude had
changed toward me. . . . She would change the passwords and codes and this would prevent
me from doing my job. She did not leave any code on a sticky note for me.” (Doc. 39-3 ¶
21.) On October 10, 2012, Peterson emailed Sanso complaining that Gamble had changed
the telephone code at the check-out desk without telling her the new code; she complained
to Sanso that “nothing has change[d] since the [September 5] meeting.” (Doc. 25 at 137-38;

9

At this time, Peterson had not filed a lawsuit against the Foundation, although her
EEOC Charge was pending.
23

doc. 27 at 46.) Sanso investigated Peterson’s complaint and she determined that Gamble had
put the new telephone code on a sticky note at the check-out desk, which was the appropriate
procedure. (Doc. 25 at 130.) She testified that she had been unable to determine whether
Gamble was otherwise appropriately communicating with Peterson, but she coached Gamble
to be more aware in her interactions with Peterson. (Doc. 33 ¶ 31.)
Shortly after the September meetings, Gamble was promoted to a position in the Call
Center, a position for which Peterson had also applied. (Doc. 39-3 ¶ 34.) Peterson has not
raised a claim based on her failure to be promoted to the Call Center position.
M. PETERSON’S 2012 EVALUATION
Peterson received her yearly evaluation from Sanso on October 30, 2012. (See doc.
30 at 9-12.) Sanso rated Peterson as “meet[ing] some expectations,” which means that the
employee “[g]enerally did not meet criteria relative to quantity and quality of job
performance/behavior required,” on all four of the Foundation’s core values – “Integrity (Do
Right),” “Ownership (Own It),” “Caring (Always Care),” and “Collaboration (Work
Together)” – and on four out of nine applicable job responsibilities. (See id. at 9-10; doc. 33
¶ 33.)
Under the core value of “Integrity,” Sanso noted that Peterson had been disciplined
for overtime, personal phone calls, communication problems, customer complaints, and work
concerns. (Doc. 30 at 9.) Peterson indicated that she believed her performance in this area
had “exceeded some expectations.” (Id.)

24

Under the core value of “Ownership,” Sanso noted that Peterson had multiple entry
errors and HIPAA violations. (Id.) Peterson indicated that she believed her performance in
this area had “exceeded some expectations.” (Id.)
Under the core value of “Caring,” Sanso noted that Peterson “usually” related well to
patients but that she had concerns about team work and Peterson’s negative comments to
coworkers. (Id.) She also noted that Peterson complained and that she had spent “a great
deal of [her] time . . . mediating conflicts with coworkers.” (Id.) Peterson indicated that she
believed her performance in this area had “met expectations.” (Id.)
Finally, under the core value of “Collaboration,” Sanso noted that Peterson had been
disciplined for “team work concerns,” and she repeated that she had spent time mediating
conflict between Peterson and her coworkers. (Id. at 9-10.) She stated that Peterson needed
to respect her coworkers and improve her communication, although she noted that Peterson
had participated in training new individuals. (Id.) Peterson indicated that she believed her
performance in this area had “exceeded some expectations.” (Id. at 9.)
Peterson’s evaluation states the following with regard to those job responsibilities for
which Sanso rated Peterson as “Met Some Expectations.” With regard to “Checks patients
out of the clinic after their visit” job responsibility, Sanso noted that Peterson had HIPAA
violations as a result of her failure to verify patient information. (Id, at 10.) Peterson
indicated that she believed her performance of this job responsibility “exceeded some
expectations.” (Id.)

25

With regard to “accurately completes tasks related to patient financial responsibilities”
of the clinic after their visit” job responsibility, Sanso noted that “We did have some
circumstances arise where inaccurate billing measures occurred for which [Peterson]
reviewed and was unsure of what happened[,] which resulted in further training.” (Id.)
Peterson indicated that she believed her performance of this job responsibility “met some
expectations.” (Id.)
With regard to “schedule patient appointments” job responsibility, Sanso noted that
she had complaints of patients arriving for appointments at the wrong time or on the wrong
day because Peterson had put a different time/date on the depart summary than on the
computer schedule. (Id.) Peterson indicated that she believed her performance of this job
responsibility “exceeded some expectations.” (Id.)
With regard to “financial and billing responsibilities” job responsibility, Sanso noted
that Peterson had “payments [that] were not accounted for appropriately resulting in financial
loss to the institution and further training.” (Id. at 11.) Peterson indicated that she believed
her performance of this job responsibility “exceeded expectations.” (Id.)
During this same time period, Sanso gave Gamble an excellent evaluation. (Doc. 25
at 145; doc. 28 at 1-4.)
N. DECEMBER 2012 PATIENT COMPLAINT
In December 2012, a patient had complained she was “disappointed and offended”
when Peterson “rudely” told her to “step back for privacy.” (Doc. 28 at 49-50.) The patient

26

reported that Peterson was very rude and that other patients had commented about it. (Id. at
50.) Peterson denied she was rude to a patient. (Doc. 24-2 at 229.) She testified that, during
this time period, she “kindly” told several patients, “Would you please step back for
privacy?,” when one patient was standing too close to the patient at the desk. (Id.) She does
not know if any patient complained and, if so, such complaint was not brought to her
attention at the time. (Id. at 229-30.)
In her Declaration, Peterson testified:
37. Patient complaints were made about white employees that were
brought to Erika Sanso’s attention. On one occasion, I witnessed a black
female patient in tears. The patient was upset about the way that Vicki Frye,
white, check-in desk worker, had treated her. I reported this information to
Erika Sanso and the patient spoke to Sanso about it.
38. In October of 2012, when Aubrey [Gamble] was working in checkout, a daughter and her mother started to be checked out by Aubrey, and
Aubrey treated them in an unprofessional manner. The daughter brought her
mother to my workstation and she said that she did not want to be checked out
by the white woman, pointing to Aubrey. I informed Erika Sanso of this
incident.
(Doc. 39-3 ¶¶ 37-38.)
O. EEOC ON-SITE INVESTIGATION
The EEOC Conducted an on-site investigation on December 10, 2012. (Doc. 25 at
148-49.) During their visit, employees from the EEOC questioned a number of Foundation
employees, including Sanso. (Id.) Sanso told the EEOC investigator that she had no
concerns about Peterson’s teamwork at that time. (Id. at 149.) The record contains no
evidence that Peterson participated in the on-site investigation.
27

