Donald v. UAB Hospital Management LLC
MEMORANDUM OPINION. Signed by Judge William M Acker, Jr on 10/9/2015. (AVC)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
LATOSHIA E. DONALD,
UAB HOSPITAL MANAGEMENT, LLC, }
CIVIL ACTION NO.
Before the court are the motion for summary judgment (Doc. 27)
and motion to strike (Doc. 34) filed by defendant UAB Hospital
Management, LLC (“UAB”). For the reasons stated below, the motion
for summary judgment will be granted in part and denied in part,
and the motion to strike will be granted.
Plaintiff Latoshia Donald (“Donald”), an African-American
female, worked for UAB as a nurse in the Trauma Burn Intensive Care
Unit (“TBICU”) from October 2012 until April 2013. (Docs. 25 at 2,
¶ 9, 29-2 at 32:4-10, 124). Donald’s immediate supervisor was
Tywanda Coates, who is also African-American. (Docs. 29-2 at 32:1113, 29-3 at 54:20-22).
Donald contends that, throughout her employment with UAB, she
and the other African-American nurses in the TBICU were treated
The facts are presented in the light most favorable to
Donald, the non-movant. Skrtich v. Thornton, 280 F.3d 1295, 1299
(11th Cir. 2002).
less favorably than the white nurses were treated, and a racial
instance, when Donald’s white former supervisor noticed that all of
the African-Americans were assigned to work near each other, the
supervisor remarked, “How did that happen? I wonder if any work is
going to be done.” (Doc. 29-2 at 34:15-17). When that supervisor
was leaving UAB, the white nurses organized a going-away party for
him and brought supplies but did not inform the African-Americans
or ask them to bring anything to the event, causing them to be
embarrassed. (Doc. 29-2 at 35:1-6). On one occasion, Donald needed
help with an assignment, but the white “float” nurses, who were
supposed to help nurses assigned to particular patients as needed,
did not help her, instead choosing to watch her from the door of
the patient’s room. (Doc. 29-2 at 36:14-37:5). The white nurses
were also more lenient with the families of white patients than
with black families, allowing the white families to exceed the size
limitation for visits but asking the black families to leave.
(Docs. 29-2 at 46:7-10, 32-1 at 6, 45').
More notable are the African-Americans’ interactions with
Coates. Donald testified that Coates’s demeanor toward the AfricanAmerican nurses was more harsh than with the white nurses; she was
friendly to the whites but dismissive with the African-Americans.
(Doc. 29-2 at 78:14-18). Whenever an incident occurred for which an
African-American nurse potentially bore responsibility, Coates was
aggressive and accusatory, seemingly having already decided that
the African-American was at fault. (Doc. 29-2 at 77:6-9). Coates
frequently called the African-Americans into her office to discuss
potential disciplinary issues. (Doc. 29-2 at 52:9-14).
In March 2013, two of the African-American nurses, Caitlyn
Lett and Ashley Byers, were involved in a verbal altercation in the
TBICU, and Donald attempted to calm them. (Doc. 29-2 at 40:1441:11). After the incident, Coates changed the shift patterns of
Lett and Byers so that they would no longer be working together or
on their current shift. (Doc. 29-2 at 42:15-18). UAB contends that
the pattern change came as a result of this incident, but Donald
believes otherwise. According to Donald, Coates told her that she
was going to separate the African-Americans because they were
intimidating the white nurses. (Doc. 29-2 at 38:10-19). Coates
admits that she intended to move more nurses than only Byers and
Lett. (Doc. 29-2 at 120-21). Byers testified that Coates informed
her of the plan to separate the African-American nurses, even
before the incident with Lett, because the white nurses were
“scared” of the African-American nurses. (Doc. 32-2 at 3, ¶ 9).
The African-American nurses (Donald, Lett, Byers, and Jasmine
Frey) attended a meeting on April 8, 2013, with Melissa Levesque,
a white Human Resources representative. (Docs. 29-2 at 45:11-16,
29-3 at 52:7-9). They complained during the meeting about all of
the above-mentioned issues, focusing especially on their treatment
by Coates and the shift changes. (Doc. 32-1 at 6-7). The group,
including Donald specifically, complained several times that this
treatment was on account of their race, but Levesque repeatedly
attempted to downplay the racial aspects of their complaints.
