Thornton v. Birmingham Nursing and Rehabilitation Center East, LLC et al
Filing
37
MEMORANDUM OF DECISION. Signed by Judge James H Hancock on 2/11/2016. (JLC)
FILED
2016 Feb-11 AM 11:13
U.S. DISTRICT COURT
N.D. OF ALABAMA
IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
JACQUELYN THORNTON,
PLAINTIFF,
)
)
VS.
)
BIRMINGHAM NURSING AND
REHABILITATION CENTER
EAST, LLC,
)
DEFENDANT.
2:14-cv-1995-JHH
)
)
MEMORANDUM OF DECISION
The court has before it the December 22, 2015 Motion (Doc. #31) of Defendant
Birmingham Nursing and Rehabilitation Center East, LLC (Birmingham East) for
Summary Judgment. Pursuant to the court’s December 28, 2015 order (Doc. # 34),
the Motion (Doc. #31) for Summary Judgment was deemed submitted, without oral
argument, on February 1, 2016. After careful review of the briefs and admissible
evidence, the court concludes that the Motion (Doc. #31) for Summary Judgment is
due to be granted in full for the following reasons.
I. Procedural History
Plaintiff Jacquelyn Thornton commenced this action on October 17, 2014 by
filing a complaint in this court alleging violations of Title VII of the Civil Rights Act
of 1964, 42 U.S.C. § 2000e et. seq and 42 U.S.C. § 1981 by Defendant Birmingham
East.1 More specifically, Plaintiff contends that she was terminated because of her
race.2 Defendant’s Motion (Doc. #31) for Summary judgment asserts that Plaintiff has
failed to make a prima facie case of race discrimination and, in the alternative,
Plaintiff has failed to rebut Defendant’s legitimate and nondiscriminatory reason for
her termination; therefore, Defendant argues that it is entitled to summary judgment.
Both parties have filed briefs and submitted evidence in support of their
respective positions. Defendant submitted evidence3 (Doc. #33) in support of its own
Motion for Summary Judgment and filed a supporting brief (Doc. #32) on December
22, 2015. On January 21, 2016, Plaintiff filed a brief (Doc. #35) in opposition to
Defendant’s Motion for Summary Judgment. On February 1, 2016, Defendant filed
a reply (Doc. #36) brief in support of its Motion for Summary Judgment. All briefs
and evidence have been considered by the court in making its determination on the
Motion (Doc. #31) for Summary Judgment.
1
The original complaint also named Melody Burch as a Defendant, but the claims
against her were dismissed by the court on January 30, 2015. (See Doc. #16.)
2
The original complaint contained a number of other causes of actions, which were
dismissed by the court on January 30, 2015. (See Doc. #16.)
3
Defendant submitted the following evidence in support of summary judgment:
deposition of Jacquelyn Thornton, including exhibits; deposition of Melody Burch, including
exhibits; declaration of Melody Burch, including exhibits; certified copy of Plaintiff’s
unemployment compensation appeals hearing.
2
II. Standards for Evaluating a Summary Judgment Motion
Under Federal Rule of Civil Procedure 56(c), summary judgment is proper “if
the pleadings, depositions, answers to interrogatories, and admissions on file, together
with the affidavits, if any, show that there is no genuine issue as to any material fact
and that the moving party is entitled to judgment as a matter of law.” Celotex Corp.
v. Catrett, 477 U.S. 317, 322 (1986); Chapman v. AI Transport, 229 F.3d 1012, 1023
(11th Cir. 2000) The party asking for summary judgment always bears the initial
responsibility of informing the court of the basis for its motion and identifying those
portions of the pleadings or filings which it believes demonstrate the absence of a
genuine issue of material fact. Celotex Corp., 477 U.S. at 323. Once the moving
party has met his burden, Rule 56(e) requires the nonmoving party to go beyond the
pleadings and by his own affidavits, or by the depositions, answers to interrogatories,
and admissions of file, designate specific facts showing that there is a genuine issue
for trial. Id. at 324.
The substantive law will identify which facts are material and which are
irrelevant. Chapman, 229 F.3d at 1023; Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248 (1986). All reasonable doubts about the facts and all justifiable inferences
are resolved in favor of the non-movant. Chapman, 229 F.3d at 1023; Fitzpatrick v.
City of Atlanta, 2 F.3d 1112, 1115 (11th Cir. 1993). A dispute is genuine “if the
3
evidence is such that a reasonable jury could return a verdict for the nonmoving
party.” Anderson, 477 U.S. at 248; Chapman, 229 F.3d at 1023. If the evidence is
merely colorable, or is not significantly probative, summary judgment may be
granted. Anderson, 477 U.S. at 249. The method used by the party moving for
summary judgment to discharge its initial burden depends on whether that party bears
the burden of proof on the issue at trial. See Fitzpatrick, 2 F.3d at 1115-17 (citing
United States v. Four Parcels of Real Property, 941 F.2d 1428 (11th Cir. 1991)(en
banc)). If the moving party bears the burden of proof at trial, then it can only meet
its initial burden on summary judgment by coming forward with positive evidence
demonstrating the absence of a genuine issue of material fact; i.e. facts that would
entitle it to a directed verdict if not controverted at trial. Fitzpatrick, 2 F.3d at 1115.
