Kretzschmar v. Birmingham Nursing & Rehabilitation East et al
MEMORANDUM OPINION. Signed by Magistrate Judge John E Ott on 5/19/2017. (JLC)
2017 May-19 PM 04:18
U.S. DISTRICT COURT
N.D. OF ALABAMA
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
BIRMINGHAM NURSING AND
REHABILITATION CENTER EAST,
Case No. 2:14-cv-02207-JEO
This action involves claims for race discrimination, retaliation, and hostile
work environment brought by plaintiff Kendralia Kretzschmar, an AfricanAmerican female, against her former employer, defendant Birmingham Nursing
and Rehabilitation Center East, LLC (“Birmingham East”). Kretzschmar worked
at Birmingham East from July 2012 through September 2013. Her claims are
based on three primary sets of allegations. First, Kretzschmar alleges that
Birmingham East promised in June 2013 to promote her to the position of
Assistant Director of Nursing, but one month later “demoted” her to her prior
position because of her race. Second, she alleges that Birmingham East suspended
her without pay because of her race. Third, she alleges that Birmingham East
retaliated against her, and ultimately terminated her, for complaining about race
Before the court are Birmingham East’s motion for summary judgment (doc.
41) and motion to strike certain exhibits submitted by Kretzschmar in response to
the motion for summary judgment (doc. 51). 1 For the reasons set forth below,
Birmingham East’s motion to strike will be granted in part and denied in part and
its motion for summary judgment will be granted.
Kretzschmar initially filed this action against Birmingham East and its
Executive Director, Melody Burch. (Doc. 1). In Kretzschmar’s original
complaint, she cited a litany of federal employment law statutes: Title VII of the
Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. §§ 2000e et seq.; the Americans
with Disabilities Act (“ADA”), 42 U.S.C. §§ 12101 et seq.; 42 U.S.C. § 1981
(“Section 1981”); 42 U.S.C. § 1981a; 42 U.S.C. § 1983 (“Section 1983”); the Age
Discrimination in Employment Act (“ADEA”), 29 U.S.C. §§ 626 et seq.; and the
Fair Labor Standards Act (“FLSA”), 29 U.S.C. §§ 201 et seq. (Doc. 1 at ¶ 1). She
did not state her claims in separate counts, but rather lumped all of her claims into
a single paragraph that accused Birmingham East and Burch of discriminating and
References to “Doc. __” are to the document numbers assigned by the Clerk of the Court to the
pleadings, motions, and other materials in the court file, as reflected on the docket sheet in the
court’s Case Management/Electronic Case Files (CM/ECF) system.
retaliating against her with respect to “job duties, and assignments, job evaluations,
pay, working conditions, hiring, promotion, hostile work environment, discipline,
and other terms and conditions of employment” in violation of all of the statutes
she had cited. (Doc. 1 at ¶ 20).
Birmingham East and Burch filed a motion to dismiss the complaint for
insufficiency of service of process under Rule 12(b)(5) of the Federal Rules of
Civil Procedure and failure to state a claim upon which relief may be granted under
Rule 12(b)(6). (Doc. 7). Kretzschmar filed an opposition to the motion to
dismiss, as well as a motion for leave to file an amended complaint that named
Birmingham East as the only defendant.2 (Doc. 16). She also obtained proper
service on Birmingham East.
The Court held a telephone conference with the parties to clarify their
respective positions on the pending motions. During the call, Kretzschmar’s
counsel confirmed that Kretzschmar did not intend to pursue any claims against
Burch as reflected in her amended complaint. Based on that representation, the
Court granted Kretzschmar’s motion to file the amended complaint and noted that
Burch was no longer a defendant. (Doc. 26). The Court also advised the parties
that it would treat Birmingham East’s pending motion to dismiss Kretzschmar’s
original complaint as a motion to dismiss the claims in her amended complaint,
Kretzschmar’s amended complaint referenced the same employment law statutes as her original
complaint, except for Section 1983.
based on the parties’ representations that the motion to dismiss was ripe for
decision and that they had no additional arguments to submit. (Id.)
Unlike her original complaint, Kretzschmar’s amended complaint is divided
into four counts. Count One alleges race discrimination, Count Two alleges
retaliatory discharge, Count Three alleges reprisal, and Count Four alleges a hostile
and abusive work environment. (Doc. 28). The Court granted in part and denied in
part Birmingham East’s motion to dismiss the amended complaint. The Court
dismissed many of Kretzschmar’s claims (including any ADA, ADEA, and FLSA
claims), but allowed the following claims to go forward: Kretzschmar’s claims
under Title VII and Section 1981 alleging race discrimination as to her
“suspension, demotion, and pay reduction” in July 2013; (2) her claims under Title
VII and Section 1981 alleging retaliatory discharge; (3) her claim under Section
1981 for retaliatory acts other than discharge; and (4) her hostile work environment
claim under Section 1981. (Docs. 32 & 33).
Birmingham East has now moved for summary judgment on Kretzschmar’s
remaining claims pursuant to Rule 56 of the Federal Rules of Civil Procedure.
(Doc. 41). Kretzschmar has submitted a response in opposition to the motion for
summary judgment (doc. 47), along with a number of exhibits. (Docs. 47-1
through 48-9). Birmingham East has filed a motion to strike many of the exhibits.
(Doc. 51). Because the Court’s ruling on the motion to strike will impact its
consideration of Birmingham East’s motion for summary judgment, the Court will
first address the motion to strike, and will then turn to the motion for summary
I. MOTION TO STRIKE
Kretzschmar’s response to Birmingham East’s motion for summary
judgment includes (among other exhibits) email correspondence that appears to
relate to the Charge of Discrimination she filed with the Equal Employment
Opportunity Commission (“EEOC”) (Ex. 1, docs. 48-1 through 48-6); the Affidavit
of Letosha Van Buren, a former Staff Assistant at Birmingham East (Ex. 5, doc.
47-4); the Affidavit of Anita White, a former Certified Nursing Assistant at
Birmingham East (Ex. 6, doc. 47-5); the Affidavit of Kimmie Harris, a former
Licensed Practical Nurse at Birmingham East (Ex. 9, doc. 47-8); and the Affidavit
of Luther Danzy, a visitor at Birmingham East (Ex. 14, doc. 47-13). Birmingham
East has moved the Court to strike the EEOC correspondence, the White, Harris,
and Danzy affidavits, and portions of the Van Buren affidavit. Kretzschmar has
not opposed or otherwise responded to the motion to strike.
Standard of Review
“A district court has broad discretion in determining the admissibility of
evidence” on a motion for summary judgment. Hetherington v. Wal-Mart, Inc.,
511 F. App’x 909, 911 (11th Cir. 2013).3 The Supreme Court has held that the
nonmoving party is not required to produce evidence “in a form that would be
admissible at trial in order to defeat summary judgment.” Celotex Corp. v. Catrett,
477 U.S. 317, 324 (1986). This “simply allow[s] otherwise admissible evidence to
be submitted in inadmissible form at the summary judgment stage, though at trial it
must be submitted in admissible form.” McMillan v. Johnson, 88 F.3d 1573, 1584
(11th Cir. 1996) (emphasis in original). In this regard, “[t]he general rule is that
inadmissible hearsay cannot be considered on a motion for summary judgment,”
although a district court “may consider a hearsay statement in passing on a motion
for summary judgment if the statement could be reduced to admissible evidence at
trial or reduced to admissible form.” Macuba v. Deboer, 193 F.3d 1316, 1322-23
(11th Cir. 1999) (footnote, internal quotations, and citations omitted). In addition,
“[u]nsworn statements do not meet the requirements of Rule 56” and are not
considered by the court in ruling on a motion for summary judgment. Dudley v.
City of Monroeville, 446 F. App’x 204, 207 (11th Cir. 2011); see also Rhodes v.
Tuscaloosa Cnty. Bd. of Ed., 935 F. Supp. 2d 1226, 1233 (N.D. Ala. 2013) (“The
court does not consider unsworn statements.”).
Unpublished opinions of the Eleventh Circuit Court of Appeals are not considered binding
precedent; however, they may be cited as persuasive authority. 11th Cir. R. 36-2.
Exhibit 1 to Kretzschmar’s response contains a number of emails between
Kretzschmar and Lashaundra Love, the EEOC investigator assigned to investigate
her EEOC Charge. (Docs. 48-1 through 48-6). Specifically, Exhibit 1 contains an
email from Love to Kretzschmar summarizing Birmingham East’s response to her
EEOC Charge (see doc. 48-1 at 3-4; multiple copies of the email are included in
Exhibit 1), and a series of emails from Kretzschmar to Love responding to
Birmingham East’s position and reciting various allegations against Birmingham
East (docs. 48-1 at 2-3 & 48-6 at 2). Exhibit 1 also includes a lengthy unsworn
statement, presumably provided by Kretzschmar to the EEOC, discussing her
allegations against Birmingham East in detail (docs. 48-3 at 4-5 & 48-4 at 2-5).4
Birmingham East argues that the EEOC Correspondence, none of which is
authenticated, should be stricken because it is inadmissible hearsay. (Doc. 51 at 69). The Court agrees with Birmingham East.
The Court first notes, again, that Kretzschmar has filed no opposition or
other response to Birmingham East’s motion to strike. She has made no effort to
authenticate any of the documents in Exhibit 1, and has not challenged
Birmingham East’s assertion that the EEOC Correspondence is inadmissible
For purposes of Birmingham East’s motion to strike, the Court will assume that the unsworn
statement in Exhibit 1 is further correspondence from Kretzschmar to the EEOC, and will refer
to the emails and the unsworn statement collectively as “EEOC Correspondence.”
hearsay. Indeed, Lashaundra Love’s email summarizing Birmingham East’s
position is double hearsay, as it contains Love’s recitation of the information she
was provided by Birmingham East. See United States v. Robinson, 239 F. App’x
507, 508 (11th Cir. 2007) (“Hearsay is a ‘statement, other than one made by the
declarant while testifying at the trial or hearing, offered in evidence to prove the
truth of the matter asserted.’ Fed. R. Evid. 801(c). Hearsay within hearsay, or socalled ‘double-hearsay,’ is admissible only if each part of the combined statements
conforms with an exception to the hearsay rule. Fed. R. Evid. 805.”). Kretzschmar
has not argued that any of the statements in Love’s email constitute non-hearsay
evidence or conform to an exception to the hearsay rule.5 Kretzschmar’s own
emails and her unsworn statement are hearsay as well, as they are out-of-court
statements offered by Kretzschmar for the truth of the matters asserted therein.