P. CARTER’S COMPLAINTS
Following the EEOC’s on-site visit, Ashley Carter, African-American PES who
replaced Gamble at the check-out desk, complained about Peterson’s behavior. (Doc. 24-1
at 188; doc. 25 at 29; doc. 33 ¶ 34.) According to Sanso, Carter came to her in tears and said
she was considering quitting. (Doc. 33 ¶ 34.) Carter’s complaints to Sanso and Peterson’s
responses were:
• Peterson took personal phone calls at the check-out desk, (doc. 33 ¶ 34);
Peterson denied her personal phone calls interfered with her work, (doc. 39-3
¶ 24).
• Peterson gave Carter her charge tickets to enter rather than entering them
herself, (doc. 33 ¶ 34), which Peterson denied, (doc. 39-3 ¶ 24).
• Peterson talked with her son, who routinely stopped by the check-out desk,
which backlogged patients in line for check-out. (Doc. 33 ¶ 34.) Peterson
denied her son frequently stopped by the check-out desk and/or that she talked
to him while patients waited. (Doc. 39-3 ¶ 24.)
• Peterson spent a lot of time addressing missing charge tickets or outstanding
items rather than having her desk open to check-out patients, (doc. 33 ¶ 34),
which Peterson denied, (doc. 39-3 ¶ 24).
• Peterson did not assist in calling Dr. Kissel’s patients, although this was
supposed to be a shared responsibility, (doc. 33 ¶ 34), which Peterson denied,
(doc. 39-3 ¶ 24).
• Peterson was rude to patients and took too many breaks, even when several
patients were in line, (doc. 33 ¶ 34), which Peterson denied, (doc. 39-3 ¶ 24).
Sanso reported Carter’s concerns to Singer in an email dated December 14, 2012. (Doc. 33
¶ 34.) Peterson testified that Sanso did not tell her about Carter’s complaints in December
2012. (Doc. 39-3 ¶ 24.)
28

Q. RIGHT TO SUE LETTER
The EEOC issued Peterson a right to sue letter on her EEOC Charge on January 2,
2013. (Doc. 16-3.)
R. JANUARY 4, 2013 – RETURNED CHECK
On January 4, 2013, the Patient Ambulatory Access Department reported that Peterson
had failed to obtain a patient’s driver’s license information, as required by the Foundation’s
check verification protocol. (Doc. 33 ¶ 35.) The Foundation’s agreement with its checkprocessing company does not cover returned checks without the proper identification
information. Therefore, the Foundation was financially responsible for the returned check,
which did not contain the patient’s driver’s license information. (Doc. 33 ¶ 35.)

On

January 10, 2013, Sanso also discovered that Peterson had accepted three checks for which
she had failed to obtain the requisite identification information. (Doc. 33 ¶ 37.)
Peterson testified that she had no control over whether a check was returned. (Doc.
39-3 ¶ 25.) She also testified that she was aware that the Foundation’s policy required her
to write a telephone number and driver’s license number on the face of each check. (Id.)
However, she does not dispute that she failed to record the patient’s driver’s license
information on the returned check, which made the Foundation – and not the checkprocessing company – responsible for the unpaid check, and she does not dispute that Sanso
found she had accepted three other checks without the required driver’s license information.

29

S. CARTER’S ADDITIONAL COMPLAINTS AND PETERSON’S MEETING WITH
WILSON AND SANSO
On January 9, 2013, Carter complained again to Sanso about Peterson leaving the
check-out desk for approximately fifteen minutes at a time other than her break, while a line
of eight to ten people waited at the check-out desk. (Doc. 33 ¶ 36; doc. 33-1 at 9.) Peterson
denied that she was away for fifteen minutes, but she did not deny that Carter made such a
complaint. (See doc. 39-3 ¶ 26.) Sanso met with Wilson for guidance on handling Carter
and Peterson’s conflict and Peterson’s continuing behavioral and performance issues,
including leaving the check-out desk. (Doc. 33 ¶ 38; doc. 36 ¶ 14; see also id., exh. E, at 16.)
The following day, Carter complained to Sanso that she was carrying a heavier load
than Peterson, and she pointed to the number of charges she had entered on January 9th and
10th as compared to Peterson. (Doc. 33 ¶ 37.)

After comparing their entries, Sanso

determined that Carter appeared to be processing significantly more payments and money
items than Peterson. (Doc. 33 ¶ 37.) Peterson testified that, on January 8, 2013, Carter told
her that she had been told that Peterson was to do all precertifications. (Doc. 39-3 ¶ 27.) She
told Sanso that she had spent “a great deal of time” doing the precertifications on January
9th and 10th. (Id.)
On January 11, 2013, Sanso and Wilson, along with Annalee Hudson, a white HR
Generalist, met with Peterson and Carter to discuss their interpersonal conflicts. (Doc. 24-2
at 225; doc. 33 ¶ 39; doc. 36 ¶ 15.) Following this discussion, and after Carter had left the
meeting, Sanso told Peterson that she had previously addressed teamwork and
30

communications concerns with her and she had not seen Peterson change her behavior.
(Doc. 24-2 at 225-26; doc. 36 ¶ 15; doc. 33 ¶ 39.) Peterson stated that when she raised a
concern about her coworkers, Wilson (African-American) and Sanso did not believe her and
they always believed the other employee. (Doc. 39-3 ¶ 35.) Wilson told Peterson, again, that
she was the common denominator in the interpersonal conflicts with coworkers and such
behavior in the future would not be tolerated. Wilson told Peterson that this was her last
chance. (Doc. 24-2 at 226-27; doc. 33 ¶ 39; doc. 36 ¶ 15; see also id., exh. F, at 18.) Wilson
said, “This is the last time we will talk with you about anything. The next time, you will be
out the door.” (Doc. 24-2 at 226-27.) Sanso testified that she had considered terminating
Peterson at this time because she felt that they had been clear about their expectations and
Peterson was unable or unwilling to change her behavior and improve her performance.
(Doc. 33 ¶ 40.)
T. JANUARY 25, 2013, INCIDENT AND PETERSON’S TERMINATION
On January 25, 2013, Sanso noticed that two patients were waiting to check-out while
Peterson was on duty, but no one was at the check-out desk. (Doc. 33 ¶ 41; doc. 26 at
167-69; doc. 28 at 51; doc. 39-3 ¶ 36.) Sanso got the employees at the check-in desk to
check-out the patients. (Doc. 33 ¶ 42.) According to Sanso, she saw Peterson come out of
the restroom ten minutes later. (Id.; doc. 28 at 51.) Peterson told Sanso that she had been
in a hurry to blow her nose, to which Sanso responded that she had tissue at the check-out
desk. (Doc. 33 ¶ 42; doc. 28 at 51 [“When you came back to your desk I asked where you