(Id.). Levesque at one point stated that she might be scared or
intimidated by the group if she felt outnumbered. (Doc. 32-1 at 7,
1'-3'). Donald testified that the group felt as if Levesque treated
them as the problem during the meeting. (Doc. 29-2 at 47:19-22).
seniority of any of the group members and, according to Byers,
seemed particularly displeased that Donald characterized the issues
as race-based. (Docs. 32-1 at 7, 49', 32-2 at 3, ¶ 6). Levesque
called Coates after the meeting, but Coates testified that Levesque
did not mention any allegations of discrimination. (Doc. 29-3 at
Three days later, on the night of April 11, 2013, a patient
and her family made a complaint against a nurse, identifying the
nurse only as being black. (Doc. 29-3 at 24:8-19, 64). Coates
testified that she determined
from the assignment sheet that the
complaint must have been against Donald. (Doc. 29-3 at 38:7-18).
The assignment sheet listed Donald as having been assigned to the
patient’s bed, but the on-duty float nurses, one of whom was black,
also had responsibility for the patient and could have been in the
room. (Docs. 29-11 at 2, 32-1 at 3). The patient and family
complained to Coates that the nurse had made several rude comments,
handled the patient roughly, did not acknowledge the family, did
not properly answer their questions or give them updates, and was
mean to her coworkers (identified as “two black guys”). (Docs. 29-2
at 60:14-15, 29-3 at 64). The patient said that she was afraid to
complain because of what the nurse might do to her. If the patient
could have reached the phone, she said she would have called 911.
(Doc. 29-3 at 64). The patient’s minister also said that the nurse
was “not very friendly.” (Id.).
Coates forwarded the information to Levesque. (Id.). Levesque
recommended that, if the allegations were accurate, Donald should
be terminated while she was still within her probationary period.
(Doc. 29-3 at 65). Under UAB’s probationary policy, an employee may
be dismissed at any time within the first six months of employment
if her performance is “not satisfactory.” (Doc. 29-16 at 20).
Donald’s probationary period was set to expire in only a few days.
(Doc. 29-2 at 62:11-14). Coates and Levesque then prepared a
termination letter. (Doc. 29-3 at 69-72).
Coates met with Donald before her next shift. (Doc. 29-3 at
28:19-22). Coates asked Donald to tell her about her shift the
night before. (Doc. 29-2 at 59:17-19). Donald took this to be a
question about some abnormal lab work, so she only addressed that
issue. (Doc. 29-2 at 59:19-21). Coates found Donald’s answer
insufficient because she failed to mention the patient complaint,
but Donald testified that she had no knowledge of the patient
complaint and that she did not do what the patient and family
accused her of. (Docs. 29-2 at 58:14-60:2, 29-3 at 29:12-30:23).
Coates then revealed the termination letter to Donald. (Doc. 29-2
termination, but Coates did not believe her. (Doc. 29-2 at 60:561:18). Coates testified that she had an honest and good faith
belief that the complaint was true, primarily because she believed
that the patient and family had no reason to lie about the
complaint. (Doc. 29-3 at 50:20-51:5, 57:18-19). Coates made this
decision even though she had never known Donald to lie and had
previously told Donald that some patient complaints are just about
race. (Docs. 29-2 at 55:17-20, 29-3 at 57:20-22). Coates also
testified that she did not consider utilizing UAB’s progressive
discipline policy because of the egregiousness of the complaint,
despite Donald’s otherwise satisfactory performance and lack of
prior discipline. (Doc. 29-3 at 17:4-10, 36:3-9).
Donald filed a Charge of Discrimination with the EEOC on June
10, 2013, and received her right-to-sue letter on April 11, 2014.