They are also double hearsay to the extent Kretzschmar repeats information she
allegedly learned from other employees, including Shaunnan Cook and Blake
Steapleton. (See Doc. 48-1 at 2). Again, Kretzschmar has not argued that any of
these statements fit within an exception to the hearsay rule. Moreover, all of the
statements in the EEOC Correspondence are unsworn.
The Court notes that to the extent communications from Love to Kretzschmar include
statements or positions purportedly advanced by Birmingham East to Love, they might be
admissible evidence as opponent-party statements (see Fed. R. Evid. 801(d)(2)). However,
consideration of these matters does not alter the Court’s determination of the summary judgment
Accordingly, the Court will grant Birmingham East’s motion to strike the
EEOC Correspondence in Exhibit 1. See Rhodes, 935 F.3d at 1236-37 (striking
unauthenticated email from plaintiff and observing that “plaintiff does not argue
that the email—her own out-of-court statement—or the statement of [a third-party
cited in the email] are admissible testimony”). The Court has not considered the
EEOC Correspondence in ruling on Birmingham East’s motion for summary
The Affidavits of Anita White, Kimmie Harris, and Luther Danzy
Kretzschmar has also submitted affidavits signed by Anita White, Kimmie
Harris, and Luther Danzy. Anita White is a Certified Nursing Assistant who
worked at Birmingham East from August 2010 to January 2014. In her affidavit,
White offers testimony regarding alleged nepotism and racial tension at
Birmingham East. (Doc. 47-5). Kimmie Harris is a Licensed Practical Nurse who
worked at Birmingham East for an unidentified period of time. She has offered
affidavit testimony concerning the documentation of medication errors at
Birmingham East. (Doc. 47-8). Luther Danzy visited a Birmingham East resident,
the father of a friend, multiple times from 2012 to 2014. In his affidavit, he
expresses speculative opinions on the treatment the resident, an African-American,
The Court notes that Kretzschmar offered deposition testimony concerning many of the matters
discussed in the EEOC Correspondence. The Court has considered her deposition testimony in
ruling on the motion for summary judgment.
received at the facility. (Doc. 47-13). Birmingham East has moved the Court to
strike all three affidavits because Kretzschmar never identified White, Harris, or
Danzy as witnesses prior to submitting their affidavits in opposition to the pending
motion for summary judgment. (Doc. 51 at 2-5).
Rule 26(a) of the Federal Rules of Civil Procedure requires a party to
provide “the name … of each individual likely to have discoverable information—
along with the subjects of that information—that the disclosing party may use to
support its claims or defenses ….” FED. R. CIV. P. 26(a)(1)(A)(i). If a party fails to
identify a witness as required by Rule 26(a), the party is not allowed to use the
witness “to supply evidence on a motion, at a hearing, or at a trial, unless the
failure was substantially justified or is harmless.” FED. R. CIV. P. 37(c)(1). “‘The
burden of establishing that a failure to disclose was substantially justified or
harmless rests on the nondisclosing party.’” Mitchell v. Ford Motor Co., 318 F.
App’x 821, 824 (11th Cir. 2009) (quoting Leathers v. Pfizer, Inc., 233 F.R.D. 687,
697 (N.D. Ga. 2006)). Among the factors courts consider in deciding whether to
exclude testimony from a non-disclosed witness are “(1) the importance of the
testimony; (2) the reason for the [plaintiff’s] failure to disclose the witness earlier;
and (3) the prejudice to the opposing party if the witness had been allowed to
testify.” Pete’s Towing Co. v. City of Tampa, 378 F. App’x 917, 920 (11th Cir.
2010) (quoting Bearint ex rel. Bearint v. Dorell Juvenile Grp., Inc. 389 F.3d 1339,
1353 (11th Cir. 2004)) (quotation marks omitted).
Here, it is undisputed that Kretzschmar did not identify Anita White,
Kimmie Harris, or Luther Danzy in her Rule 26 disclosures. 7 Kretzschmar also
failed to identify White, Harris, and Danzy in her response to Interrogatory No. 16
of Birmingham East’s First Interrogatories, which asked her to identify “every
person” who she believed had “personal information” regarding her claims and/or
Birmingham East’s defenses. 8 (See Doc. 35-1 at 5). In addition, Kretzschmar did
not mention White, Harris, or Danzy at any point during her deposition. (See
Kretzschmar Dep., Docs. 43-1 through 43-3).
Kretzschmar has not even attempted to explain why she never disclosed
White, Harris, and Danzy as potential witnesses prior to submitting their affidavits,
much less argued that the failure to disclose was substantially justified or harmless.
Birmingham East has certainly been prejudiced by Kretzschmar’s actions; because
Kretzschmar did not disclose White, Harris, and Danzy as individuals with
discoverable information she might use to support her claims, or identify them as
persons with personal information regarding her claims, Birmingham East had no
Kretzschmar’s Rule 26 disclosures identified only five potential witnesses: Amanda Gillott,
Shaunnan Cook, Dakota Cheatham, Melody Burch, and Letoria Moore. (See Doc. 51 at 16-17).
Kretzschmar responded that she had “already given this information … in her initial disclosure.”
(See Doc. 51 at 20).
reason or opportunity to depose them before the close of discovery and before
Kretzschmar submitted their affidavits. See Moore v. Corp. Facilities Mgt., L.L.C.,
Case No. 2:10-cv- 3354-SLB, 2012 WL 4329288, *5 (N.D. Ala. Sept. 17, 2012)
(granting the plaintiff’s motion to strike the declaration of an undisclosed witness
submitted by the defendant in support of a motion for summary judgment, where
the plaintiff had “no opportunity to depose [the witness] within the time allowed by
the court’s scheduling order.”). Accordingly, the Court finds that Kretzschmar’s
failure to identify Anita White, Kimmie Harris, and Luther Danzy as potential
witnesses was neither justified nor harmless and will grant Birmingham East’s
motion to strike their affidavits. The Court will not consider the affidavits in ruling
on Birmingham East’s motion for summary judgment.
The Affidavit of Letosha Van Buren
Kretzschmar has also submitted the Affidavit of Letosha Van Buren, an
African-American who was employed as a Staffing Assistant at Birmingham East.
(Doc. 47-4). It is unclear when she worked at Birmingham East or how long she
worked there. In her affidavit, Van Buren primarily discusses her interactions with
Amanda Gillott, a Caucasian nurse at Birmingham East. 9 She also offers
comments on Birmingham East’s treatment of Sandy Copeland and Leslee
Although Van Buren was not disclosed as a witness in Kretzschmar’s Rule 26 disclosures or
her discovery responses, Kretzschmar described an alleged incident involving Van Buren and
Gillott during her deposition. (Kretzschmar Dep. at 97-100).
Watkins, two former Caucasian employees who held the positions of Director of
Nursing Services (“DON” or “DNS”) and Assistant Director of Nursing (“ADON”
or “ADNS”) at Birmingham East. 10
Birmingham East has moved the Court to strike a number of statements from
Van Buren’s affidavit. (Doc. 51 at 9-11). First, Birmingham East has moved the
Court to strike the following statement from the second paragraph of Van Buren’s
affidavit: “I aver that the issues that includes [sic]: discrimination, creating a
hostile work environment, intimidation, and the list goes on; happened at
Birmingham Nursing and Rehab Center East when I was employed.” (Van Buren
Aff. at ¶ 2). The Court agrees with Birmingham East that this statement expresses
improper legal conclusions and is due to be stricken. See Hinson v. Chelsea Indus.,
542 F. Supp. 2d 1236, 1242-43 (M.D. Ala. 2008) (striking paragraph of plaintiff’s
affidavit because it was “conclusory and state[d] an impermissible legal conclusion
which invade[d] the province of the court”).
Second, Birmingham East has moved the Court to strike Van Buren’s
statement in the second paragraph of her affidavit that Amanda Gillott worked at
Birmingham East “after being fired from another facility and having her nursing
license suspended.” (Van Buren Aff. at ¶ 2). Birmingham East argues that this
In the parties’ submissions, Copeland’s first name is also spelled “Sandi” and Watkins’s first
name is also spelled “Leslie.” For consistency’s sake, the Court will use “Sandy” and “Leslee”
in this opinion.
statement should be stricken because Van Buren has not explained how she
acquired knowledge about Gillott’s previous employment history and licensure
status and because the statement is irrelevant. (Doc. 51 at 10). Although
Birmingham East is correct that Van Buren does not explain how she acquired this
knowledge, she does state that the facts in her affidavit are true based upon her
“personal knowledge and belief” (Van Buren Aff. at ¶ 1), which satisfies the
requirement that “[a]n affidavit or declaration used to support or oppose a motion
[for summary judgment] must be made on personal knowledge ….” FED. R. CIV. P.
56(c)(4). However, the Court agrees with Birmingham East that information about
Gillott’s employment history and licensure status prior to being hired by
Birmingham East is irrelevant. The information has no relevance to any of
Kretzschmar’s claims in this action, which concern how Kretzschmar was
allegedly treated at Birmingham East. Accordingly, Van Buren’s statement that
Gillott worked at Birmingham East after being fired from another facility and
having her nursing license suspended will be stricken.