Once the moving party makes such a showing, the burden shifts to the non-moving
party to produce significant, probative evidence demonstrating a genuine issue for
trial.
If the moving party does not bear the burden of proof at trial, it can satisfy its
initial burden on summary judgment in either of two ways. First, the moving party
may produce affirmative evidence negating a material fact, thus demonstrating that
the non-moving party will be unable to prove its case at trial. Once the moving party
satisfies its burden using this method, the non-moving party must respond with
4
positive evidence sufficient to resist a motion for directed verdict at trial.
The second method by which the moving party who does not bear the burden
of proof at trial can satisfy its initial burden on summary judgment is to affirmatively
show the absence of evidence in the record to support a judgment for the non-moving
party on the issue in question. This method requires more than a simple statement
that the non-moving party cannot meet its burden at trial but does not require
evidence negating the non-movant’s claim; it simply requires the movant to point out
to the district court that there is an absence of evidence to support the non-moving
party’s case. Fitzpatrick, 2 F.3d at 1115-16. If the movant meets its initial burden by
using this second method, the non-moving party may either point out to the court
record evidence, overlooked or ignored by the movant, sufficient to withstand a
directed verdict, or the non-moving party may come forward with additional evidence
sufficient to withstand a directed verdict motion at trial based on the alleged
evidentiary deficiency. However, when responding, the non-movant can no longer
rest on mere allegations, but must set forth evidence of specific facts. Lewis v.
Casey, 518 U.S. 343, 358 (1996) (citing Lujan v. Defenders of Wildlife, 504 U.S.
555, 561 (1992)).
5
III. Relevant Undisputed Facts4
A. Birmingham East Nursing and Rehabilitation Center East
Defendant Birmingham East is a long-term care nursing facility located in the
Centerpoint area of Birmingham, Alabama. (Burch Aff. ¶ 3.) Birmingham East
provides nursing and rehabilitative care to a diverse group of elderly and/or infirm
residents. (Thornton Dep. at 41-42.) Approximately 140 people are employed at
Birmingham East, including 94 employees in the nursing department who provide
care to residents on a daily basis. (Burch Aff. ¶ 4.) The facility is divided into three
units or wings -- the South Wing, North Wing, and Transitional Care Unit. (Id. ¶ 3.)
At all relevant times, Melody Burch (Caucasian) was the facility’s Executive
Director, Sandy Copeland (Caucasian) was the Director of Nursing Services, and
Leslie Watkins (Caucasian) was the Assistant Director of Nursing Services. (Id. ¶¶
1,2,10.)
As a long-term care nursing facility, Birmingham East is regulated by the
Center for Medicare and Medicaid Services (CMS) and the Alabama Department of
Public Health (ADPH). (Id. ¶ 6.) To remain licensed and to properly protect the
residents residing at its facility, Birmingham East must comply with specific
4
Facts are undisputed unless otherwise expressly noted. If the facts are in dispute,
they are stated in the manner most favorable to the plaintiff. See Fitzpatrick, 20 F.3d at 1115.
6
regulations promulgated by CMS and ADPH that mandate the process for promptly
investigating and reporting allegations of resident abuse. (Id.) Accordingly,
Birmingham East frequently trains all employees at orientation and throughout their
employment on its policies and procedures for reporting allegations of resident abuse.
(Burch Dep. at 19-23.).
B. Plaintiff’s Employment at Birmingham East
Plaintiff Jacquelyn Thornton (African American), a Licensed Practical Nurse,
was hired by Birmingham East as an LPN Charge Nurse on May 31, 2012. (Thornton
Dep. at 49-50; Burch Aff. ¶ 7.) Thornton primarily worked the 3:00 pm to 11:00 pm
shift on the South Wing. (Thornton Dep. at 44-45.) She was responsible for
providing
nursing
care to the facility’s residents in accordance with
Birmingham East’s resident care policies and procedures, including Birmingham
East’s abuse reporting and prevention policies. (Id. at 46-47; Exh. 3 to Thornton
Dep.)