31

had been and you told me you had to ‘blow your nose’. I noted you had been gone for about
ten minutes (and that you had tissue at your desk) . . . .”].) Sanso asked Peterson why she had
not told the check-in staff that she needed to step away, and Peterson told Sanso that no one
was at the check-in desk for her to tell. (Doc. 33 ¶ 42.) Peterson testified that she had
followed protocol by looking for a PES in check-in to cover for her, turning off her light, and
leaving a note at the check-out desk when she could not find a PES employee to cover for
her. (Doc. 39-3 ¶ 36; see also doc. 31 at 9.) Sanso did not believe Peterson because she had
seen the check-in employees at the check-in desk the entire time Peterson was away. (Doc.
33 ¶ 42.)
At this point, Sanso decided to terminate Peterson because she felt that Peterson was
not going to improve her performance or her relationships with her coworkers and that
additional disciplinary action would not be effective. (Doc. 33 ¶ 43) On January 30, 2013,
Sanso and Wilson met with Peterson and terminated her employment based on her continuing
behavioral and performance issues. (Id. ¶ 44; doc. 36 ¶ 17.) During this meeting, Sanso gave
Peterson a Memorandum, which set forth Sanso’s reasons for Peterson’s termination. (Doc.
31 at 6-9.) This Memorandum stated:
Sarah, as a summary of recent discussions, this will serve as written
notification that you are being terminated from employment at this time based
on ongoing interpersonal conflicts, patient complaints and job performance.
Prior disciplinary actions and a summary of the most recent issues are outlined
below.

32

BACKGROUND
Since your transfer to Dermatology Clinic on January 3, 2011[,] and prior to
my arrival as manager, you received verbal counseling from the former Sr.
Director about teamwork and workload/productivity concerns. Since my
arrival as manager, we have addressed your performance or behavior as
follows:
May 18, 2012
You were issued a written warning for an incidental disclosure surrounding a
depart summary and failure to validate patient identity. You also received a
written warning for concerns related to teamwork, customer service,
unauthorized overtime, personal phone calls, productivity and lack of
compliance with scheduling preferences of providers. . . .
...
June 4, 2012
You were issued a Final Warning for a second HIPAA patient privacy
violation.
September, 2012
As a result of continuing interpersonal working relationship issues in the
clinic, we conducted one-on-one meetings and discussions with you and five
co-workers in an effort to work through interpersonal relationship conflicts.
In those meetings, it was reiterated that you were the common denominator
among your coworkers.
October 30, 2012
On your annual performance evaluation for the period October 1, 2011[,]
through September 30, 2012, you scored less than satisfactory on all four Core
Values . . . and less than satisfactory on four of your key job responsibilities.
CURRENT ISSUES
Patient Complaint
In December 2012, a patient reported that she felt very “disappointed and
offended” with you at check out because she was rudely told to “step back for
privacy”. The patient was not upset that she was told to step back; she was
upset in the way this message was delivered, stating that you were very rude

33

and when you said it, other patients commented about it when they walked out
with her.
Productivity
A review of your work productivity shows consistently lower volume than
your co-worker.
Thursday, January 10th

You–15
Co-Worker–33
Wednesday, January 9th

IDX Payments Posted

Money Items
Collected
You–14
Co-Worker–29

You–20
Co-Worker–32

You–17
Co-worker–25

Inequality with workload causes co-worker tension when you are not perceived
as being proactive or responsive with your job responsibilities.
Unsatisfactory Job Performance/Failure to Follow Job Protocol
In December we received a report from the Patient Access Office indicating
there was a returned check for which you did not obtain the required
information, which means we may incur financial loss from services rendered.
During my January review of cash batches and receipts, I found three (3)
additional returned checks for which you did not obtain the required
information. This may result in a financial loss for the clinic if payment is not
received. You are well aware of the protocol to obtain specific information for
each check received.
December 11, 201210
Another facilitated discussion occurred with an additional co-worker about
interpersonal working relationship issues. We again reiterated the importance
of making the patient/customer priority over all other “duties” such as filing,
putting in charges, etc. when a patient approached the desk. Your response
was, “oh, okay” as if this was [a] new instruction to you. We further
emphasized the need to focus on the customer at the desk.

10

This date should be January 10 or 11, 2013. (Doc. 31 at 8 [handwritten note]; doc.
24-2 at 228.)
34

Sarah, as pointed out during the December 11th discussion, you are the
common denominator in the interpersonal conflicts and facilitated discussions
with six co-workers in the past 6 months.11 We reiterated the need for you to
demonstrate different behaviors in order to maintain successful working
relationships and to continue your employment in the position. You indicated
your understanding and stated that you would not cause another incident to
have another meeting. It was reiterated that this was the last discussion about
the matter and there would be no further warnings. You indicated your
understanding.
January 25, 2013
As you know, in addition to prior discussions and counseling, you just signed
updated Staff Expectations in staff meeting on January 18th. Despite this
history of counseling about your teamwork and the need to be more
considerate of your coworkers and patients, just last week I observed the
following failure to do either. You were away from your desk for about 10
minutes and had not taken any steps to re-route patients. Accordingly, I
noticed two patients standing at check out with no direction. When I realized
that you were gone, I re-routed the patients to check-in to be helped. When
you came back to your desk I asked where you had been and you told me you
had to “blow your nose”.12 I noted you had been gone for about ten minutes
(and that you had tissue at your desk) and also asked why you had not told the
check[-]in staff you were stepping away s that they could have helped the
patients in your absence. You said there was no one at the check-in desk to
tell. In fact, I observed that the check-in staff was present, servicing patients
the entire time. I do not know why you would behave this way, leaving our
patients with no assistance as well as leaving your work for coworkers. We
have addressed these issues as recently as the December 11th meeting. Your
decision to leave the desk unattended without proper communication is not in