Third, Birmingham East has moved to strike statements in the second and
sixth paragraphs of Van Buren’s affidavit regarding discipline Amanda Gillott
received while working at Birmingham East.11 Birmingham East argues that Van
Buren, who was not in a position of management at the facility, would have no
Birmingham East mistakenly refers to the sixth paragraph of Van Buren’s affidavit as
paragraph 7. (Doc. 51 at 10).
personal knowledge of any discipline Gillott received and that her affidavit fails to
establish the basis of any such personal knowledge. (Doc. 51 at 10). However, as
noted above, Van Buren has represented that the facts set forth in her affidavit are
true based upon her personal knowledge and belief. Given that representation, Van
Buren’s statements regarding the discipline Gillott received at Birmingham East
will not be stricken in the absence of some affirmative evidence that she could not
have had any personal knowledge of such discipline, which Birmingham East has
Fourth, Van Buren’s affidavit includes the following statement regarding the
announcement that Leslee Watkins was “stepping down” as Birmingham East’s
DON and taking the position of ADON: “How convenient considering Sandy
Copeland had just regained her nursing license.” (Van Buren Aff. at ¶ 6).
Birmingham East asserts that this statement is due to be stricken, and the Court
agrees. The statement is reflective of nothing more than Van Buren’s inadmissible
(and sarcastic) opinion.
Finally, Birmingham East has moved to strike the entire fourth paragraph of
Van Buren’s affidavit, in which Van Buren states as follows:
(The “DON”, “ADON”, and Amanda Gillott are all
Caucasians.) Leslee Watkins was new at the time and was being
trained by Sandy Copeland (while her license were [sic] suspended)
and our Executive Director, Melody Burch (also Caucasian) wanted
her good friend Sandy Copeland to keep her job. Everyone knew
including Leslee that the only reason they hired Leslee Watkins as the
“DON” was because the DON has to have an active nursing license.
They (Melody Burch and Sandy Copeland) had no intention to ever
train Leslee, they only wanted to use her license until Sandy regained
hers. Once Sandy Copeland regained her license Leslee would step
down as DON to the role of ADON.
(Van Buren Aff. at ¶ 4). Except for Van Buren’s statements that the DON, ADON,
Amanda Gillott, and Melody Burch are Caucasian, all of the above statements are
speculative and cannot be based on Van Buren’s personal knowledge. In
particular, Van Buren is in no position to testify to what “everyone knew” about
the hiring of Leslee Watkins or to what Melody Burch intended when she hired
Watkins. To that extent the fourth paragraph of Van Buren’s affidavit will be
II. MOTION FOR SUMMARY JUDGMENT
Summary Judgment Standard
Rule 56 of the Federal Rules of Civil Procedure provides that a court “shall
grant summary judgment 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). In other words, summary judgment is proper “after adequate time
for discovery and upon motion, against a party who fails to make a showing
sufficient to establish the existence of an element essential to that party’s case, and
on which that party will bear the burden of proof at trial.” Celotex, 477 U.S. at 22.
“In making this determination, the court must review all evidence and make all
reasonable inferences in favor of the party opposing summary judgment.”
Chapman v. AI Transport, 229 F.3d 1012, 1023 (11th Cir. 2000) (en banc)
(quoting Haves v. City of Miami, 52 F.3d 918, 921 (11th Cir. 1995)). Inferences in
favor of the non-moving party are not unqualified, however. “[A]n inference is not
reasonable if it is only a guess or a possibility, for such an inference is not based on
the evidence, but is pure conjecture and speculation.” Daniels v. Twin Oaks
Nursing Home, 692 F.2d 1321, 1324 (11th Cir. 1983) (alteration supplied).
[t]he mere existence of some factual dispute will not defeat
summary judgment unless that factual dispute is material to an issue
affecting the outcome of the case. The relevant rules of substantive
law dictate the materiality of a disputed fact. A genuine issue of
material fact does not exist unless there is sufficient evidence favoring
the nonmoving party for a reasonable jury to return a verdict in its
Chapman, 229 F.3d at 1023 (quoting Haves, 52 F.3d at 921) (emphasis and
alteration supplied). See also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 25152 (1986) (asking “whether the evidence presents a sufficient disagreement to
require submission to a jury or whether it is so one-sided that one party must
prevail as a matter of law”).
Birmingham East is a long-term care nursing facility in Birmingham,
Alabama. At all relevant times, Melody Burch was Birmingham East’s Executive
Director. (Declaration of Melody Burch (Doc. 43-5) at ¶¶ 1-2).
In July 2012, Burch hired Kretzschmar as the temporary Social Services
Director at Birmingham East. (Id. at ¶ 6). Kretzschmar had obtained her
Registered Nurse (“RN”) license two months earlier. (Kretzschmar Dep. at 30).
After Birmingham East’s regular Social Services Director returned to work, Burch
placed Kretzschmar in the position of MDS (Minimum Data Set) Coordinator.
MDS Coordinator is a nursing position that involves conducting clinical
assessments of facility residents as part of the development of a plan of care for
each resident. The position does not involve supervisory duties. (Burch Decl. at ¶
Kretzschmar’s Appointment to Interim DON
In January 2012 (prior to Kretzschmar’s hiring), Burch hired Sandy
Copeland, a Caucasian, as a Quality Assurance Nurse at Birmingham East.
According to Burch, her intention when she hired Copeland was ultimately to
These are the “facts” for summary judgment purposes only. They may not be the actual facts.
See Cox v. Adm’r U.S. Steel & Carnegie Pension Fund, 17 F.3d 1386, 1400 (11th Cir. 1994).
make her the facility’s DON. However, because Copeland was on probationary
status with the Alabama Board of Nursing and was restricted from supervising
other employees at that time, Burch was prevented from hiring her as the DON.
Consequently, in March 2012 Burch promoted Leslee Watkins, an RN she had
hired the prior month, to DON. Watkins, a Caucasian, had approximately one year
of nursing experience at the time of her hiring. Burch also understood that
Watkins had experience managing subordinates. Burch contends that Watkins’s
promotion to DON was not an “interim” promotion, even though Burch still
intended to ultimately place Copeland in the DON position if she successfully
completed the requirements of her probation. (Burch Decl. at ¶¶ 4-5).
In the summer of 2012, the restrictions of Copeland’s probation were lifted.
Burch then promoted her to DON and re-assigned Watkins to the position of
ADON. (Id. at ¶¶ 4-5).
The following year, in early June 2013, Burch learned that Copeland was not
following Birmingham East’s established procedures for securing narcotics. Upon
investigation, Burch uncovered evidence that Copeland may have been responsible
for the theft of narcotics from the facility’s narcotics destruction cabinet. Burch
also discovered that Watkins, like Copeland, was not following Birmingham East’s
procedures for securing narcotics. However, she did not uncover any evidence that
Watkins was stealing narcotics. (Id. at ¶ 7).
On June 13, 2013, Burch terminated Copeland’s employment as DON.
Around this same time, Watkins resigned as ADON. Birmingham East policy
requires professional personnel, including nurses, to give four weeks’ notice of
resignation and to work all scheduled days during the notice period in order to
receive payment for unused vacation and personal time. Because Burch believed
that Copeland had taken advantage of Watkins, Burch agreed to pay Watkins for
her unused vacation and personal time, even though Watkins had not given four
weeks’ notice prior to her resignation. (Id. at ¶ 8).
According to Burch, Birmingham East did not have any remaining nurses
on staff with sufficient experience to be promoted to DON, which meant that she
needed to hire an outside candidate to fill the position. However, controlling
federal regulations required Birmingham East to have a DON on staff at all times.
Under these circumstances, Burch decided to make Kretzschmar the Interim DON,
with an increase in pay, until a permanent DON was hired. (Id. at ¶ 9).
Exactly what Kretzschmar was told when she was appointed Interim DON
is in dispute. According to Burch, she told Kretzschmar that once a permanent
DON was hired, she would consider Kretzschmar for the ADON position if
Kretzschmar demonstrated that she was capable of handling the job. Burch
maintains that she never promised to make Kretzschmar the ADON, but only to
consider her for the position. (Id.)
Kretzschmar does not dispute that Burch appointed her to the DON position
on an interim basis. According to Kretzschmar, however, Burch promised to make
her the ADON once a permanent DON was hired. (Kretzschmar Dep. at 79-81,
121-22). Kretzschmar insists that Burch promised to make her the ADON and did
not tell her that she would simply be “considered” for the position based on her
performance. (Id. at 110). According to Kretzschmar, she would not have accepted
the Interim DON position had she been told that Burch might later change her
mind and not make her the ADON. (Id. at 111-12).
Burch’s Decision to Return Kretzschmar to MDS Coordinator
Kretzschmar began serving in the Interim DON position on June 13, 2013.
(Burch Decl. at ¶ 11). The following month, during the week of July 8, 2013,
Burch hired Malea Braxton as Birmingham East’s permanent DON. Braxton’s
first day of work as DON was July 15, 2013. (Burch Decl. at ¶ 11).
During the month that Kretzschmar served in the Interim DON position,
Burch observed her job performance and received feedback on her performance
from other employees. According to Burch, she noted issues with Kretzschmar’s
“maturity, professionalism, judgment, leadership and responsibility.” (Id. at ¶ 11).
In particular, Burch observed:
(a) during daily management meetings with all department heads and
others, Ms. Kretzschmar would regularly cut up, joke, make
inappropriate comments, and generally act in an immature manner; (b)
on one occasion, as a joke, she took the penis from an anatomically
correct mannequin used for training purposes and left it in another
employee’s desk chair; (c) on another occasion in front of me and
other employees, she took a “butt pad” out of her pants and swung it
around and made comments about how her “booty” looked better
padded; (d) during this time period I learned that she had a brief
consensual sexual affair with the Human Resources Representative;
[and] (e) several nursing department employees told me that when
they had work issues at night or on weekends and needed to speak
with Ms. Kretzschmar, she would not answer or return calls (which
resulted in them calling me [Burch] for the needed assistance).
(Id.) Based on these observations, Burch determined that Kretzschmar was not
ready to fill the position of ADON. Consequently, when Burch hired Malea
Braxton as the permanent DON, Burch decided to return Kretzschmar to her
former position as MDS Coordinator and not make her the ADON. (Burch Decl. at
Kretzschmar does not expressly deny any of Burch’s observations regarding
her job performance as Interim DON, but does allege some additional facts. With
respect to her behavior during management meetings, Kretzschmar cites the
affidavit testimony of Leslee Watkins, who served as Birmingham East’s DON and
then ADON when Kretzschmar was first employed as MDS Coordinator. (Doc. 472). According to Watkins, Birmingham East held daily management meetings
during her tenure at the facility and there were “personal conversations that
occurred regarding plastic surgery, breast implants and butt pads.” (Id.) She
asserts that “[t]he conversations were not just between Kendralia Kretzschmar and
myself, others were present and spoke freely regarding their thoughts, opinions and
personal inquiries regarding personal desires, likes and dislikes regarding the
above mention[ed] topic[s].” (Id.)