(Doc. 1-1). She filed suit against UAB on April 21, 2014, alleging
Title VII claims of a racially hostile work environment, race
discrimination, and retaliation. (Doc. 1). On June 29, 2015, the
court ordered Donald to dismiss either her race discrimination or
retaliation claim in accordance with the Supreme Court’s decision
in University of Texas Southwestern Medical Center v. Nassar, 133
S. Ct. 2517 (2013). (Doc. 24). Donald complied on July 6, 2015,
dismissing her race discrimination claim. (Doc. 25). UAB moved for
summary judgment on August 10, 2015, seeking dismissal of Donald’s
remaining claims. (Doc. 27). On September 14, 2015, UAB moved to
strike a portion of Donald’s declaration submitted in support of
her opposition to UAB’s motion for summary judgment. (Doc. 34).
A. Motion to Strike
Fed. R. Civ. P. 56(c)(4) provides that a declaration submitted
to support or oppose a summary judgment motion must “set out facts
that would be admissible in evidence.” A party may object to
submitted materials if those materials “cannot be presented in a
form that would be admissible in evidence.” Fed. R. Civ. P.
56(c)(2). Applying this rule, the Eleventh Circuit has held that
“inadmissible hearsay ‘cannot be considered on a motion for summary
judgment.’” Macuba v. Deboer, 193 F.3d 1316, 1323 (11th Cir. 1999)
(footnote omitted) (quoting Garside v. Osco Drug, Inc., 895 F.2d
46, 50 (1st Cir. 1990)).
UAB has moved to strike one paragraph of Donald’s declaration,
regarding a conversation that Donald had with the son of the
complaining patient. According to the declaration, the son wanted
some information about his mother directly from Donald because his
aunt (the complaining sister) “has a way of fabricating things.”
(Doc. 32-1 at 4).
UAB contends that the son’s statement is inadmissible hearsay.
Donald attempts to defend the statement by invoking two hearsay
exceptions. The first is Fed. R. Evid. 803(21), under which “[a]
concerning the person’s character” is admissible. According to
Donald, the son’s statement regards the reputation of his aunt’s
statement, however, provides no indication of whether he was
talking about the aunt’s reputation among some community or just
defined,” laying a trustworthy foundation. Blackburn v. United
Parcel Serv., Inc., 179 F.3d 81, 100 (3d Cir. 1999). Here, however,
there is no evidence that the son was drawing from a community at
all, much less a community that is well-defined. This exception
does not render the statement admissible.
Donald also invokes Fed. R. Evid. 803(3), arguing that the
statement is admissible as “[a] statement of the declarant’s thenexisting state of mind (such as motive . . .).” According to
Donald, the statement shows the son’s motive for speaking to
Donald: he wanted to verify the information that his aunt told him.
“However, before a statement, otherwise hearsay, can be admitted
under 803(3) to show the declarant's then existing state of mind,
the declarant's state of mind must be a relevant issue in the
case.” United States v. Scrima, 819 F.2d 996, 1000 (11th Cir.
1987). Donald does not seek admission of the statement in order to
show the son’s state of mind, but only to show that the patient
complaint is unreliable. Accordingly, UAB’s motion to strike will
B. Motion for Summary Judgment
Summary judgment is appropriate when “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). The court must
“examine the evidence in the light most favorable to the non-moving
party,” drawing all inferences in favor of such party. Earl v.
Mervyns, Inc., 207 F.3d 1361, 1365 (11th Cir. 2000). “[A] ‘judge’s
function’ at summary judgment is not ‘to weigh the evidence and
determine the truth of the matter but to determine whether there is
a genuine issue for trial.’” Tolan v. Cotton, 134 S. Ct. 1861, 1866
(2014) (per curiam) (quoting Anderson v Liberty Lobby, Inc., 477
U.S. 242, 249 (1986)).
1. Hostile Work Environment
discriminate against any individual with respect to his . . .
terms, conditions, or privileges of employment, because of such
extends to the creation of a racially hostile work environment.
Vance v. Ball State Univ., 133 S. Ct. 2434, 2441 (2013). For such
a claim to be actionable, a plaintiff must prove five elements:
(1) that he is a member of a protected class; (2) that he
was subjected to unwelcome racial harassment; (3) that
the harassment was based on his race; (4) that the
harassment was severe or pervasive enough to alter the
terms and conditions of his employment and create a
discriminatorily abusive working environment; and (5)
that the employer is responsible for the environment
under a theory of either vicarious or direct liability.