1. Plaintiff’s Training on Policies and Procedures
During her employment, Thornton was trained on Birmingham East’s policies
and procedures regarding resident care and treatment, as well as abuse reporting and
prevention. (Thornton Dep. at 53-58.) Thornton was trained at orientation on
Birmingham East’s Abuse Prevention Policy, and she received a copy of the
7
Employee Handbook. (Id. at 52-54; Exhibit 5 to Thornton Dep.) The Employee
Handbook explained that Birmingham East employees must “immediately report all
alleged violations involving mistreatment, neglect, or abuse . . . to the Executive
Director . . . in accordance with federal and state laws.” (Exh. 4 to Thornton Dep.)
Additionally, the Abuse Prevention Policy mandated that the “Executive Director and
Director of Nursing Services must be promptly notified of suspected abuse or
incidents of abuse.
If such incidents occur or are discovered after hours, the
Executive Director and Director of Nursing Services must be called at home or must
be paged and informed of the incident.” (Thornton Dep. at 55; Exh. 6 to Thornton
Dep.) Thornton acknowledged her receipt of these policies and her obligation to
comply with them. (Exh. 5 to Thornton Dep.)
Additionally, Birmingham East provided Thornton with continuing education
on the abuse reporting requirements throughout her employment via training sessions
called “in-services.” (Burch Aff. ¶¶ 6-7.) Thornton attended in-services on Abuse
Prevention on January 30, 2013, and March 1, 2013, just three weeks prior to the
incident that is the basis of her lawsuit. (Id. ¶ 7; Thornton Dep. at 56-58; Exhs. 7, 8
to Thornton Dep.) In her deposition, Thornton admitted that she was obligated to
immediately report an allegation of resident abuse and that failing to report abuse was
a terminable offense under Birmingham East’s policies. (Thornton Dep. at 68, 1108
12.)
2. The Events Leading to Thornton’s Termination
On March 26, 2013, Plaintiff, LPN Charge Nurse Marcellina Nwosu (AfricanAmerican), and Certified Nursing Assistant Zenobia Cox (African American) worked
the 3:00 p.m. to 11:00 p.m. shift. (Burch Aff. ¶ 10.) Thornton and Nwosu were
assigned different sides of the South Wing for the purpose of passing out
medications, but they were both responsible for all patients on the South Wing.
(Burch Dep. at 106-107; Thornton Dep. at 112.) During the evening shift, Nwosu
went into a female resident’s room to administer her medication, but the resident
refused to take it. (Burch Aff. ¶ 10(a).) Later that evening, Nwosu and Cox returned
to the resident’s room to get her ready for a bath. (Id.) At this time, the resident
reported to Nwosu and Cox that she had been raped by Unit Manager James Nyoro
and Birmingham East’s Medical Director, Dr. Chatterji. (Id. ) Nwosu documented
the allegation of abuse in a Nurse’s Note, but she did not report the allegation to
Burch or Copeland in accordance with the Abuse Prevention Policy. (Id.)
Sometime later, but during the shift, Nwosu approached Thornton at the nurse’s
station and reported the resident’s allegation of rape. (Id. ¶ 10 (b).) Thornton stated
that she did not believe that the resident had been raped and even laughed about the
9
allegation.5 (Id.; Exh. 9 to Thornton Dep.) There is no evidence that she made an
attempt to assess the resident to see if she had been injured. (See id.; see also Exh. 9
to Thornton Dep.) Additionally, she did not call Burch in accordance with the Abuse
Prevention Policy.6 (Thornton Dep. at 110.)
During shift change at 11:00 p.m., Nwosu and Thornton discussed the rape
allegation with the oncoming South Wing nurse, Elizabeth Whitney (Caucasian),
when they gave the customary verbal report of the condition of all residents on South
Wing. (Burch Aff. ¶ 10(d).) Whitney conducted a physical assessment of the
resident to look for signs of abuse. (Id. ¶ 11(c).) Whitney did not call Burch or
Copeland upon learning of the rape allegation at the shift change. (Id. ¶ 10(d).)
On the morning of March 27, 2013, Sharon Camp, South Wing day shift LPN,
arrived at the facility and read the Nurse's Note, written by Nwosu, stating that a
female resident had reported to Nwosu that the resident had been raped by South
Wing Unit Manager James Nyoro, Medical Director Chatterji and CNA Cox.7
5
Thornton’s written statement says: “When I was told I said ‘really, is that was she said’
that I giggled and said really. I laugh and smile a lot, that is my personality[.] I did not mean any
harm.” (Exh. 9 to Thornton Dep.)
6
Thornton testified that she did not remember that night that the Abuse Prevention Policy
mandated that she report any allegations of abuse to Burch and Copeland immediately, including
calling her at home if the alleged abuse was discovered after hours. (Thornton Dep. at 110; Exh.
6 to Thornton Dep.)