With respect to Burch’s observation that Kretzschmar had a brief consensual
affair with the Human Resources Representative, Kretzschmar asserts that “[a]t the
time [she] dated the co-worker she was not interim DNS and/or the ADNS. She
was the MDS Coordinator and it was prior to [her] promotion [to Interim DNS]
and Burch was aware of this before the promotion.”13 (Doc. 47 at 21 n.6).
With respect to Burch’s assertion that nursing department employees would
call her at night and on weekends when they needed assistance because
Kretzschmar would not answer or return their calls, Kretzschmar retorts that Burch
“posted flyers throughout the facility instruct[ing] nurses to call Burch.” (Doc. 47
at 4). It is apparent from Kretzschmar’s deposition testimony that the flyers were
posted after Malea Braxton was hired as the permanent DON at the facility, as it
was Kretzschmar’s “perception” that she was no longer the Interim DON when the
flyers were posted. (Kretzschmar Dep. at 139-41). Before then, employees had
been directed to call Kretzschmar if they had any nursing issues. (Id. at 141).
The Court notes that Kretzschmar has offered no evidentiary support for her assertion that
Burch was aware of her affair prior to promoting her to Interim DON, and merely cites her own
deposition testimony that the affair was “brief.” (Kretzschmar Dep. at 314-15).
Kretzschmar’s Personal Items
On July 12, 2013, the Friday before Malea Braxton was scheduled to begin
work as Birmingham East’s permanent DON, Burch and Charlotte Nelson, a nurse
consultant, removed a number of Kretzschmar’s personal items from the DON
office in preparation for Braxton’s arrival. They packed the items in a box and put
the box in the MDS Coordinator’s office. No other employees assisted them.
Because Kretzschmar was out sick that day, she was not present to remove the
items herself. (Burch Decl. at ¶ 13; Kretzschmar Dep. at 152).
Kretzschmar’s Text Messages to Amanda Gillott
On Saturday afternoon, July 13, 2013, Kretzschmar sent the following text
message to Amanda Gillott, a Caucasian who was employed as a Licensed
Practical Nurse (“LPN”) at Birmingham East: “Amanda I just wanted you to know
that I thought you were a kind person and I thought very highly of you but just like
the others your time will come too.” (Doc. 43-5 at 15). Gillott responded: “I have
no idea what you are talking about Shay [Kretzschmar].” (Id. at 16). Kretzschmar
replied: “Sure you don’t. You are just like leslie and sandy a back stabber. I don’t
understand what you people get out of trying to hurt other people and stab them in
the back. Just remember what goes around comes around.” (Id. at 17).
On Monday, July 15, 2013, Gillott showed Burch the text messages she had
received from Kretzschmar on Saturday. Gillott characterized the text messages as
threatening and racially derogatory and complained that they created a “hostile
work environment.” After reviewing the text messages, Burch met with
Kretzschmar, who confirmed that she had sent the texts to Gillott. Kretzschmar
told Burch she sent the text messages to Gillott after Shaunnan Cook, another
Birmingham East employee, told her that Gillott had said she (Kretzschmar) would
not make a good DON or ADON and that Gillott would not work for her.
Kretzschmar said that Cook had warned her not to trust Gillott because Gillott was
not really her friend. Kretzschmar told Burch that she sent the text messages to
Gillott to let her know that she was a “snake in the grass.” (Burch Decl. at ¶ 14).
At her deposition, Kretzschmar denied that her reference to “you people” in her
second text message to Gillott had anything to do with race. She stated that it was
just a reference to how she had been treated by Gillott, Leslee Watkins, and Sandy
Copeland. Kretzschmar also confirmed that the statements Cook attributed to
Gillott were hearsay and that Gillott did not make any of the statements directly to
her face. (Kretzschmar Dep. at 156-60).
During her meeting with Kretzschmar on July 15, 2013, Burch informed
Kretzschmar that she was going to investigate Gillott’s complaint. Burch also
informed Kretzschmar that she did not believe Kretzschmar was ready to assume
the ADON position and was going to return Kretzschmar to her former position as
MDS Coordinator at her former rate of pay. (Burch Decl. at ¶ 14; Kretzschmar
Dep. at 183). According to Burch, she had already decided not to promote
Kretzschmar to ADON before Gillott complained about Kretzschmar’s text
messages. However, Kretzschmar’s actions in sending the texts “confirmed [and]
provided additional grounds” for the decision. (Burch Decl. at ¶ 14). According to
Burch, “[e]ven if Ms. Gillott made the statements as alleged by Ms. Cook, it was
simply not appropriate for Ms. Kretzschmar, as the Interim [DON], to send
threatening text messages to a subordinate.” (Id.)
Burch investigated the matter further but was unable to verify that Gillott
had made the statements Shaunnan Cook attributed to her. On July 18, 2013,
Burch again met with Kretzschmar and gave her a counseling memorandum that
summarized their prior meeting on July 15 and reiterated that Burch did not feel
Kretzschmar was ready to assume the ADON position. (Burch Decl. at ¶ 15; Doc.
43-4 at 26). Burch also stated in the memorandum that Kretzschmar was “creating
racial tension in the facility.” (Doc. 43-4 at 26). Burch also noted that Kretzschmar
had asked the Human Resources Director whether she would get to stay at the rate
of pay she had been receiving as Interim DON, and that Kretzschmar had made
“threatening comments that she had an attorney and was suing [Birmingham East]
for discrimination” when the Human Resources Director informed her that she
would return to her MDS Coordinator pay rate. (Id.). Kretzschmar signed the
counseling memorandum. (Id.)
The next day, July 19, 2013, Kretzschmar sent Burch a follow-up email.
(Doc. 43-5 at 19). She denied creating any “racial division” at Birmingham East.
(Id.) She accused Gillott of antagonizing her and stated that she felt she was
working in a “hostile working environment.” (Id.) She also stated that she was
“upset” and “under duress” when she signed the counseling memorandum and did
not know what she had signed. (Id.)
Burch forwarded Kretzschmar’s email to Crystal Robinson, the Regional
Human Resources consultant to Birmingham East, and then contacted Robinson to
discuss the matter.14 Robinson, an African-American, advised Burch that all of the
allegations in the email could violate Birmingham East’s harassment policy. She
recommended that Burch reopen her investigation to ensure she had all the facts.
Robinson and Burch also discussed suspending the three employees involved in the
underlying incident—Kretzschmar, Gillott, and Cook. Burch agreed with
Robinson’s recommendations, reopened her investigation, and suspended
Kretzschmar, Gillott, and Cook on July 22, 2013. (Burch Decl. at ¶ 16).
Robinson worked for an administrative services company that provides consulting services to
Birmingham East. She was not a member of Birmingham East’s management. (Burch Decl. at ¶
According to Burch, she was unable to uncover any evidence that
Kretzschmar was being subjected to a hostile work environment or was being
antagonized by Gillott. She also was unable to find any evidence corroborating
Cook’s allegations—which Gillott denied—that Gillott had stated that
Kretzschmar would not be a good DON or ADON and that Gillott would not work
for her. Burch was able to confirm that Cook had told Kretzschmar not to trust
Gillott and that Gillott was not her friend, as Cook admitted making those
statements to Kretzschmar. (Burch Decl. at ¶ 17).
According to Burch, the results of her reopened investigation confirmed that
Kretzschmar was guilty of inappropriate behavior (sending the text messages to
Gillott), Cook was guilty of gossiping, and Gillott was not guilty any wrongdoing.
Burch determined that Kretzschmar’s behavior was the most serious, because she
was the Interim DON when the incident occurred.15 (Burch Decl. at ¶ 18). Based
on her findings, Burch returned Gillott and Cook to work after three days and
returned Kretzschmar to work after five days. Burch paid Gillott for the days she
was suspended, but did not pay Cook or Kretzschmar. (Burch Decl. at ¶ 18).
Kretzschmar testified at her deposition that it was her “perception” that she was no longer
serving in the Interim DON position when she sent the text messages. (Kretzschmar Dep. at
Kretzschmar’s Medication Error
On Saturday, July 20, 2013, prior to Kretzschmar’s suspension, Burch
instructed several nurses, including Kretzschmar and Marilyn Caudle (a Caucasian
who, like Kretzschmar, worked as an MDS Coordinator), to work a shift
administering medications to residents, due to several charge nurses having called
off that day. According to Burch, all RNs and LPNs at Birmingham East are
required to work such shifts when needed. During her shift, Kretzschmar made a
medication error. Kretzschmar indicated on a resident’s Medication
Administration Record (“MAR”) that she had given the resident a narcotic
mediation when she had not done so. Instead, Kretzschmar left the medication
unsecured on the medication cart. Caudle, who relieved Kretzschmar, found the
unsecured medication and notified Burch. (Burch Decl. at ¶¶ 19 & 21).
Kretzschmar does not deny leaving the medication on the cart. According to
Kretzschmar, she had “very little” experience working on the medication cart
because she was an RN supervisor and working on the medication cart was
“mostly” an LPN duty. (Kretzschmar Dep. at 212). Kretzschmar asserts that she
signed the resident’s MAR when she “pull[ed]” the medication, but was unable to
administer the medication because the resident was asleep. (Id. at 209-10).
Kretzschmar left the medication on the cart intending to “bring [it] back later.” 16
(Id. at 210). She also had to assist another patient who had fallen, which took her
attention away from the medication she left on the cart. (Id. at 218).
Burch determined that Kretzschmar was guilty of improperly completing the
MAR and failing to properly dispose of the narcotic medication. On July 29,
2013, after Kretzschmar returned from her suspension, Burch issued her an
Employee Corrective Counseling Form, a form of discipline that did not affect
Kretzschmar’s salary or job status. According to Burch, she has disciplined “many
other” nurses at Birmingham East, including Caucasian nurses, for similar
medication errors. (Burch Decl. at ¶ 21).