Adams v. Austal, U.S.A., LLC, 754 F.3d 1240, 1248-49 (11th Cir.
2014). UAB concedes all but the fourth element.
“The determination of whether race-based harassment was so
severe or pervasive as to alter the conditions of employment
includes both subjective and objective components.” Jones v. UPS
Ground Freight, 633 F.3d 1283, 1299 (11th Cir. 2012) (quoting EEOC
v. Xerxes Corp., 639 F.3d 658, 676 (4th Cir. 2011)). At the summary
judgment stage, however, the subjective requirements should be
assumed to be satisfied, and the court does so here. See id. When
evaluating the objective component, the Supreme Court has provided
four non-exhaustive factors to consider: “(1) the frequency of the
conduct; (2) the severity of the conduct; (3) whether the conduct
is physically threatening or humiliating, or a mere offensive
utterance; and (4) whether the conduct unreasonably interferes with
(quoting Mendoza v. Borden, 195 F.3d 1238, 1246 (11th Cir. 1999)
(en banc)). “The courts should examine the conduct in context, not
circumstances whether the harassing conduct is sufficiently severe
or pervasive to alter the terms or conditions of the plaintiff's
employment and create a hostile or abusive working environment.”
Mendoza, 195 F.3d at 1246.
The court finds the Eleventh Circuit’s recent decision in
Adams to be instructive. In that case, the plaintiffs complained of
pervasive racist conduct at the defendant’s facility, including
nooses being displayed, racist and sexually laden graffiti drawn on
the walls of bathrooms and boats, repeated use of racist slurs and
comments, kicking of an African-American, and pervasive Confederate
plaintiffs, the Eleventh Circuit found that only seven of them
presented an issue of fact as to severity or pervasiveness. Id. at
1251-57. The court primarily made this determination based on the
conduct to which the plaintiffs were actually exposed and the
extent to which it was directed at them. For example, a plaintiff
who discovered two nooses, was the subject of a crude drawing, and
who personally witnessed racist comments, physical abuse, and
pervasive Confederate flag apparel stated a sufficient claim. Id.
at 1251-52. The same is true of plaintiffs who were the subject of
observed the above-described conduct. Id. at 1252-54. However, the
court found that plaintiffs who were not the subject of racist
slurs and comments and did not discover the nooses, but only heard
about them, did not present an issue of fact. The court found this
despite the fact that these plaintiffs observed racist graffiti and
Confederate flag apparel up to a daily basis, heard racist slurs
and comments being made, and were aware of the nooses being hung.
Id. at 1254-57.
The conduct Donald complains of in this case falls far short
of the conduct complained of by even the losing plaintiffs in
Adams, much less the winning ones. Donald was not subjected to
racist comments or symbols and witnessed no physical harm to any
African-American. Donald has presented no evidence of physical
threats, and the frequency and severity fall far short of the
standard established by the Eleventh Circuit in Adams. At best,
Donald’s complaints amount to “petty slights, minor annoyances, and
simple lack of good manners,” which the Supreme Court has held to
be insufficient. Burlington N. & Santa Fe Ry. Co. v. White, 548
U.S. 53, 68 (2006). Accordingly, Donald’s hostile work environment
claim will be dismissed.
retaliation claims are evaluated under the familiar McDonnell
Telecomms., Inc., 231 F.3d 791, 798 (11th Cir. 2000). “To establish
a prima facie showing of retaliation under Title VII, the plaintiff
must show (1) that she engaged in statutorily protected expression;
(2) that she suffered an adverse employment action; and (3) that
there is some causal relation between the two events.” McCann v.
Tillman, 526 F.3d 1370, 1375 (11th Cir. 2008) (quoting Cooper v.
Southern Co., 390 F.3d 695, 740 (11th Cir. 2004)). If the employee
meets this burden, the burden shifts “to the employer . . . [to]
produc[e] legitimate, [non-retaliatory] reasons for the challenged
employment action.” Combs v. Plantation Patterns, 106 F.3d 1519,
1528 (11th Cir. 1997).