7
Although not pointed out by the parties, the court is perplexed that the Nurse’s Note
would include CNA Cox as an alleged abuser, when the rest of the evidence establishes that the
10
(Burch Dep. at 95-96, 99; Burch Aff. ¶ 8.) Camp immediately reported the contents
of the Nurse’s Note to Burch. (Id.) In accordance with Birmingham East policies,
Burch immediately began an investigation into the allegation. (Id. at 96.) Burch
directed nurses to first speak with and perform a body audit on the resident to check
for bruising, redness, or signs of sexual abuse. (Id. at 97.) Further, Birmingham East
sent the resident to the emergency room to screen for signs of sexual abuse, Burch
notified law enforcement, and Burch directed staff to interview other residents about
their knowledge of any other incidents of sexual abuse. (Id. at 97-98.) Upon learning
the names of the alleged abusers, Burch suspended Nyoro and Cox and told Dr.
Chatterji he was not to return to Birmingham East until the investigation was
completed. (Id. at 96-98.)
Burch and the Assistant Director of Nursing, Leslie Watkins, met with
Thornton on March 27, 2013 as part of the investigation of the rape allegation.
(Burch Aff. ¶ 10(b).) During the interview, Thornton admitted she was made aware
of the rape allegation during her shift the previous night. (Id.) Burch asked Thornton
why she did not report the resident’s rape allegation in accordance with the Abuse
Prevention Policy. (Id.) Thornton stated she did not believe it happened and
admitted to laughing about the rape allegation when Nwosu reported it to her. (Id.;
alleged abuse was reported to CNA Cox, not that she was accused of the alleged abuse.
11
Thornton Dep. at 69.) Thornton also provided a written statement describing her
version of the night in question. (Thornton Dep. at 74-75; Exh. 9 to Thornton Dep.)
In her written statement as in her verbal interview, Thornton admitted receiving the
report from Nwosu at the nurse’s station and laughing about the resident's rape
allegation. (Id.) Thornton apologized in her written statement for not calling Burch.
(Exh. 9 to Thornton Dep.) Burch noted that during the interview, Thornton “smirked
during her recollection of the events, as if she found the resident’s rape allegation
funny. She also did not seem . . . to understand the seriousness of the matter.”
(Burch Aff. ¶ 10(b).)
Burch also interviewed Nwosu, Cox and Whitney as part of her investigation.
Their versions of events match the details above. (See id. at ¶¶ 10 (a),(c) & (d).)
Cox denied raping the resident. (Id. ¶ 10(c).) During Whitney’s interview, she was
tearful and apologized for not reporting the resident’s allegations in accordance with
the Abuse Prevention Policy. (Id. ¶ 10(d).)
As a result of the investigation, Burch suspended Thornton, Nwosu and
Whitney (Cox was already suspended) for failing to report the resident’s allegation
of rape in accordance with the Abuse Prevention Policy. (Burch Dep. at 99-100;
Burch Aff. ¶ 11; Exh. 6 to Thornton Dep.) Burch then met with Watkins to discuss
the rape investigation and the suspended employees Thornton, Nwosu, Whitney, and
12
Cox. (Burch Dep. at 103; Burch Aff. ¶ 11.) Burch and Watkins concluded that
Nwosu was the most culpable because the resident made the allegation to Nwosu
during her shift, and she failed to immediately report the allegation (Burch Aff. ¶
11(a); Burch Dep. at 105.) They concluded that Thornton was also more culpable
than the other two employees because Thornton was on the shift when the rape
allegation was made, and she similarly failed to report it and did not conduct a
physical assessment of the resident. (Burch Aff. ¶11(b); Burch Dep. at 103.)
Thornton also laughed and giggled about the allegation, showed no remorse for
failing to report the rape allegation, and showed no remorse or compassion for the
resident. (Burch Dep. at 103-104, 112; Burch Aff. ¶ 11(b).)
On the other hand, Burch and Watkins determined Cox and Whitney were less
culpable. (Burch Aff. ¶11(c) &(d).) Although the resident made the allegation to
Cox at the same time as Nwosu, Nwosu told Cox she would properly report the
allegation and Cox relied on Nwosu’s statement. (Id. ¶ 11(c).) Whitney was not on
shift when the allegation was reported. (Id. ¶ 10(d).) After learning of the allegation,
Whitney conducted a physical assessment of the resident to see if there were any
physical injuries. (Id.) Additionally, when Burch interviewed Whitney about the
incident, Whitney was tearful and remorseful about her failure to call and report the
allegation and understood the seriousness of that failure. (Id.)
13
Based on these findings and conclusions, Burch terminated Nwosu and
Thornton for failing to immediately report the rape allegation as required by the
Abuse Prevention Policy. (Id. ¶ 12; Burch Dep. at 103-104, 112.) Cox and Whitney
were not terminated, but received a final warning. (Id.)