Kretzschmar’s Request for Vacation
In August 2013, Kretzschmar put in a request for vacation. (Burch Decl. at
¶ 23; Kretzschmar Dep. at 249-50). There is a dispute as to whether her request
was approved unconditionally. According to Kretzschmar, Burch agreed to her
vacation and “signed the papers to say that [the] vacation was approved.”17
(Kretzschmar at 251). Burch, on the other hand, maintains that she approved
Kretzschmar’s vacation request provided that her MDS assessments were
Although Kretzschmar initially admitted that she left the medication on the cart, she later
testified that she “[did]n’t really recall leaving the medication on the cart.” (Kretzschmar Dep. at
221-22). She did not, however, deny that the incident occurred.
Kretzschmar testified that she did not keep a copy of the “papers” Burch allegedly signed
approving her vacation, and no such papers appear in the record. (Kretzschmar Dep. at 251).
completed. (Burch Decl. at ¶ 23). Birmingham East’s payroll records reflect that
Kretzschmar took two vacation days in August 2013 and was paid for both days.
(Id.; Doc. 43-5 at 46-49). Kretzschmar does not recall taking any vacation that
month and contends that Burch cancelled her vacation because her assessments
were behind. (Kretzschmar Dep. at 251, 253-54).
Kretzschmar’s EEOC Charge
On August 28, 2013, Kretzschmar filed a charge of discrimination with the
EEOC against Birmingham East. In her EEOC Charge, Kretzschmar checked the
box for discrimination based on “race” and stated as follows:
I am a Black female. I was hired as the MDS Coordinator for the
above named employer in July of 2012. I performed my job in an
exemplary manner. In June of 2013, I was asked to perform the duties
of interim Director of Nursing until a permanent replacement was
found for the previous Director of Nursing. I was told that once the
permanent position was filled, I would be placed in the position of
Assistant Director of Nursing. I moved into the office and began
performing the duties as the Director of Nursing. In or about July of
2013, I received an unfavorable text message from a co-worker
concerning my placement in the interim position. I responded to the
text message; however, my response was not received as I intended. I
was told by the Executive Director, Melody Burch that I was creating
a racially hostile work environment and I was being suspended
pending an investigation. Prior to my suspension, my personal
belongings were moved from my office without any regard to their
importance. When I returned to work, I was placed in the position
that I originally occupied and my pay was reduced. I am aware that
Amanda Galliot [sic], White, was suspended for making racially
motivated statements and unlike me, received a promotion after she
returned to work.
I believe that I have been discriminated against and subjected to
different terms and conditions because of my race, Black in violation
of Title VII of the Civil Rights Act of 1964, as amended.
(Doc. 1-2 at 3).
On September 8, 2013, Kretzschmar sent an email to Burch with the subject
line “prn effective[ ] immediately.” (Burch Decl. at ¶ 24; Doc. 43-5 at 51). In the
email, Kretzschmar informed Burch that she no longer wanted to work full time at
Birmingham East and only wanted to work “prn” (as needed) at that time. (Doc.
43-5 at 51). She further stated that due to the “short notice” she was “willing to
come in a few days a week until you find someone to replace me.” (Id.) Burch
interpreted Kretzschmar’s email as a resignation and by email dated September 9,
2013, notified Kretzschmar that she accepted the resignation “effective
immediately.” (Burch Decl. at ¶ 24; Doc. 43-5 at 51). According to Burch,
Birmingham East does not allow employees “to simply announce that they are
changing their employment status from full time to some sort of permanent ‘PRN’
status” and Birmingham East did not have any need for an MDS Coordinator who
worked on only a PRN basis. (Burch Decl. at ¶ 24). When Burch advised
Kretzschmar that she was accepting her resignation, Burch was unaware that
Kretzschmar had filed an EEOC Charge against Birmingham East. (Id. at ¶ 26).
Kretzschmar denies that she resigned and points out that she did not use the
word “resign” in her email to Burch. (Doc. 47 at 12). Kretzschmar contends that
she was “forced out” after she advised Burch that she wanted to go PRN.
(Kretzschmar Dep. at 285). She admits that MDS Coordinator is a full-time
position, but contends that she was denied the opportunity to work on a PRN basis
until a permanent replacement was hired. (Id. at 287).
Kretzschmar did not receive a payout of her unused personal and vacation
time. According to Burch, Kretzschmar was not entitled to such a payout because
she did not give four weeks advance notice prior to her resignation and did not
work all of the days she was scheduled to work during the notice period. (Burch
Decl. at ¶ 25).
Birmingham East’s Hiring of a New ADON
After Burch hired Malea Braxton as Birmingham East’s permanent DON
and returned Kretzschmar to her MDS Coordinator position in July 2013, Burch
decided not to fill the vacant ADON position at that time. According to Burch,
Braxton informed her that she was not sure she would need an ADON, as she had
previously worked as a DON at larger long-term care facilities without the
assistance of an ADON. Burch told Braxton that she would let Braxton determine
whether she needed or wanted to hire an ADON in the future. (Burch Decl. at ¶
In October 2013, after Kretzschmar no longer worked at Birmingham East,
Braxton advised Burch that she wanted to make Dakota Cheatham, an RN at the
facility, the ADON. (Burch Decl. at ¶ 27). Cheatham is Caucasian. (Kretzschmar
Dep. at 227). At that time, Cheatham was serving in a Unit Manager position,
having been placed in that position by Braxton in August 2013. According to
Burch, Braxton, as the DON, was responsible for making hiring and promotion
decisions with respect to Unit Managers. When Braxton told Burch that she
wanted to make Cheatham the ADON in October 2013, Burch informed Braxton
that she could make that decision on her own, without Burch’s input. Braxton then
appointed Cheatham to the ADON position. (Burch Decl. at ¶¶ 27-28).
As noted, the Court’s ruling on Birmingham East’s motion to dismiss
allowed Kretzschmar to pursue (1) her claims under Title VII and Section 1981
alleging race discrimination as to her “suspension, demotion, and pay reduction” in
July 2013; (2) her claims under Title VII and Section 1981 alleging retaliatory
discharge; (3) her claim under Section 1981 for alleged retaliatory acts other than
discharge; and (4) her claim under Section 1981 alleging a hostile work
environment. Birmingham East has moved for summary judgment on each of
Kretzschmar’s Hostile Work Environment Claim
As an initial matter, the Court notes that Kretzschmar has not addressed or
otherwise opposed Birmingham East’s motion for summary judgment on her
hostile work environment claim. She argues in her response to the motion for
summary judgment that the motion is due to be denied as to her “racial
discrimination claims” and her “claims of retaliation,” but she offers no argument
with respect to her hostile work environment claim, which is not even mentioned
anywhere in her response. (Doc. 47 at 15-20). Accordingly, Kretzschmar has
effectively conceded her hostile work environment claim and the claim is subject
to dismissal. See Fischer v. Fed. Bureau of Prisons, 349 F. App’x 372, 375 n.2
(11th Cir. 2009) (claim waived where not addressed by plaintiff in response to
defendant’s motion for summary judgment); Childress v. Walker, 943 F. Supp. 2d
1332, 1349 (M.D. Ala. 2013) (claim conceded when plaintiff “failed to
meaningfully address it in response to Defendants’ summary judgment motion”);
cf. Coal. for the Abolition of Marijuana Prohibition v. City of Atlanta, 219 F.3d
1301, 1326 (11th Cir. 2000) (“[F]ailure to brief and argue this issue during the
proceedings before the district court is grounds for finding that the issue has been
abandoned.”); McMaster v. United States, 177 F.3d 936, 940–41 (11th Cir. 1999)
(noting that a claim may be considered abandoned when the allegation is included
in the plaintiff's complaint but he fails to present any argument concerning the
claim to the district court).
Kretzschmar’s Race Discrimination Claims
The Applicable Legal Framework
Kretzschmar’s race discrimination claims are based on two separate
employment actions: (1) Birmingham East’s failure to make her the facility’s
permanent ADON in July 2013 and (2) her suspension without pay later that same
month. Because Kretzschmar relies on circumstantial evidence to prove her
claims, they are evaluated under the framework established by the Supreme Court
in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d
668 (1973), and Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248, 101
S. Ct. 1089, 67 L. Ed. 2d 207 (1981):
Under this 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 Combs v.
Plantation Patterns, 106 F.3d 1519, 1527-28 (11th Cir. 1997). A
plaintiff establishes a prima facie case of disparate treatment by
showing that she was a qualified member of a protected class and was
subjected to an adverse employment action in contrast with similarly
situated employees outside the protected class. See, e.g., McDonnell
Douglas, 411 U.S. at 802, 93 S. Ct. at 1824; Holifield v. Reno, 115
F.3d 1555, 1562 (11th Cir. 1997). The methods of presenting a prima
facie case are not fixed; they are flexible and depend to a large degree
upon the employment situation. See, e.g., Nix v. WLCY Radio/Rahall
Communications, 738 F.2d 1181, 1185 (11th Cir. 1984).
When the plaintiff establishes a prima facie case, which creates
the presumption of discrimination, the burden of production shifts to
the employer to articulate a legitimate, nondiscriminatory reason for
its actions. 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, 101
S. Ct. at 1094. If the employer satisfies its burden by articulating one
or more reasons, then the presumption of discrimination is rebutted,
and the burden of production shifts to the plaintiff to offer evidence
that the alleged reason of the employer is a pretext for illegal
discrimination. Id. at 255-26, 101 S. Ct. at 1094-95.