11

The record reflects that Sanso and Wilson had “facilitated discussions” with
Peterson and five coworkers in September and with Peterson and Carter in January.
Therefore, the six “facilitated discussions” occurred within five months.
12

Apparently plaintiff went to the bathroom for purposes other than blowing her nose.
(Doc. 31 at 9 [handwritten note – “If I had waited would have had an accident on myself.”].)
She also noted on the Memorandum, “Erika [Sanso] was not in office or anywhere around”
and “could not wait to go to bathroom.” (Id.) She stated that no patients were waiting at
check-out and the she was gone two to three minutes. (Id.)
35

keeping with your commitment to teamwork and customer service that you
made in that meeting.
Given the continuing issues with your behavior and performance, despite
repeated counseling, we are terminating your employment today. . . .
(Doc. 31 at 6-9 [footnotes added].)
Following Peterson’s termination, the Foundation hired two white PESs – Leigh Davis
and Shelby Pierce. (Doc. 25 att 41, 43-44.) Pierce primarily worked the check-out desk,
although both she and Davis rotated between the check-in and check-out desks. (Id. at 43,
44.) Peterson did not file an EEOC charge following her termination.
U. UNEMPLOYMENT COMPENSATION HEARING AND DECISION
Peterson filed for unemployment compensation benefits following her termination.
(Doc. 24-2 at 239.) The State of Alabama’s Department of Industrial Relations [DIR] ruled
in Peterson’s favor on her claim. (Doc. 39-1 at 1.) Specifically, it found:
The claimant worked for the listed employer from June 3, 1997, until January
30, 2013, as a patient counter specialist. She was discharged from
employment based upon charges that she disregarded patients and coworkers.
The final incident, which raised a reason for discharge, was that the claimant
had left her workstation to use the restroom. The procedure is to notify a
coworker if t is necessary to leave the workstation, but at the time the claimant
left there were no employees at check-in. In such event, the procedure is to
write a note on a pad and turn off the light. The claimant followed this
procedure. It was necessary that the claimant visited the restroom, because she
[was] suffering from a temporary illness. She was gone to the restroom less
than three minutes.
(Id.) Based on this finding, DIR concluded:
Section 25-4-78(3)(b) of the Law provides that an individual shall be
disqualified for total or partial unemployment if the individual was discharged
36

from the most recent bona fide work for actual or threatened misconduct
committed in connection with work repeated after previous warning.
“Misconduct” is defined as a disregard of the employer’s interests or of the
standards of behavior which the employer had the right to expect of
employees. The employer has [the] right to expect employees will follow
reasonable policies and regulations and treat coworkers with fairness and
respect and do the same with customers. The final incident resulting in the
claimant’s discharge does not demonstrate that she did, in fact[,] disregard the
standard. Misconduct is not established. Therefore, the claimant is not subject
to disqualification under this section of the Law.
(Doc. 39-1 at 1.)
V. THE INSTANT ACTION
On April 5, 2013, Peterson filed a Complaint, which was subsequently amended,
alleging that the Foundation (1) discriminated against her on the basis of her race in violation
of Title VII and § 1981, (2) retaliated against her for complaining of racial discrimination in
disciplining her and terminating her employment in violation of Title VII and § 1981, and
(3) wrongfully discharged her in violation of Alabama law in retaliation for her worker’s
compensation claim. (See generally doc. 1; doc. 16.) The court finds that Peterson has
alleged race discrimination and retaliation claims based on disparate discipline with regard
to the May 18 Warning and the Final Warning and with regard to her termination.

37

III. DISCUSSION
A. FEDERAL CLAIMS
1. May 18 Warning and Final Warning
The Foundation asks the court to enter a summary judgment on Peterson’s race
discrimination and retaliation claims brought pursuant to Title VII, 42 U.S.C. §§ 2000e-2,
2000e-3, and 42 U.S.C. § 1981. (See doc. 22; doc. 23 at 24-30.) In response, Peterson
argues that there are genuine issues of fact with regard to whether she was terminated
because of her race or in retaliation for protected activity. (See doc. 38 at 23-31.) She does
not respond to the Foundation’s Motion for Summary Judgment as to her claims based on the
May 18 Warning or the Final Warning. Therefore, to the extent Peterson’s Complaint and/or
Amended Complaints contain race discrimination and retaliation claims based on adverse
actions other than her termination, those claims will be dismissed as abandoned. See Case
v. Eslinger, 555 F.3d 1317, 1329 (11th Cir. 2009)(citing Johnson v. Board of Regents, 263
F.3d 1234, 1264 (11th Cir. 2001)); see also Resolution Trust Corp. v. Dunmar Corp., 43 F.3d
587, 599-600 (11th Cir. 1995).
2. Termination
Because Peterson relies upon circumstantial evidence to prove her termination claims,
the court’s analysis is governed by the tripartite framework established by the Supreme Court
in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), and later refined in Texas
Department of Community Affairs v. Burdine, 450 U.S. 248 (1981). See Reeves v. Sanderson

38

Plumbing Products, Inc., 530 U.S. 133, 142 (2000). The Supreme Court has explained this
framework as follows:
McDonnell Douglas and subsequent decisions have established an
allocation of the burden of production and an order for the presentation of
proof in . . . discriminatory-treatment cases. First, the plaintiff must establish
a prima facie case of discrimination. . . . The burden [then] shift[s] to [the
defendant] to produce evidence that the plaintiff was rejected, or someone else
was preferred, for a legitimate, nondiscriminatory reason. This burden is one
of production, not persuasion; it can involve no credibility assessment. [When
the defendant offers] admissible evidence sufficient for the trier of fact to
conclude that [the plaintiff suffered an adverse employment action for a
legitimate, nondiscriminatory reason], the McDonnell Douglas
framework--with its presumptions and burdens – disappear[s], and the sole
remaining issue [is] discrimination vel non . . . .
Although intermediate evidentiary burdens shift back and forth under
this framework, the ultimate burden of persuading the trier of fact that the
defendant intentionally discriminated against the plaintiff remains at all times
with the plaintiff. And in attempting to satisfy this burden, the plaintiff – once
the employer produces sufficient evidence to support a nondiscriminatory
explanation for its decision – must be afforded the opportunity to prove by a
preponderance of the evidence that the legitimate reasons offered by the
defendant were not its true reasons, but were a pretext for discrimination. That
is, the plaintiff may attempt to establish that he was the victim of intentional
discrimination by showing that the employer’s proffered explanation is
unworthy of credence.
Id. at 142-43 (internal citations and quotations omitted).