C. The Aftermath
Thornton applied for unemployment compensation benefits following her
termination of employment with Birmingham East. (Thornton Dep. at 200). The
Alabama Department of Labor initially disqualified Thornton from receiving
unemployment compensation benefits on the basis of misconduct, but appealed on
the grounds that she was wrongfully terminated because of discrimination. (Thornton
Dep. at 201-03; Exh. 20 to Thornton Dep). Following a telephone hearing, the
Hearing Officer ruled against Thornton, finding Birmingham East terminated
Thornton for violation of a previously known company policy. (Exh. 23 to Thornton
Dep.) Thornton appealed the decision, which was disallowed by the State Board of
Appeals. (Exh. 25 to Thornton Dep.) Thornton did not appeal to the Circuit Court.
(Thornton Dep. at 213.)
On April 5, 2013, Thornton filed an EEOC Charge, alleging she was
discharged from Birmingham East on the basis of her race. (Exh. A to Doc. #1.) The
EEOC issued a Right to Sue notice on July 28, 2014. (Exh. B to Doc. #1.) Thornton
14
filed the instant Complaint against Birmingham East on October 16, 2014. (Doc. #1.)
Pursuant to her February 20, 2015 Amended Complaint,8 the only remaining claim
in this lawsuit is Thornton’s allegation that she was discharged on the basis of her
race in violation of Title VII and Section 1981. (Doc. #16.)
IV. Applicable Substantive Law and Analysis
Plaintiff contends that she was terminated on the basis of her race, and she
brings her claims of race discrimination under both Title VII and Section 1981.
Claims of race discrimination under section 1981 are analyzed in the same manner
as disparate treatment claims brought under Title VII. See Standard v. A.B.E.L.
Servs., Inc., 161 F.3d 1318, 1330 (11th Cir. 1998).
A. Framework of Analysis
A plaintiff may attempt to establish a claim of illegal employment
discrimination through the use of direct evidence, circumstantial (indirect) evidence,
8
On January 30, 2015, the court granted in part and denied in part Birmingham East's
Motion to Dismiss and Amended Motion to Dismiss, finding Thornton's claims under Title VII
were limited to discriminatory discharge. (Doc. #16, at 14-16.) Additionally, the court found that
Thornton's allegations under Section 1981 were insufficient to meet the Twombly/Iqbal standard
and requiring Thornton to file an Amended Complaint re-stating the allegations under Section
1981. (Id. at 16-18.) Pursuant to the court's order, Thornton filed an Amended Complaint
alleging Race Discrimination under Title VII and Section 1981 on the basis of her discharge.
Thornton confirmed during her deposition her claims are limited to racially discriminatory
discharge. (Thornton Dep. at 113.)
15
or statistics.9 See Schoenfeld v. Babbitt, 168 F.3d 1257, 1266 (11th Cir. 1999)
(recognizing the availability of either direct or circumstantial evidence).
Plaintiff presents only circumstantial evidence of racial discrimination.
Here,
“In
evaluating [discrimination] claims supported by circumstantial evidence, [the courts
of this circuit] use the now-familiar framework established by the United States
Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817,
36 L. Ed. 2d 668 (1973), and Texas Department of Community Affairs v. Burdine,
450 U.S. 248, 101 S. Ct. 1089, 67 L. Ed. 2d 207 (1981).” Combs, 106 F.3d at 1527.
Under the McDonnell Douglas and Burdine framework, the plaintiff first has the
burden of establishing a prima facie case of discrimination, which creates a rebuttable
presumption that the employer acted illegally. See id. at 1527-28. The methods of
presenting a prima facie case, as well as the exact elements of the case, are not fixed;
rather they are flexible and depend to a large degree upon the facts of the particular
situation. See, e.g., Nix v. WLCY Radio/Rahall Communications, 738 F.2d 1181,
1185 (11th Cir. 1984); Lincoln v. Board of Regents of Univ. Sys., 697 F.2d 928, 937
(11th Cir. 1983). In general, a plaintiff establishes a prima facie case of disparate
treatment employment discrimination by showing that he or she was a qualified
9
See also McDonnell Douglas, 411 U.S. at 802 n.13 (“The facts necessary will vary in
Title VII cases, and the specification above of the prima facie proof required from respondent is
not applicable in every respect in different factual situations.”).
16
member of a protected class and was subjected to an adverse employment action but
that otherwise similarly situated employees outside the plaintiff’s class were treated
dissimilarly. See McDonnell Douglas, 411 U.S. at 802 (hiring); Holifield v. Reno,
115 F.3d 1555, 1562 (11th Cir. 1997) (discipline); see also Nix, 738 F.2d at 1185
(discipline); Pittman v. Hattiesburg Mun. Separate Sch. Dist., 644 F.2d 1071, 1074
(5th Cir. 1981) (wages).