Holifield v. Reno, 115 F.3d 1555, 1564 (11th Cir. 1997) (quoting
Turnes v. Amsouth Bank, NA, 36 F.3d 1057, 1061 (11th Cir. 1994)),
the employee then “bears the burden of showing that the reasons
offered were merely pretext,” Rojas v. Florida, 285 F.3d 1339, 1342
(11th Cir. 2002). An employee may prove pretext “either directly by
persuading the court that a discriminatory reason more likely
motivated the employer or indirectly by showing that the employer’s
proffered explanation is unworthy of credence.” Tex. Dep’t of Cmty.
Affairs v. Burdine, 450 U.S. 248, 256 (1981). “[T]o avoid summary
judgment [the employee] must introduce significantly probative
evidence showing that the asserted reason is merely a pretext for
[retaliation].” Brooks v. Cty. Comm’n, 446 F.3d 1160, 1163 (11th
Cir. 2006) (quoting Clark v. Coats & Clark, Inc., 990 F.2d 1217,
1228 (11th Cir. 1993)).
a. Prima Facie Case
UAB first challenges Donald’s ability to demonstrate a prima
facie case of retaliation. Specifically, UAB disputes that Donald
engaged in protected activity, but if she did, that there is a
causal connection between Donald’s alleged protected activity and
Donald contends that she engaged in protected activity by
participating in the April 8, 2013, meeting with Human Resources
representative Levesque. UAB argues that the meeting does not
constitute protected activity because the EEOC found that the
meeting primarily addressed “general unhappiness and cliques,” not
race discrimination. (Doc. 29-2 at 122). UAB agrees with that
assessment, but the court at the summary judgment stage cannot. An
EEOC finding may or may not be admissible, but it is certainly not
binding. While the audio recording of the meeting evidences some
concerns that are not necessarily race-related, Donald and the
because of their race. (Doc. 32-1 at 6 (37', 44'), 7 (1', 10', 43',
47')). That Levesque attempted to downplay the racial aspects of
their complaints does not change the fact that the complaints were
made. While a jury may agree with UAB, this court cannot find that
this meeting, as a matter of law, did not constitute protected
activity. This prima facie requirement is accordingly met.
UAB next contends, based on three grounds, that Donald has not
demonstrated a causal connection between the HR meeting and her
termination. First, UAB claims that Coates, the decisionmaker, had
meeting, negating any causal connection. See Shannon v. Bellsouth
accepting Coates’s testimony that Levesque did not inform her of
the racial complaints, the court is unpersuaded by UAB’s position
because a jury could easily find that Coates was not the sole
decisionmaker. Viewed in the light most favorable to Donald, the
evidence shows that Coates informed Levesque of the situation and
Levesque, who knew of the racial complaints made in the meeting,
recommended termination. UAB contends that because Coates had the
authority to make the decision on her own, Levesque’s knowledge is
irrelevant, but that position is plainly untenable. The pertinent
inquiry is how the decision actually was made, not how it could
have been made, and a jury could find that Levesque played a part
knowledge requirement is satisfied.
UAB’s next two arguments regarding a causal connection are
somewhat related to each other. UAB correctly argues that Donald
may not rely on temporal proximity alone to establish a causal
connection. See Montgomery v. Bd. of Trs. of the Univ. of Ala., No.
2:12-cv-2148-WMA, 2015 WL 1893471 (N.D. Ala. Apr. 27, 2015).
Donald, however, does not rely solely on temporal proximity.
Instead, Donald would demonstrate a causal connection through the
combination of Levesque’s knowledge of the racial complaints and
involvement in the termination decision, the remarkably close
termination, and the pretextual nature of the termination. UAB
counters with its third reason for a lack of a causal connection:
the patient complaint, not retaliation, was the true reason for
Donald’s termination. Because the parties have essentially combined
the causal connection and pretext inquiries, and because the court
finds that a jury question is presented as to the pretextual nature
of Donald’s termination, the court likewise determines that a jury
could find that an intent to retaliate was the “but-for” cause of
Donald’s termination. See Nassar, 133 S. Ct. 2517.