39

a. Race Discrimination Prima Facie Case13
The Foundation contends that Peterson’s race discrimination termination claims are
due to be dismissed because she “cannot establish that [the Foundation] treated similarly
situated employees outside the protected category more favorably.” (Doc. 23 at 24.)
Peterson argues that she has established her prima facie case by proving she was replaced by
a white employee. (Doc. 38 at 24.)
A plaintiff may establish a prima facie case of discriminatory discharge by showing
(1) she is a member of a protected class, (2) she was qualified for the job, (3) she was
terminated, and (4) either she was replaced by someone outside the protected class or she was
terminated for misconduct that was “nearly identical to [misconduct] engaged in by [an
employee outside the protected class] whom [the employer] retained.” Cuddeback v. Florida
Bd. of Educ., 381 F.3d 1230, 1235 (11th Cir. 2004)(citing Reeves, 530 U.S. at 142); Nix v.
WLCY Radio/Rahall Communications, 738 F.2d 1181, 1185 (11th Cir. 1984)(quoting Davin
v. Delta Air Lines, Inc., 678 F.2d 567, 570 (5th Cir. Unit B 1982) and citing McDonald v.
Santa Fe Trail Transportation Co., 427 U.S. 273, 282-84 (1976); see also Burke-Fowler, 447
F.3d at 1323 (“When a plaintiff alleges discriminatory discipline, to determine whether

13

The court notes that Peterson’s EEOC Charge was filed before her termination and
she did not amend her charge or file a new charge following her termination. Therefore, her
Title VII claims based on her termination appear to be barred by her failure to exhaust her
administrative remedies. However, the Foundation has not moved to dismiss Peterson’s Title
VII claims on this ground and Peterson’s failure to file an EEOC charge does not affect her
§ 1981 claims.
40

employees are similarly situated, [the court] evaluates ‘whether the employees are involved
in or accused of the same or similar conduct and are disciplined in different ways.’”)(quoting
Maniccia v. Brown, 171 F.3d 1364, 1368 (11th Cir. 1999)).
The parties do not dispute that Peterson can show the first three elements of a prima
facie case. Peterson has presented evidence that she was replaced by Shelby Pierce, white.
Therefore, the court finds that she has established a prima facie case of race discrimination
with regard to her termination.
3. Retaliation Prima Facie Case
In order to establish a prima facie case of retaliation in violation of Title VII and
Section 1981, Peterson must establish: (1) a statutorily protected expression or activity; (2)
an adverse employment action; and (3) a causal relationship between the protected expression
and the adverse action. Davis v. Coca-Cola Bottling Co. Consol., 516 F.3d 955, 978 n.52
(11th Cir. 2008). The Foundation contends that Peterson cannot establish the necessary
causal connection between any protected activity and her termination. Peterson argues that
she can establish the causal link element by proof of “an intervening pattern of antagonism.”
(Doc. 38 at 29 [citing Woods v. Bentsen, 889 F. Supp. 179 (E.D. Pa. 1995)].)
“The causal link element [of the retaliation prima facie case] is construed broadly so
that a plaintiff merely has to prove that the protected activity and the negative employment
action are not completely unrelated.” Pennington v. City of Huntsville, 261 F.3d 1262, 1266
(11th Cir. 2001)(quoting Olmsted v. Taco Bell Corp., 141 F.3d 1457, 1460 (11th

41

Cir.1998)(quoting E.E.O.C. v. Reichhold Chem., Inc., 988 F.2d 1564, 1571-72 (11th
Cir.1993)))(internal quotations omitted); see also McCann, 526 F.3d at 1376.
According to Peterson, she engaged in protected activity (1) when she complained to
Pardue in January 2012, (2) when she complained to Wilson in May 2012, and (3) when she
filed an EEOC Charge in June 2012. (Doc. 38 at 28.) Defendant notes that as of the May
18, 2012 warning, the only protected activity in which plaintiff had engaged was her January
Complaint to Pardue. (Doc. 23 at 26.) However, there is no evidence that the decision
makers with regard to the May 18 warning were aware that plaintiff had engaged in protected
activity. Although Sanso was aware of plaintiff’s protected activity by the time of the final
warning, there is no evidence on which a reasonable jury could find that the final warning
was related to the protected activity.
Plaintiff was terminated in January 2013. This gap of six months between the date
she filed her EEOC charge and the date of her discharge is too long to support a causal
connection based solely on temporal proximity. See Brown v. Alabama Dept. of Transp., 597
F.3d 1160, 1182 (11th Cir. 2010)(citing and quoting Thomas v. Cooper Lighting, Inc., 506
F.3d 1361, 1364 (11th Cir. 2008)). “Thus, in the absence of other evidence tending to show
causation, if there is a substantial delay between the protected expression and the adverse
action, the complaint of retaliation fails as a matter of law.” Id.
She also points to the EEOC on-site investigation as “the trigger for Sanso’s renewed
campaign against[her].” (Doc. 38 at 31.) Nothing in the record indicates that Peterson

42

participated in any way in the EEOC on-site investigation.