Once the plaintiff has shown a prima facie case and, thereby, has raised the
presumption of discrimination, the burden of production shifts to the employer to
articulate a legitimate, nondiscriminatory reason for its actions.10 See Rojas, 285 F.3d
at 1342; Combs, 106 F.3d at 1528. The employer “need not persuade the court that
it was actually motivated by the proffered reasons.” Burdine, 450 U.S. at 254-55; see
Chapman, 229 F.3d at 1024. If the employer satisfies that burden by articulating one
or more such reasons, then the presumption of discrimination falls and the burden of
production again shifts to the plaintiff to offer evidence sufficient for a reasonable
jury to conclude that the employer’s supposedly legitimate reason is merely a pretext
for illegal discrimination.11 Where the defendant articulates multiple, reasonable,
10
See Chapman, 229 F.3d at 1032 (A subjective reason is a legally sufficient, legitimate,
nondiscriminatory reason if the defendant articulates a clear and reasonably specific factual basis
upon which the employer based its subjective opinion.).
11
If the proffered reason is one that might motivate a reasonable employer, a plaintiff
cannot recast the reason but must meet it head on and rebut it. Simply quarreling with that
17
legitimate and nondiscriminatory reasons, plaintiff must rebut each of defendant’s
proffered reasons. See Chapman, 229 F.3d at 1024-25.
Despite this shifting of the burden of production between the plaintiff and the
defendant under the McDonnell Douglas and Burdine framework, “[t]he ultimate
burden of persuading the trier of fact that the defendant intentionally discriminated
against the plaintiff remains at all times with the plaintiff.” Burdine, 450 U.S. at. 253.
Given that the ultimate burden of persuasion always lies with the employee, a
plaintiff may prevail on an employment discrimination claim and may also defeat a
summary judgement either by proving that intentional discrimination did indeed
motivate the defendant or by producing sufficient evidence to allow a rational trier
of fact to disbelieve the employer’s proffered legitimate reasons, thus permitting but
not compelling the trier of fact to make a finding of illegal discrimination. See
Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 147-48 (2000) (pointing
out that the production of the necessary sufficient evidence by plaintiff will not
always prevent the employer from prevailing on a Rule 50 motion and suggesting that
the strength of plaintiff’s prima facie case, the probative value of the proof that the
employer’s explanation is false, and any other properly considered evidence that
supports the employer’s case are among other factors to take into account in
reason is not sufficient. Chapman, 229 F.3d at 1030.
18
evaluating a Rule 50 motion); St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502 (1993);
Abel v. Dubberly, 210 F.3d 1334, 1339 (11th Cir. 2000); Alexander v. Fulton County,
207 F.3d 1303, 1336 (11th Cir. 2000); Combs, 106 F.3d at 1529-38 (interpreting
Hicks and the post-Hicks case law); Hairston v. Gainesville Sun Publ’g Co., 9 F.3d
913, 920-21 (11th Cir. 1993).
B. Plaintiff’s Termination Claim
The parties hotly contest whether Plaintiff established a prima facie case. (See
Doc. #32 at 13-16; Doc. # 35 at 5-9; Doc. # 36 at 2-7.) As the burden is admittedly
a light one and can be established by many different methods, the court will assume
without deciding that Plaintiff has established a prima facie case and get right to the
heart of the matter.
Birmingham East articulated a legitimate, nondiscriminatory reason for
terminating Plaintiff. Birmingham East terminated Thornton because she failed to
report a resident’s allegation of rape in violation of Birmingham East’s Abuse
Prevention Policy. Courts have consistently held that violations of company policies
is a legitimate, nondiscriminatory reason. See, e.g. Usery v. Liberty Reg’l Med. Ctr.,
Inc., 560 Fed. Appx. 883, 888 (11th Cir. 2014). Because Birmingham East satisfied
its burden of articulation, the presumption of discrimination falls and the burden of
production now shifts to Plaintiff to offer evidence sufficient for a reasonable jury to
19
conclude that Birmingham East’s legitimate reason is merely a pretext for illegal
discrimination. See Sierminski v. Transouth Fin. Corp., 216 F.3d 945, 950 (11th Cir.
2000); see also Reeves, 530 U.S. at 147-48; Chapman, 229 F.3d at 1030.
As discussed above, pretext is established when a plaintiff “present[s] concrete
evidence in the form of specific facts” showing that the defendant’s proffered reason
was pretextual. Bryant v. Jones, 575 F.3d 1281, 1308 (11th Cir. 2009). “[The
plaintiff] may succeed in this 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.” Jackson v. State
of Ala. State Tenure Comm’n, 405 F.3d 1276, 1289 (11th Cir.2005) (quotation marks
omitted); see also Vessels v. Atlanta Indep. Sch. Sys., 408 F.3d 763, 771 (11th
Cir.2005) (A plaintiff’s evidence of pretext “must reveal such weaknesses,
implausibilities, inconsistencies, incoherencies or contradictions in the employer's
proffered legitimate reasons for its actions that a reasonable factfinder could find
them unworthy of credence.”). A plaintiff does not demonstrate pretext by showing
that the defendant had a mistaken belief about the facts that formed the basis for the
alleged nondiscriminatory reason. Woodard v. Fanboy, L.L.C., 298 F.3d 1261, 1265
(11th Cir. 2002). Instead, the plaintiff must present evidence that the defendant did
not honestly believe the facts on which it based its nondiscriminatory reason. Id.