Wilson v. B/E Aerospace, Inc., 376 F.3d 1079, 1087 (11th Cir. 2004). Using that
framework, the Court will first address Kretzschmar’s claim regarding Burch’s
failure to make her the facility’s ADON, and will then consider her suspension
Kretzschmar’s Demotion/Promotion Denial Claim
Kretzschmar alleges that Birmingham East discriminated against her based
on her race when Burch failed to make her the facility’s permanent ADON after
hiring Malea Braxton as the new DON in July 2013. Kretzschmar characterizes
Burch’s decision not to make her the ADON and to return her to her MDS
Coordinator position as a “demotion,” while Birmingham East characterizes the
decision as a “promotion denial.” The parties’ semantic disagreement centers on
whether Kretzschmar was actually promoted to ADON when she was asked to
assume the position of Interim DON in June 2013. Kretzschmar argues that “on
June 13, 2013 [she] was promoted to Assistant Director of Nursing … and at the
same time was asked to perform duties as the Interim Director of Nursing until that
spot was filled.” (Doc. 47 at 2). She thus contends that Burch “demoted” her when
Burch returned her to her MDS Coordinator position after hiring Braxton as the
new DON. (Id. at 3, 18). Birmingham East, on the other hand, asserts that Burch
“temporarily promoted [Kretzschmar] to Interim Director of Nursing Services …
in June 2013 from her position as MDS Coordinator, and allegedly promised to
make her ADNS after a permanent DNS was hired.”18 (Doc. 50 at 2 n.2).
Birmingham East contends that “Burch’s failure ultimately to make [Kretzschmar]
the ADNS was a denied promotion, not a demotion.” (Id.)
The Court agrees with Birmingham East that Burch’s failure to make
Kretzschmar the permanent ADON is more accurately characterized as a
“promotion denial” than a “demotion.” Kretzschmar testified at her deposition that
when Burch asked her to serve as the Interim DON, Burch “said she felt like I was
qualified to do the interim director position, to fill in until she found a more
qualified individual. And at that time I would be her assistant, the assistant to the
director of nursing ….” (Kretzschmar Dep. at 80). She further testified that
As previously noted, Burch denies that she promised to make Kretzschmar the permanent
ADNS and asserts that she only agreed to consider her for the position.
Burch “said that she would pay me at the level of the assistant director of nursing,
the position that I would hold once the director of nursing was filled.” (Id.)
Similarly, Kretzschmar alleged in her EEOC Charge: “In June of 2013, I was asked
to perform the duties of interim Director of Nursing until a permanent replacement
was found for the previous Director of Nursing. I was told that once the permanent
position was filled, I would be placed in the position of Assistant Director of
Nursing.” (Doc. 1-2 at 3). Contrary to Kretzschmar’s current contention that she
was promoted to ADON in June 2013, it is evident that Kretzschmar understood
she would not become the ADON, and would not “hold” or be “placed in” that
position, until Burch hired a permanent DON. When Burch failed to make
Kretzschmar the ADON after hiring Braxton as the permanent DON, she denied
Kretzschmar a promotion she had allegedly been promised. Burch did not demote
Kretzschmar from the position of ADON, because Kretzschmar never held that
position. Accordingly, the Court will analyze Kretzschmar’s claim as a
discriminatory promotion denial (failure to promote) claim. 19
To the extent Kretzschmar also alleges a discriminatory pay reduction claim in her amended
complaint, the claim is encompassed within her promotion denial claim. Burch’s decision not to
promote Kretzschmar to ADON when her Interim DON appointment ended, and instead to return
Kretzschmar to her MDS Coordinator position, resulted in a corresponding reduction in
Kretzschmar’s pay back to the rate she had been receiving as MDS Coordinator. (Burch Decl. at
¶ 14). In other words, Kretzschmar’s promotion denial claim subsumes any pay reduction claim.
The Court also notes that Kretzschmar does not address or offer any argument in support of a
discriminatory pay claim in her response to Birmingham East’s motion for summary judgment.
1. Prima Facie Case
To establish a prima facie case of discriminatory failure to promote, a
plaintiff must demonstrate that “(i) he or she belonged to a protected class; (ii) he
or she was qualified for and applied for a position that the employer was seeking to
fill; (iii) despite qualifications, he or she was rejected; and (iv) the position was
filled with an individual outside the protected class.” Vessels v. Atlanta Indep. Sch.
Sys., 408 F.3d 763, 768 (11th Cir. 2005) (footnote omitted) (citing McDonnell
Douglas, 411 U.S. at 802).20 Here, Birmingham East argues that Kretzschmar
cannot meet the fourth prong of her prima facie case—namely, that the ADON
position was filled by a person outside her protected class. Birmingham East
asserts that because it is “undisputed [that] Burch and Braxton specifically decided
not to fill [the ADON position] in July 2013,” Kretzschmar cannot establish that
the position was filled by someone outside her class and, consequently, “no
inference of discrimination arises.” (Doc. 42 at 12).
Kretzschmar argues that she has established a prima facie case of
discrimination as to Burch’s decision not to make her the ADON, asserting that she
was “replaced” as ADON by Dakota Cheatham, a Caucasian. (Doc. 47 at 15-16).
Even if Kretzschmar’s claim were construed as a discriminatory demotion claim, her prima
facie burden would be essentially the same. To establish a prima facie case of discriminatory
demotion, a plaintiff must show “(1) that she was a member of a protected class, (2) that she was
qualified for the job, (3) that she suffered an adverse employment action, and (4) that she was
replaced by someone outside the protected class.” Hinson v. Clinch Ctny., Ga. Bd. of Educ., 231
F.3d 821, 828 (11th Cir. 2000).
Although the Court does not agree that Kretzschmar was “replaced” as ADON (as
discussed above, Kretzschmar never held the ADON position), it is undisputed that
the position of ADON was ultimately filled by Cheatham, a person outside
Kretzschmar’s protected class.
Birmingham East argues that the promotion of Cheatham to ADON does not
establish the fourth prong of Kretzschmar’s prima facie case for two reasons. First,
Birmingham East argues that the decision to promote Cheatham to ADON was
made by Malea Braxton (the new DON), not by Burch. Birmingham East asserts
that this “difference in decision makers” prevents Kretzschmar from establishing
her prima facie case. (Doc. 42 at 13) (citing Silvera v. Orange Ctny. Sch. Bd., 244
F.3d 1253, 1261 n.1 (11th Cir. 2001) (observing that “difference in treatment by
different supervisors or decision makers can seldom be the basis for a viable claim
of discrimination”)). The Court does not agree. It is undisputed that Braxton
informed Burch that she wanted to make Cheatham the ADON in October 2013
and that Burch allowed Braxton to make that decision. (Burch Decl. at ¶ 27).
Although Burch asserts that she had no input into Braxton’s decision, she was on
notice of what Braxton intended to do and at least tacitly approved the decision.
For summary judgment purposes, the Court finds that Burch had sufficient
involvement in the decision to promote Cheatham to ADON to make her a
decision-maker with respect to Cheatham’s promotion, even if she was not the
Birmingham East also argues that the “three month time lapse” between the
time Burch decided not to promote Kretzschmar to ADON (July 2013) and the
time Cheatham was promoted to ADON (October 2013) prevents Kretzschmar
from establishing her prima facie case. (Doc. 42 at 12). The Court agrees with
Birmingham East. “In a failure to promote case, the plaintiff must show ‘that other
employees of similar qualifications who were not members of the protected group
were indeed promoted at the time the plaintiff’s request for promotion was
denied.’” Brown v. Ala. Dep’t of Transp., 597 F.3d 1160, 1179 (11th Cir. 2010)
(emphasis omitted) (quoting Chapell-Johnson v. Powell, 440 F.3d 484, 488 (D.C.
Cir. 2006); see also Guimares v. NORS, 2009 WL 1098092, *5 (S.D. Fla. 2009)
(plaintiff failed to establish a prima facie case of failure to promote where “there
were no openings for, or employees promoted to, a position of supervisor during
the period when Plaintiff sought a promotion” and “no supervisory position was
filled until more than six months after Plaintiff’s termination”). Here, no employee
was promoted to the position of ADON from mid-July to mid-October 2013.
Kretzschmar has not challenged Burch’s assertion that she did not fill the position
during this period because Braxton, the new ADON, had not decided whether she
needed an ADON. (Burch Decl. at ¶ 22). Moreover, by the time Cheatham was
appointed to the position in October, Kretzschmar no longer worked at
Birmingham East, Kretzschmar having informed Burch in September that she no
longer desired to have full-time employment at the facility and Burch having
accepted her “resignation.” Under these circumstances, Kretzschmar has failed to
meet her prima facie burden to show that the ADON position was filled by a
person outside her protected class at the time her promotion was denied.
Even assuming that Kretzschmar has established a prima facie case of
discrimination with respect to Burch’s decision not to promote her to ADON,
Birmingham East has articulated a legitimate, non-discriminatory reason for the
decision—Burch’s determination that Kretzschmar was not ready to assume the
position of ADON due to the lack of “maturity, professionalism, judgment,
leadership and responsibility” that Kretzschmar displayed while serving as Interim
DON, along with the text messages Kretzschmar sent to Amanda Gillott.21 (Burch
Decl. at ¶¶ 11, 14). Within this overarching reason, Birmingham East has pointed
to Burch’s observation that Kretzschmar exhibited inappropriate behavior during
daily management meetings; Burch’s discovery that Kretzschmar had been
involved in a brief consensual sexual affair with the Human Resources
For brevity’s sake, the Court will refer to Burch’s concerns about Kretzschmar’s “maturity,
professionalism, judgment, leadership and responsibility” as “professionalism” concerns or
concerns about Kretzschmar’s “unprofessional” conduct.
Representative; Kretzschmar’s failure to answer or return calls from nursing
department employees who needed assistance at night and on weekends; and the
“threatening” nature of the text messages Kretzschmar sent to Gillott. (Id.) These
are legitimate, non-discriminatory reasons for not promoting Kretzschmar to
ADON. See Gamble v. Aramark Uniform Servs., 132 F. App’x 263, 266 (11th Cir.
2005) (even assuming the plaintiff established a prima facie case of discriminatory
failure to promote, the defendant articulated legitimate non-discriminatory reasons
for its decision: the plaintiff’s “lack of interpersonal skills and the poor evaluation
of his work performance rendered him the less suitable candidate.”).
Birmingham East having articulated legitimate, non-discriminatory reasons
for its decision, the burden shifts to Kretzschmar to come forward with evidence
that the alleged reasons are a pretext for discrimination. Wilson, 376 F.3d at 1087.