Therefore, the on-site

investigation cannot be considered “protected activity” for purposes of determining a
connection between protected activity and adverse action. See Clark County School Dist. v.
Breeden, 532 U.S. 268, 273 (2001)(noting as “utterly implausible” the plaintiff’s “suggestion
that the EEOC’s issuance of a right-to-sue letter – an action in which the employee takes no
part – is a protected activity of the employee”); Gray v. City of Montgomery, 756 F. Supp.
2d 1339, 1350-51 (M.D. Ala. 2010)(mere pendency of lawsuit is not “protected activity;”
noting that a plaintiff could have multiple instances of protected activity at different stages
of a lawsuit).
The court finds that Peterson has not established a causal connection between the
alleged protected activity and her termination. Therefore, the court finds that defendant’s
Motion for Summary Judgment is due to be granted and plaintiff’s retaliation claim is due
to be dismissed.
Nevertheless, even if the court assumes a prima facie case of retaliation, Peterson’s
retaliation claim is due to be dismissed because she cannot establish that the reasons for her
termination are a pretext for unlawful retaliation based on her protected activity.
4. Articulated Non-discriminatory Reasons and Pretext
The Foundation contends that Peterson’s race discrimination and retaliation claims
are due to be dismissed because its “reasons for [her termination] were legitimate business
judgments that had nothing to do with race or retaliation.” (Doc. 23 at 28-29.) Peterson

43

disagrees and argues that she has presented evidence that shows defendant’s articulated
reasons for her termination are unworthy of credence and that the real reason she was
discharged was her race and/or retaliation. (See doc. 38 at 24-31.)
The law in this circuit is well established: A plaintiff may not establish pretext merely
by quarreling with the wisdom of the alleged discriminatory and/or retaliatory decision.
Combs v. Plantation Patterns, 106 F.3d 1519, 1543 (11th Cir. 1997). “A plaintiff may show
pretext by either directly persuading the court that a discriminatory reason motivated the
employer, or by indirectly showing that the employer’s proffered explanation is unworthy of
credence.” Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248, 256 (1981). The
relevant inquiry on the issue of pretext is “highly focused” – “The district court must, in view
of all the evidence, determine whether the plaintiff has cast sufficient doubt on the
defendant’s proffered nondiscriminatory reasons to permit a reasonable factfinder to
conclude that the employer’s proffered legitimate reasons were not what actually motivated
its conduct.” Combs, 106 F.3d at 1537-38 (11th Cir. 1997)(citing Cooper-Houston v.
Southern Ry. Co., 37 F.3d 603, 605 (11th Cir. 1994)).14 When a defendant offers more than

14

In Combs, the Eleventh Circuit held:

In relying on [the comparator’s] financial improprieties to undermine
[defendant’s] explanation that it based its promotion decision on [the
comparator’s] superior supervisory experience, [plaintiff] confuses
disagreement about the wisdom of an employer’s reason with disbelief about
the existence of that reason and its application in the circumstances.
Reasonable people may disagree about whether persons involved in past
financial improprieties should be made supervisors, but such potential
44

one reason for the challenged action, the plaintiff is entitled to survive summary judgment
if there is sufficient evidence to demonstrate the existence of a genuine issue of fact as to the
truth of each of the employer’s proffered reasons for its challenged action.

Id. at

1529(emphasis added); see also Crawford v. City of Fairburn, 482 F.3d 1305, 1308 (11th
Cir. 2007)(“If the employer proffers more than one legitimate, nondiscriminatory reason, the
plaintiff must rebut each of the reasons to survive a motion for summary judgment.” (citing
Chapman v. AI Transp., 229 F.3d 1012, 1037 (11th Cir. 2000))).
“To satisfy this threshold showing of pretext, a plaintiff may discredit the employer’s
proffered legitimate reasons by showing (1) that the proffered reasons [have] no basis in fact,
(2) that the proffered reasons did not actually motivate the employment decision, or (3) that
they were insufficient to motivate the employment decision.” Walker v. NationsBank of
Florida N.A., 53 F.3d 1548, 1564 (11th Cir. 1995)(Johnson, J, concurring)(citations omitted).
However, “If the proffered reason is one that might motivate a reasonable employer, a

disagreement does not, without more, create a basis to disbelieve an
employer’s explanation that it in fact based its decision on prior non-financial
supervisory experience. [Defendant’s] decision to promote [the comparator]
instead of [plaintiff] may seem to some to be bad business judgment, and to
others to be good business judgment, but federal courts do not sit to
second-guess the business judgment of employers. Stated somewhat
differently, a plaintiff may not establish that an employer’s proffered reason
is pretextual merely by questioning the wisdom of the employer’s reason, at
least not where, as here, the reason is one that might motivate a reasonable
employer.
Combs, 106 F.3d at 1543 (11th Cir. 1997)(emphasis in original).
45

plaintiff cannot recast the reason but must meet it head on and rebut it.” Springer v.
Convergys Customer Management Group Inc., 509 F.3d 1344, 1350 (11th Cir. 2007)(quoting
Wilson v. B/E Aerospace, Inc., 376 F.3d 1079, 1088 (11th Cir.2004)). “In other words, it
does not matter whether the plaintiff is actually innocent of the infraction for which the
adverse employment action is taken; the only relevant inquiry is whether the employer
believes he is guilty.” Masso v. Miami-Dade County, 247 Fed. Appx. 190, 192 (11th Cir.
Sept. 6, 2007) (emphasis added). “No matter how medieval [an employer’s] practices, no
matter how high-handed its decisional process, no matter how mistaken [its] managers, [Title
VII and § 1981 do] not interfere. Rather [the court’s] inquiry is limited to whether the
employer gave an honest explanation of its behavior.” Chapman, 229 F.3d at 1030 (quoting
Elrod v. Sears, Roebuck & Co., 939 F.2d 1466, 1470 (11th Cir. 1991))(other citations
omitted).
Peterson contends that she “has refuted each and every reason that led to her
termination other than the HIPAA violations,” and a white employee, Aubrey Gamble, had
two HIPAA violations and was not terminated. (Doc. 38 at 24.) However, the court finds
the record contains no evidence of disputed issues of material fact sufficient to allow a
reasonable jury to find that all of the Foundation’s articulated reasons for Peterson’s
termination are unworthy of credence.
As set forth above, the termination memorandum listed a number “current issues,” not
including the two HIPAA violations, that were the Foundation’s reasons for terminating