20
Further, when the employer provides a reason “that might motivate a reasonable
employer, an employee must meet that reason head on and rebut it . . . .” Chapman,
229 F.3d at 1030. Conclusory allegations and assertions of discrimination are
insufficient. See Bryant, 575 F.3d at 1308.
Plaintiff’s pretext arguments are centered on the second theory of pretext- that
race more than likely motivated the decision to terminate her.
Specifically,
Thornton’s focus is that Whitney, a similarly situated Caucasian employee, was
treated more favorably than Thornton.12 (Doc. #35 at 5-8.) The court rejects this
argument for the reasons stated below.
Plaintiff contends that she was treated less favorably than Whitney, an alleged
similarly situated employees outside her protected class. Binding precedent from the
Eleventh Circuit Court of Appeals requires Plaintiff’s comparators to be similarly
situated in all relevant respects to those comparators she identifies. See, e.g., Morris
v. Emory Clinic, Inc., 402 F.3d 1076, 1082 (11th Cir. 2005); Silvera v. Orange
County Sch. Bd., 244 F.3d 1253, 1259 (11th Cir. 2001) (reversing judgment in favor
12
Thornton also contends that Burch did not discuss Thornton’s termination with
anyone “with terminating power.” (Doc. # 35 at 8.) This argument is nonsensical. First, Burch is
the Executive Director of Birmingham East and is the highest ranking management employee
onsite, with full authority to hire and fire employees. (Burch Aff. ¶ 2.) Thornton does not point
to any policy, procedure, rule or regulation mandating that Burch consult with anyone before
making an employment decision. Even so, the evidence shows that Burch consulted with
Watkins, the Assistant Director of Nursing in making the decision to terminate Thornton. (Burch
Dep. at 118; Burch Aff. ¶ 11.)
21
of plaintiff because employer entitled to judgment as a matter of law where plaintiff’s
comparator engaged in fewer instances of misconduct than plaintiff); Maniccia v.
Brown, 171 F.3d 1364, 1368-69 (11th Cir. 1999) (affirming summary judgment in
employer’s favor where alleged misconduct of comparators was not sufficiently
similar to support disparate treatment claim); Holifield v. Reno, 115 F.3d 1555, 1563
(11th Cir. 1997) (affirming summary judgment where plaintiff failed to produce
sufficient evidence that non-minority employees with which he compares his
treatment were similarly situated in all aspects, or that their conduct was of
comparable seriousness to the conduct for which he was discharged). In evaluating
the similarity of the comparators identified by the plaintiff, the most important
variables in a discriminatory discipline case are the nature of the offenses committed
and the nature of the punishments imposed. See Jones v. Gerwens, 874 F.2d 1534,
1539 (11th Cir. 1989). Both the “quantity and the quality of the comparator’s
misconduct must be nearly identical to prevent courts from second-guessing
employer’s reasonable decisions and confusing apples and oranges.” Maniccia, 171
F.3d at 1368. In this analysis, a court must keep in mind that “Title VII does not take
away an employer’s right to interpret its rules as it chooses, and to make
determinations as it sees fit under those rules[.]” Id. at 1369. Moreover, the actions
of the employer toward the proffered comparators are only relevant if the
22
decisionmaker knew of rule violations by the comparators and took no action against
them. Jones, 874 F.2d at 1542.
Plaintiff contends that Whitney, Caucasian, engaged in the same or similar
conduct as Thornton, but that Whitney was not terminated. Plaintiff argues that
Burch chose not to terminate the Caucasian employee and only terminated the
African American employees who failed to report the alleged abuse.13 Because of this
fact, Plaintiff concludes that she was discriminated against because of her race. The
court disagrees.
The resident in question made the rape allegation on Thornton’s wing, during
her shift, and while under the care of Thornton and Nwosu. (Burch Dep. at 106-08).
Thornton learned of the allegation during her shift while she was standing at the
nurse’s station. (Burch Aff. ¶10(b).) Thornton did nothing in response to the report
of the allegation, other than “giggling.” (Exh. 9 to Thornton Dep.) She did not
conduct a physical assessment of the resident, and she did not report the allegation
to Burch or anyone else in charge as required by the Abuse Prevention Policy. (Id.;
Burch Aff. ¶ 10(b).) Additionally, during her interview with Burch, Burch noted that
Thornton smirked about the resident’s rape allegation. (Id.) It was Burch’s
13
Plaintiff’s argument ignores the fact that an African American, Cox, who also did not
report the alleged abuse, was not terminated.