Kretzschmar must “produce sufficient evidence for a reasonable factfinder to
conclude that each of the employer’s proffered nondiscriminatory reasons is
pretextual.” Chapman v. AI Transport, 229 F.3d 1012, 1037 (11th Cir. 2000). In
[The court does] not judge whether an employer’s decisions are
“prudent or fair,” and the sole concern is whether unlawful
discriminatory animus motivated an employment decision. Damon v.
Fleming Supermarkets of Fla., Inc., 196 F.3d 1354, 1361 (11th Cir.
1999). Furthermore, a reason is not pretextual “unless it is shown
both that the reason was false, and that discrimination was the real
reason.” St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 515, 113 S. Ct.
2742, 125 L. Ed. 2d 407 (1993). A plaintiff cannot show pretext
merely by showing that an employer’s good faith belief that she
engaged in misconduct is mistaken. EEOC v. Total Sys. Servs., Inc.,
221 F.3d 1171, 1176-77 (11th Cir. 2000).
Foster v. Biolife Plasma Servs., LP, 566 F. App’x 808, 811 (11th Cir. 2014).
Kretzschmar contends that all of Birmingham East’s alleged reasons for
denying her the ADON position are pretextual. As best as the Court can discern,
Kretzschmar appears to be advancing a three-part pretext argument. First,
Kretzschmar argues that the position statement Birmingham East submitted to the
EEOC in response to her charge of discrimination discusses only the text messages
she sent to Gillott and none of the other examples of alleged unprofessional
conduct cited by Burch in her Declaration, which indicates that Burch “created”
those other reasons after the fact. (Doc. 47 at 13-14, 15). Second, Kretzschmar
argues that the text messages could not have been the true reason Burch decided
not to promote her to ADON, because she sent the text messages to Gillott on July
13, 2013, two days after Burch informed her that she was not going to be promoted
to ADON. (Id. at 5, 9, 15). Third, Kretzschmar offers explanations for each of the
alleged acts of unprofessional conduct cited by Burch, asserting that “there is no
real reason” Burch did not promote her other than her race. (Id. at 14-15). Burch
thus argues that she has met her pretext burden. The Court does not agree.
The fact that Birmingham East’s position statement discusses only the text
messages Kretzschmar sent to Gillott is insufficient to establish pretext. Evidence
that an employer has additional reasons for a challenged employment decision
beyond those asserted in its position statement does not show pretext unless the
reasons are inconsistent. See Vickers v. Hyundai Motors Mfg. Alabama, LLC, 648
F. App’x 751, 754 (11th Cir. 2016) (“the existence of multiple non-retaliatory or
nondiscriminatory reasons for the employer’s action does not show pretext,
especially where those reasons are not inconsistent”); Moore v. Jefferson Cnty.
Dep’t of Human Res., 277 F. App’x 857, 859-60 (11th Cir. 2008) (finding
employer’s differing reasons for challenged action between its position statement
and deposition testimony did not establish pretext where the reasons were not
inconsistent). Here, Burch’s overarching reason for not promoting Kretzschmar—
her concerns about Kretzschmar’s professionalism—is consistent with
Birmingham East’s position statement. Indeed, Birmingham East expressly stated
in its position statement that Burch found Kretzschmar’s actions in sending the text
messages to Gillott to be “unwarranted, unprofessional and highly inappropriate.”
(Doc. 47-11 at 4). Birmingham East also stated in the position statement that when
Burch informed Kretzschmar that she did not believe Kretzschmar was ready to be
ADON, Burch “encouraged her to continue working on improving her professional
skills so that she would be prepared when opportunities arose in the future.” (Id.)
Professionalism concerns are reflected in both Birmingham East’s position
statement and Burch’s Declaration.
Kretzschmar’s argument that the text messages she sent to Gillott could not
have been the true reason Burch decided not to promote her to ADON also misses
the mark. Even assuming that Burch informed Kretzschmar that she was not going
to be promoted to ADON two days before Kretzschmar sent the offending texts to
Gillott (Burch contends that she advised Kretzschmar of her decision two days
after Kretzschmar sent the texts), Burch does not contend that the text messages
were the precipitating factor in her decision. Rather, Burch asserts that the text
messages, and Kretzschmar’s handling of the allegations made by Shaunnan Cook
about Gillott, “not only confirmed but provided additional grounds” for her
decision, which she admits she made before she learned about the text messages.
(Burch Decl. at ¶ 14).
Kretzschmar’s efforts to explain the instances of unprofessional conduct
identified by Burch in her Declaration are also insufficient to establish pretext.
With respect to Burch’s observation regarding Kretzschmar’s behavior at
management meetings, Kretzschmar argues that “during the management meetings
… she did not cut up, joke or make any inappropriate comments that no other
department head or manager was making.” (Doc. 47 at 14). Kretzschmar notes
that Leslee Watkins, a Caucasian, “admits that they all participated in jovial
conversation regarding butt pads and plastic surgery” but that Watkins, unlike
Kretzschmar, “was placed in the ADNS position as promised once the permanent
DNS was hired.” (Id. at 16). Birmingham East responds that Watkins’s
employment at Birmingham East ended before Kretzschmar was appointed Interim
DON and that Burch’s decision not to promote Kretzschmar to ADON was based
on her observations of Kretzschmar’s behavior while serving as Interim DON.
(Doc. 50 at 5-6). Birmingham East also argues that the conduct admitted by
Watkins—conversations about plastic surgery, breast implants, and butt pads—is
“qualitatively different” than the conduct Kretzschmar engaged in while Interim
DON, which included placing a mannequin’s penis in a co-worker’s chair and
removing a butt pad from her pants and swinging it in the air. (Id. at 5). Lastly,
Birmingham East argues that there is no evidence Burch ever promised to make
Watkins the ADNS and that even if she did, “such fact would not be evidence of
pretext because there is no evidence that Watkins had issues with professionalism
like Kretzschmar.” (Id. at 12).
If Kretzschmar’s behavior at management meetings were the sole example
of Kretzschmar’s unprofessional conduct cited by Burch, the Court might be
inclined to find that Kretzschmar has made a sufficient showing of pretext.
Although Birmingham East argues that comparing Kretzschmar to Watkins is an
“apples to oranges” comparison, Burch admits that when she appointed Watkins to
the position of “permanent” DON, her ultimate intention was to make Sandy
Copeland the DON once her probation was lifted. (Burch Decl. at ¶ 5). In other
words, barring Copeland’s failure to successfully complete the terms of her
probation, Burch intended for Watkins’s tenure as DON to be temporary, just like
Kretzschmar’s. After Copeland’s probation was lifted and she was promoted to
DON, Burch moved Watkins to ADON notwithstanding Watkins’s admitted
participation in inappropriate conversations during management meetings.
Regardless of whether Burch had promised Watkins the ADON position or not, she
appointed Watkins ADON even though Watkins, while serving as DON, engaged
in similar (although not identical) behavior as Kretzschmar. If Kretzschmar’s
conduct at management meetings was the only reason articulated by Burch for not
promoting Kretzschmar, a reasonable factfinder could conclude that the proffered
reason was a pretext for discrimination.
However, Kretzschmar’s conduct at management meetings is not the only
example of unprofessional conduct cited by Burch. Burch also cites Kretzschmar’s
admitted sexual affair with a co-worker, which Burch asserts she learned about
during Kretzschmar’s tenure as Interim DON. (Burch Decl. at ¶ 11). Kretzschmar
contends that Burch was aware of the affair before promoting her to Interim DON
(doc. 47 at 14), but has not provided any evidence in support of her contention.
Burch also points to Kretzschmar’s failure to answer or return calls from nursing
department employees at night and on weekends when she was serving as Interim
DON. Kretzschmar argues that Burch “fails to mention that Burch posted flyers
throughout the facility instruct[ing] instructing nurses to call [her]” rather than
Kretzschmar (doc. 47 at 4), but Kretzschmar’s own deposition testimony confirms
that the flyers were not posted until after Burch had hired Malea Braxton as the
new DON (i.e., during Kretzschmar’s final week as Interim DON). (Kretzschmar
Dep. at 139-41). Kretzschmar admitted at her deposition that before the flyers
were posted, the nurses were directed to call her. (Id. at 141).
Moreover, nowhere in Kretzschmar’s response does she directly rebut any of
the reasons cited by Burch for finding her not ready to be ADON. Kretzschmar
does not deny making inappropriate comments at daily management meetings,
placing a mannequin’s penis in a co-worker’s chair, and removing a butt pad from
her pants and swinging it in the air; she does not deny having a sexual affair with
the Human Resources Representative; she does not deny failing to answer or return
calls from nursing department employees at night and on weekends; and she does
not deny sending the offending text messages to Gillott. She quarrels with Burch’s
reasons and offers excuses for her conduct, but never denies or rebuts any of the
reasons. Quarreling with an employer’s proffered reasons for its decision is
insufficient to show pretext. See Wilson, 376 F.3d at 1088 (“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. Quarreling with the reason is not
sufficient.” (citations omitted)).
Finally, Kretzschmar has not offered any evidence suggesting that Burch’s
real reason for not promoting her to ADON was racial discrimination.
Kretzschmar argues that when Copeland was terminated as DNS and Watkins
resigned as ADNS, Burch was “desperate” and “lied to Kretzschmar to get her to
accept the Interim DNS position with a guarantee [that she would stay] in the role
as ADNS once the new DNS was hire[d].” (Doc. 47 at 3). Even if Burch did lie to
Kretzschmar out of desperation, that in no way suggests, and is certainly not
evidence, that “Kretzschmar was never the intended ADNS because she was
African American,” as she argues in her response. (Id.) Indeed, it was Burch who
hired Kretzschmar, which gives rise to a permissible inference that no
discriminatory animus motivated her decision not to promote Kretzschmar to
ADNS. See Williams v. Vitro Servs. Corp., 144 F.3d 1438, 1443 (11th Cir. 1998)
(the fact that the same individual who hired and promoted the plaintiff was also
responsible for terminating him “give[s] rise to a permissible inference that no
discriminatory animus motivated” the employer’s actions (emphasis omitted));
Cole v. Mountain View Marketing, Inc., 744 F. Supp. 2d 1240, 1251 (S.D. Ala.