46

Peterson: (1) leaving check-out desk unattended; (2) continuing “interpersonal working
relationship issues” with her coworkers; (3) failing to follow protocol when accepting
checks; (4) another patient complaint; and (5) lack of productivity as compared to her
coworker Carter. (See doc. 31 at 7-9.)
a. Left Check-Out Desk Unattended
One of the current issues on the termination memorandum was the incident on January
25, 2013, when, according to Sanso, Peterson was “away from [her] desk for 10 minutes and
had not taken any steps to re-route patients.” (Doc. 31 at 9.) Sanso noted that Peterson told
her that no one was at the check-in desk, but Sanso had “observed that the check-in staff was
present.” (Id.)
In opposition to the Foundation’s Motion for Summary Judgment, Peterson argues,
State of Alabama Department of Labor Hearings and Appeals Division found that Plaintiff
did not violate her employer’s standards in the last event that led to her termination, i.e., her
leaving her work station to go to the restroom because of a medical condition on January 25,
2013.” (Doc. 38 at 25 [citing doc. 39-1].) As set forth above, the court notes that DIR found
Peterson had followed appropriate procedures and was away from her desk for only 3
minutes. Significantly, it did not find that Sanso made up the incident – she saw Peterson
was not at the desk when patients were present and she had not asked any employee at the
check-in desk to cover for her. Although the court credits the facts as found by DIR, these

47

facts are not sufficient to create a question of fact as to whether or not Peterson’s absence
from the check-out desk was one of the reasons Sanso decided to terminate her.
As the Alabama Court of Civil Appeals has held:
Although a conclusion that an employee committed misconduct
necessarily compels the conclusion that a legitimate reason for discharge
exists, the reverse is not also true. Because Alabama law does not require that
an employer have a “good” reason for discharging an employee, the fact that
an employee was not discharged for misconduct does not compel the
conclusion that the employer had no valid reason to discharge him or her or
that the employer wrongfully discharged the employee. Thus, the conclusion
that [plaintiff] had not committed misconduct sufficient to disqualify him from
receiving benefits under the unemployment-compensation statute cannot be
used to compel the conclusion that [defendant] is unable to proffer [plaintiff’s]
violation of the attendance, bereavement-leave, and serious-misconduct
policies as legitimate reasons for [plaintiff’s] discharge. That is, even if
[plaintiff’s] violation of those policies does not rise to the level of misconduct
under the unemployment-compensation statute, that fact does not compel the
conclusion that [defendant’s] reliance on [plaintiff’s] violation of those
policies does not form a legitimate reason for the termination of [plaintiff’s]
employment and most assuredly does not compel the conclusion that
[defendant’s] proffered reason is a pretext for an otherwise impermissible
discharge of [plaintiff] from [defendant’s] employment in retaliation for filing
a workers’ compensation claim.
Hale v. Hyundai Motor Mfg. Alabama, 86 So. 3d 1015, 1025 (Ala. Civ. App. 2012).
The court finds that the DIR decision does not compel a conclusion that Sanso did not
rely upon Peterson’s absence from the check-out desk without informing the check-in
personnel when patients were present as a reason for her decision to terminate plaintiff. The
court notes that the record contains evidence that Sanso had coached and counseled Peterson
about leaving the check-out desk unattended, taking lengthy and/or unscheduled breaks, and
not communicating with other employees. Indeed, Sanso had recently received complaints
48

from Carter that Peterson was leaving the check-out desk at times other than her scheduled
break time. Peterson admits she left the check-out desk unattended and that she did not
notify the check-in employees. Even if she had good and/or legitimate reasons for her
actions, these reasons do not rebut head-on this articulated reason for her termination. The
fact that Sanso may have been mistaken about the circumstances or length of Peterson’s
break or that she acted harshly or unfairly, under these circumstances, does not support a
finding that she has lied about Peterson’s absence from the check-out desk motivating her
termination decision.
b. Interpersonal Conflicts
The termination memorandum lists the January 2013 meeting with Peterson, during
which Wilson and Sanso discussed her continuing problems with coworkers and “the
importance of making the patient/customer priority over all other ‘duties’.” (Doc. 31 at 8.)
Carter had made recent complaints about Peterson’s behavior that echoed the prior
complaints of Peterson’s coworkers. Peterson argues that she did not have any conflicts with
her coworkers based on the fact that Sanso had told the EEOC in December 2012 that there
were no teamwork problems. (Doc. 38 at 22 [citing doc. 25 at 149].) The record evidence
reveals that Sanso received the complaints from Carter and from Peterson after the EEOC’s
on-site visit, demonstrating on-going tension between these employees. Given the significant
history of tension and conflict between Peterson and other employees, the court finds

49

Peterson has not presented substantial evidence that this articulated reason for her
termination was a lie.
c. Unsatisfactory Job Performance/Failure to Follow Protocol
The termination memorandum states:
In December we received a report from the Patient Ambulatory Office
indicating there was a returned check for which you did not obtain the required
information, which means we may incur financial loss from services rendered.
During my January review of cash batches and receipts, I found three (3)
additional returned checks for which you did not obtain the required
information. This may result in a financial loss for the clinic if payment is not
received. You are well aware of the protocol to obtain specific information for
each check received.

(Doc. 31 at 8.) Peterson does not rebut this reason for her termination. She states only that
she was not responsible for returned checks and that she knew the proper protocol for
accepting checks, including the requirement that specific information, such as driver’s
license number, must appear on the front of the check. These facts do not rebut Sanso’s
testimony that she had at least four checks without the proper information and that this was
one of the reasons she decided to terminate Peterson. Indeed, the evidence of the improper
processing of these checks indicates that Sanso had reason to believe that Peterson was not
following established protocol despite knowing the proper procedure and that her failure to
record the driver’s license information on a check was an on-going concern with her job
performance.