As stated above, UAB contends that it terminated Donald for a
legitimate, non-retaliatory reason: that she provided poor care to
the complaining patient. Based upon several reasons, Donald argues
actually terminated in retaliation for complaining about racial
discrimination. The court finds that Donald presents an issue of
fact that must be decided by a jury, not the court.
investigation into the patient complaint was quite cursory, which
can demonstrate pretext. See Wolf v. PRD Mgmt., Inc., No. 11–2736,
2013 WL 3949019, at *6 n.8 (D.N.J. Aug. 1, 2013). After Coates was
notified of the patient complaint, she talked to the patient and
her family, determined from the assignment sheet that Donald was
assigned to the patient, and questioned Donald about the incident
in her termination meeting. That was the full extent of the
“investigation.” (Doc. 29-3 at 30:15-19).
The complaints only identified the offending nurse by her
responsibility for the patient, because an African-American float
nurse was on duty that night and certainly could have been in the
patient’s room. Yet, even after Donald denied the conduct of which
she was accused, and even though Coates had never known Donald to
lie, Coates made no inquiry into whether the complaint may have
been about a different nurse. Similarly, the patient complained
that the nurse was rude to her coworkers, identified as “two black
guys.” Donald gave Coates the names of the two men to which the
patient was likely referring, one of whom has since denied that
Donald was rude to him. (Doc. 29-2 at 87:6-14). Even though these
two may have been able to give an eyewitness account, Coates
investigation despite Donald’s repeated denial of the incident,
which Coates disbelieved because, in her mind, the patient and
identified the relevant actors by their race, and Coates previously
told Donald that some patient complaints are only about race.
UAB contends that Donald was given a fair opportunity to
discuss her side of the patient complaint by virtue of Coates’s
open-ended question about Donald’s previous shift, but the court
disagrees. Donald understood Coates’s question to be referencing a
different incident, and by the time Donald discerned what the
question was actually about, Coates was entirely dismissive of her
investigation, a jury could find that UAB’s cursory investigation
shows that the reason for termination was pretextual.
despite UAB’s general progressive discipline policy, (Doc. 29-16 at
complaint. While this fact would not independently demonstrate
pretext, it is another consideration for the jury.
UAB argues that it is shielded by Coates’s testimony that she
believed in good faith that the patient complaint was valid.
investigation or severity of punishment are simply quibbling with
its business judgment and do not demonstrate pretext. The pretext
inquiry exists, however, to determine whether Coates in fact held
that good faith belief, not to quarrel with her judgment. Simply
put, an employer cannot insulate itself from liability simply by
invoking “good faith belief” as magic words. The court is still
tasked with determining the veracity of that assertion.
UAB also contends that Coates’s being the same race as Donald
undercuts any assertion that Donald’s termination was illegitimate.
The court questions whether such an inference would apply in
retaliation cases, but regardless the Supreme Court foreclosed this
argument when it “rejected any conclusive presumption that an
employer will not discriminate against members of his own race,”
Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 78 (1998).
In addition to evidence that UAB’s proffered reason was not
the true reason for the termination, Donald has presented evidence
Military Inst., 595 F. App’x 921, 924-25 (11th Cir. 2014) (“A
reason is not pretextual unless it is shown both that the reason
was false, and that retaliation was the real reason.”). During the
meeting with Levesque, Levesque plainly attempted to discourage the
group from characterizing their issues as race-based. According to
one of the nurses in the meeting, Levesque seemed particularly
displeased when Donald, the member of the group with the least
seniority, “frankly stat[ed] that [they] were being bullied because
of [their] race.” (Doc. 32-2 at 3, ¶ 6). Donald was the only member
of the group on probationary status, meaning that adverse action
could be taken against her with less required justification. Given
these facts, a jury could find that Donald’s termination was
discrimination, not as a result of substandard care to a patient.
Accordingly, summary judgment on the retaliation claim will be
judgment (Doc. 27) will be granted as to Donald’s hostile work
environment claim but denied as to her retaliation claim. UAB’s
motion to strike (Doc. 34) will be granted.
A separate order will be entered.
DONE this 9th day of October, 2015.
WILLIAM M. ACKER, JR.
UNITED STATES DISTRICT JUDGE
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