23
perception, based on Thornton’s demeanor and attitude, that Thornton had no remorse
for failing to report the rape allegation in accordance with company policy and had
no remorse or compassion for the resident. (Burch Dep. at 103-104, 112; Burch Aff.
¶ 11(b).) Burch determined Thornton did not possess the level of compassion that a
nurse at Birmingham East should possess. (Id.)
In contrast, Whitney was not working or in the building when the allegation
was made and only learned of the allegation in a verbal report at the beginning of her
shift. (Burch Dep. at 104.) Whitney immediately conducted a physical assessment
of the resident in accordance with the policy, but she did not report the allegation of
abuse to Burch or anyone else. (Burch Aff. ¶¶ 10(c) & 11(d).) During her interview
with Burch, Whitney was “tearful and remorseful” that she did not follow proper
procedure and immediately notify Burch. (Burch Dep. at 104.) Burch believed that
Whitney “understood the seriousness of her failure to report the abuse allegation.”
(Burch Aff. ¶ 11(d).)
Based on these differences, Burch decided to terminate
Plaintiff’s employment and retain Whitney, but give her a final warning.
That the decision to terminate Thornton was based on Thornton’s subjective
opinion does not aid Thornton in establishing pretext. To show that the proffered
reason for her termination was pretextual, Plaintiff must show that Defendant based
the decision to discipline her on an unreasonable belief that she behaved in the
24
manner alleged. See, e.g., Silvera v. Orange County Sch. Bd., 244 F.3d 1253, 1261
(11th Cir. 2001), cert. denied, 534 U.S. 976 (2001) (pretext means more than a
mistake by the employer; actions taken based on a mistaken, non-discriminatory
belief do not violate Title VII); Lee v. GTE Fla., Inc., 226 F.3d 1249, 1253 (11th Cir.
2000), cert. denied, 532 U.S. 958 (2001); Equal Employment Opportunity Comm’n
v. Total Sys. Servs., Inc., 221 F.3d 1171 (11th Cir. 2000) (plaintiff could be properly
discharged on defendant’s good faith belief that she lied in an internal investigation);
Alexander v. Fulton County, Ga., 207 F.3d 1303, 1339 (11th Cir. 2000), reh’g denied,
218 F.3d 749 (11th Cir. 2000) (“a plaintiff must show not merely that the defendant’s
employment decisions were mistaken but that they were in fact motivated by race.”);
Elrod v. Sears, Roebuck & Co., 939 F.2d 1466, 1470 (11th Cir.1991) (court’s pretext
inquiry is properly limited to whether the decision-makers believed the employee had
engaged in conduct for which he was terminated and if so whether this belief was the
reason for the discharge, not whether plaintiff was actually guilty of the conduct);
Conner v. Fort Gordon Bus Co., 761 F.2d 1495, 1501 (11th Cir.1985) (employer’s
belief, honest but mistaken, may nonetheless provide legitimate reason for discharge).
Despite Plaintiff’s conclusory assertion to the contrary, she has offered no evidence
which contradicts the evidence before this court that Defendant terminated her
because Burch believed that Thornton did not posses the level of caring and
25
compassion necessary to work at Birmingham East, while Whitney retained some of
that confidence. See Thomas v. Miami Veterans Med. Cntr., 290 Fed. Appx. 317,
320 (11th Cir. Aug. 26, 2008) (conclusory allegations insufficient to support pretext);
Mayfield v. Patterson Pump Co., 101 F.3d 1371, 1376 (11th Cir. 1996) (conclusory
allegations, without more, are insufficient to show pretext).
Simply, Plaintiff’s pretext argument fails. The record shows that Thornton
violated the Abuse Prevention Policy, did not show any remorse for that failure and
Burch believed she lacked compassion for the resident which resulted in Burch losing
lost confidence in her ability to do the job , and accordingly terminated Plaintiff. See
Holifield, 115 F.3d at 1565 (“The inquiry into pretext centers upon the employer’s
beliefs, and not the employee’s own perceptions of his performance.”). Plaintiff has
not created a genuine issue of material fact as to whether Defendant’s articulated
reason for her termination was pretextual. See Chapman, 229 F.3d at 1024-25.
Defendant’s motion for summary judgment is, therefore, due to be granted for the
reasons articulated above.
V. Conclusion
In summary, the court finds that no material issues of fact remain and that
Defendant Birmingham Nursing and Rehabilitation Center East, LLC is entitled to
judgment as a matter of law as to all claims asserted by Plaintiff. A separate order
26
will be entered.
DONE this the 11th
day of February, 2016.
SENIOR UNITED STATES DISTRICT JUDGE
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