50

d. Patient Complaint
The termination memorandum stated that Sanso received a patient complaint that
Peterson had been rude during check-out. (Doc. 31 at 7.) Peterson denies that she was rude
to a patient; however, she has not presented evidence that Sanso did not receive such a report.
Moreover, the court notes that the complaint that Peterson was rude is similar in nature to
other complaints Sanso had received about Peterson’s interaction with patients and
coworkers. The court finds that Peterson has not rebutted this reason for her termination.
e. Productivity
The termination memorandum states that one of the current issues with Peterson’s job
performance was that her productivity was much lower that her coworker’s productivity, and
“Inequality with workload causes co-worker tension when you are not perceived as being
proactive or responsive with your job responsibilities.” (Doc. 31 at 8.) The court notes that
on January 10, 2013, Peterson performed less than 50% as many transactions as Carter.
Peterson contends that Carter, her coworker, told her to do all the precertifications and this
caused her numbers to be lower than Carter’s numbers. Assuming Sanso was responsible for
the adjustment in job duties and further assuming she was aware that precertifications
required a significant amount of time to complete, a jury could find that Sanso had reason to
believe that Peterson was not unproductive but had merely been otherwise occupied on the
days at issue. Therefore, the court finds an issue of fact as to whether this articulated reason
for Peterson’s termination was insufficient to motivate Sanso to terminate Peterson. See

51

Walker, 53 F.3d at 1564. Nevertheless, assuming evidence of pretext of this single reason
is insufficient to establish the remaining reasons are pretext and insufficient to withstand the
Foundation’s Motion for Summary Judgment. See Crawford, 482 F.3d at 1308-09.
Based on the foregoing, the court finds that Peterson has not shown that all the reason
for her termination were a pretext for unlawful discrimination and/or retaliation. Therefore,
the Foundation’s Motion for Summary Judgment will be granted and Peterson’s Title VII and
§ 1981 termination and retaliation claims will be dismissed.
B. STATE-LAW CLAIM – RETALIATORY DISCHARGE
Peterson alleged that she was terminated because she had filed a claim for
unemployment benefits. Alabama law provides, “No employee shall be terminated by an
employer solely because the employee has instituted or maintained any action against the
employer to recover workers’ compensation benefits . . . .” Ala. Code § 25-5-11.1 (emphasis
added).
In Flint [Construction Co. v. Hall, 904 So. 2d 236 (Ala. 2004)], the
Alabama Supreme Court summarized, and to some extent clarified, how courts
should approach claims under § 25-5-11.1 on a summary-judgment motion.
First, a plaintiff must establish a prima-facie case of retaliatory discharge
under § 25-5-11.1 by proving “1) an employment relationship, 2) an on-the-job
injury, 3) knowledge on the part of the employer of the on-the-job injury, and
4) subsequent termination of employment based solely upon the employee’s
on-the-job injury and the filing of a workers’ compensation claim.” [Flint
Construction Co., 904 So. 2d at] 247 (quoting Alabama Power Co. v. Aldridge,
854 So. 2d 554, 563 (Ala. 2002)). Although a plaintiff must ultimately prove
that the workers’ compensation claim was the sole cause for termination in
order to prevail, the fourth element of the prima-facie case may be established
exclusively through circumstantial evidence that shows a causal link between
the workers’ compensation claim and the discharge. Id. at 248.
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To rebut the presumption of retaliation created by the prima-facie case,
the employer may then offer legitimate reasons for the termination. Id. at 250.
The plaintiff then bears the burden of showing that the stated legitimate reason
is not true; if the plaintiff calls into question the validity of the stated reason,
the plaintiff creates a jury question as to whether the workers’ compensation
claim was, in fact, the sole reason for termination. Id.
Thus, at the prima-facie-case stage, a plaintiff need not affirmatively
prove that the workers’ compensation claim was the “sole” cause of
termination, but may use circumstantial evidence to create a presumption of
retaliation; the question of whether the workers’ compensation claim was the
“sole cause” of retaliation is appropriately left to the pretext inquiry. See id.
...
[At the pretext stage,] “[a]n employer’s stated basis for a discharge is
sufficient as a matter of law when the underlying facts surrounding the stated
basis for the discharge are undisputed and there is no substantial evidence
indicating (a) that the stated basis has been applied in a discriminatory manner
to employees who have filed workers' compensation claims, (b) that the stated
basis conflicts with express company policy on grounds for discharge, or (c)
that the employer has disavowed the stated reason or has otherwise
acknowledged its pretextual status.” [Id.] at 252 (quoting Aldridge, 854 So.
2d at 568).
Smith v. CPI, Corp., 417 F. Supp. 2d 1253, 1256 (M.D. Ala. 2006).
The parties generally agree that Peterson can establish the first three parts of the prima
facie case of retaliatory discharge; however, they disagree as to whether she can establish that
she was terminated solely because of her on-the-job injury and her filing of a worker’s
compensation claim. The Alabama Supreme Court has “identified . . . certain factors that can
be considered as circumstantial evidence of a causal connection between an employee’s
filing a workers’ compensation claim and that employee’s discharge,” including “proximity
in time between the filing of the workers’ compensation claim and discharge,” as well as:
53

1) knowledge of the compensation claim by those making the decision on
termination, 2) expression of a negative attitude toward the employee’s injured
condition, 3) failure to adhere to established company policy, 4) discriminatory
treatment in comparison to similarly situated employees, 5) sudden changes in
an employee’s work performance evaluations following a workers’
compensation claim, and 6) evidence that the stated reason for the discharge
was false.
Id. at 248 (quoting Aldridge, 854 So. 2d at 564-65 (quoting Chhim v. University of Houston,
76 S.W.3d 210, 218 (Tex. Ct. App. 2002); Rebarchek v. Farmers Coop. Elevator &
Mercantile Ass’n, 35 P.3d 892, 899 (Kan. 2001))).
Peterson was terminated over a year after her on-the-job injury and six-months after
she returned to work from surgery. Although she alleges that her coworkers were unhappy
she had missed work for reasons related to her injury, she has presented no evidence that
Sanso, the decision maker, expressed any negative attitude toward her “injured condition.”
She has pointed to no discriminatory treatment in comparison to similarly-situated employees
or a failure to adhere to some company policy. Moreover, as set forth above, Peterson has
not presented evidence that all the reasons for her termination were pretextual. Based on the
evidence, the court finds that no reasonable jury could find that Peterson was terminated
solely because of her on-the-job injury or her workers’ compensation claim, and, therefore,
Peterson has not demonstrated a prima facie case of retaliatory discharge.
The Foundation’s Motion for Summary Judgment will be granted and Peterson’s
retaliatory discharge claim will be dismissed.

54

CONCLUSION
For the foregoing reasons, the court is of the opinion that there are no material facts
in dispute and the Foundation is entitled to judgment as a matter of law. An Order granting
the Foundation’s Motion for Summary Judgment, (doc. 22), will be entered
contemporaneously with this Memorandum Opinion.
DONE this 30th day of September, 2014.

SHARON LOVELACE BLACKBURN
UNITED STATES DISTRICT JUDGE

55