2010) (citing Williams). Kretzschmar has failed to rebut that inference.
In sum, Birmingham East has articulated legitimate, non-discriminatory
reasons for not promoting Kretzschmar to ADON, all related to Burch’s concerns
about Kretzschmar’s lack of professionalism. Kretzschmar has failed to make a
showing sufficient to permit a reasonable jury to find that the reasons articulated
by Burch for not promoting her are false, much less that the true reason was racial
discrimination. Accordingly, Birmingham East is entitled to summary judgment
on Burch’s claim for racial discrimination based on Birmingham East’s failure to
promote her to ADON.
Kretzschmar’s Suspension Claim
The Court’s ruling on Birmingham East’s motion to dismiss also allowed
Kretzschmar to pursue her race discrimination claim with respect to her suspension
in July 2013. Birmingham East has moved for summary judgment on that claim,
arguing that Kretzschmar cannot establish a prima facie case and cannot, in any
event, meet her burden to show that Birmingham East’s articulated reasons for
suspending her were a pretext for discrimination. (Doc. 42 at 17-20). In her
response, Kretzschmar does not respond directly to any of Birmingham East’s
arguments relating to her discriminatory suspension claim. In fact, the arguments
Kretzschmar advances in support of her discrimination claims address only her
“demotion” (promotion denial) and ignore her suspension. (Doc. 47 at 15-18). As
discussed above, Kretzschmar argues that she has established a prima facie case of
discrimination with respect to her “demotion” and that Birmingham East’s reasons
for her “demotion” are pretextual, but she offers no similar arguments with respect
to her suspension. 22 Consequently, a strong argument could be made that
Kretzschmar has conceded Birmingham East’s arguments and that her
discriminatory suspension claim has been waived. See Fischer, 349 F. App’x at
375 n.2; Childress, 943 F. Supp. 2d at 1349.
The Court, however, is unwilling to go that far. Notwithstanding
Kretzschmar’s failure to respond directly to Birmingham East’s arguments, she
does discuss the circumstances of her suspension at length in her response and does
highlight the differences between the suspensions she and Shaunnan Cook
(African-American) received and the suspension Amanda Gillott (Caucasian)
received. (Doc. 47 at 5-6). Construing Kretzschmar’s response broadly, the Court
is satisfied that Kretzschmar has not conceded Birmingham East’s arguments and
has not waived her claim alleging discrimination as to her suspension.
Accordingly, the Court will not dismiss the claim outright, but will instead proceed
to analyze Birmingham East’s arguments that Kretzschmar has not established a
prima facie case and has not met her pretext burden.
1. Prima Facie Case
To establish a prima facie case of racial discrimination under Title VII or
Section 1981, a plaintiff must show that “(1) she belongs to a protected class, (2)
she was subjected to an adverse employment action, (3) her employer treated
Kretzschmar does discuss her suspension in the context of her separate retaliation claim.
similarly situated employees outside her protected class more favorably, and (4)
she was qualified to do the job.” Blow v. Virginia College, 619 F. App’x 859, 862
(11th Cir. 2015) (citing Holifield v. Reno, 115 F.3d 1555, 1562 (11th Cir. 1997)).
Birmingham East argues that Kretzschmar has failed to make out a prima facie of
discrimination with respect to her suspension because she has not identified a
similarly situated comparator who was treated more favorably than she was. The
Court agrees with Birmingham East.
“To make a comparison of the plaintiff’s treatment to that of non-minority
employees, the plaintiff must show that [s]he and the employees are similarly
situated in all relevant respects.” Holifield, 115 F.3d at 1562. “[T]he quantity and
quality of the comparator’s misconduct [must] be nearly identical to prevent courts
from second-guessing employers’ reasonable decisions and confusing apples with
oranges.” Maniccia v. Brown, 171 F.3d 1364, 1368-69 (11th Cir. 1999). Here,
Burch suspended Kretzschmar, Gillott, and Cook on July 22, 2013, after Gillott
complained about the “threatening and racially derogatory” text messages she
received from Kretzschmar and Kretzschmar complained that Gillott was
“antagonizing” her. Burch suspended Kretzschmar, Gillott and Cook after
checking with Crystal Robinson (African-American), the Regional Human
Resources consultant to Birmingham East, who indicated that all of the allegations
could potentially violate Birmingham East’s harassment policy and advised Burch
to reopen her investigation to make sure she had all the relevant facts. (Burch Decl.
at ¶ 16). Kretzschmar implies that Burch treated Gillott more favorably because
she ended up suspending Gillott for three days with pay but suspended
Kretzschmar for five days without pay. However, Burch did not find Gillott guilty
of the same or nearly identical conduct as Kretzschmar. According to Burch, she
was unable to uncover any evidence that Kretzschmar was being antagonized by
Gillott or any evidence corroborating Cook’s allegations that Gillott had made
disparaging comments about Kretzschmar’s job performance, allegations that
Gillott expressly denied. Kretzschmar, on the other hand, admitted sending the
text messages in which she accused Gillott of being a “back stabber,” warned
Gillott that “your time will come too,” and referred to Gillott, Leslee Watkins, and
Sandy Copeland (all Caucasian) as “you people” (doc. 43-4 at 27, 29), all premised
upon unsubstantiated hearsay she had been told by Cook. This conduct is not the
same as or nearly identical to Gillott’s conduct, even assuming that Gillott made
negative comments about Kretzschmar to Cook (but not to Kretzschmar herself).
Gillott, therefore, is not a similarly situated comparator for purposes of
Kretzschmar’s suspension claim.
Kretzschmar also cites an unrelated incident involving Gillott and Letosha
Van Buren and seems to imply that the incident is further evidence of Burch’s
favorable treatment towards Gillott. In September 2012, Letosha Van Buren
(African-American) complained that Gillott had thrown a pair of scissors at her
while using profanity. (Burch Decl. at ¶ 30; Van Buren Aff. at ¶ 5). Burch
suspended Gillott pending an investigation. Burch ultimately confirmed that
Gillott had directed profanity towards Van Buren, but also learned that Gillott had
not thrown the scissors as alleged (rather, Gillott slid the scissors across the floor to
Van Buren). (Burch Decl. at ¶ 30). Burch brought Gillott back to work from her
suspension and issued her a Corrective Counseling Memo. (Id.) Burch did not pay
Gillott for the time she missed. (Id.)
Again, Gillott is not a similarly situated employee for purposes of
Kretzschmar’s suspension claim. The “scissors” incident between Gillott and Van
Buren and the “text messaging” incident between Kretzschmar and Van Buren are
not remotely similar and occurred ten months apart. Even if the two incidents were
similar, and even if the quality of Gillott’s conduct towards Van Buren could be
considered “nearly identical” to the quality of Kretzschmar’s conduct towards
Gillott, Burch suspended Gillott without pay for her conduct towards Van Buren,
thereby treating Gillott in the same manner as she later treated Kretzschmar. 23
Kretzschmar also argues that Gillott was the “true racist,” citing allegations made by Van
Buren in her affidavit that Gillott made some racial remarks at some unidentified time. (Doc. 47
at 10; Van Buren Aff. at ¶¶ 2-3). Not only are Van Buren’s allegations hearsay, Van Buren does
not state in her affidavit that she ever brought her allegations to Burch’s attention, and there is no
evidence that Burch was aware of Gillott’s alleged statements.
Accordingly, because Kretzschmar has not identified a similarly situated
comparator who was treated more favorably than she was, she has failed to
establish a prima facie of discrimination with respect to her suspension.
Even if Kretzschmar were able to establish a prima facie case, Birmingham
East has again articulated a legitimate, non-discriminatory reason for its decision to
suspend Kretzschmar —Kretzschmar’s potential violation of Birmingham East’s
harassment policy. See, e.g., Usry v. Reg’l Med. Ctr., Inc. 560 F. App’x 883, 888
(11th Cir. 2014) (employer’s explanation that it terminated plaintiff because she
violated company policy constituted a “valid, nondiscriminatory” reason for the
termination). Indeed, Burch suspended not only Kretzschmar but Gillott and Cook
as well, based on the recommendation of Crystal Robinson, who indicated to
Burch that all of the underlying allegations between the parties could violate the
Kretzschmar has failed to demonstrate that Birmingham East’s articulated
reason for suspending her is false or that the real reason was discrimination. As
discussed above, Burch suspended all three of the employees who were involved in
the underlying incident, not just Kretzschmar. After conducting a further
investigation, Burch was unable to corroborate the allegations Cook had made
about Gillott, while Kretzschmar admitted sending the offending text messages to
Gillott based on the hearsay she had been told by Cook. Under these
circumstances, Burch determined that Kretzschmar’s conduct was the most serious
and imposed a harsher suspension on her than on Gillott (and Cook).
Kretzschmar has not pointed to any deficiencies in Burch’s investigation
(other than to question the “subjective” nature of the investigation) or offered any
evidence that Burch did not conduct the investigation in good faith. Rather, she
quarrels with Burch’s conclusion that her actions were inappropriate. Kretzschmar
does not deny sending the underlying texts to Gillott, but argues that there was no
racial animus behind the texts and that the texts were not meant to be threatening.
(Kretzschmar Dep. at 155-58). She characterizes them as “text messages …
amongst friends who happened to be colleagues” and notes that the texts “were
done outside of work,” implying that there was nothing wrong with her sending the
texts. (Doc. 47 at 5). Burch, however, determined that the texts were inappropriate
and unprofessional and warranted a suspension, and Kretzschmar “cannot succeed
by simply quarreling with the wisdom” of Burch’s decision. Chapman, 229 F.3d at
1030. Even if Burch was mistaken in her findings, that would not be enough to
show pretext. “[A] plaintiff cannot show pretext merely by showing that an
employer’s good faith belief that the plaintiff engaged in misconduct is mistaken.”
Rawls v. State Dep’t of Human Res., 507 F. App’x 895, 898 (11th Cir. 2013); see
Usry, 560 F. App’x at 889 (“Plaintiff Usry has presented evidence from which a
jury could conclude that the results of [the employer’s] investigation were wrong
and that [the employer] made a poor decision when it terminated Usry. … But that
is not enough to show pretext ….”).
As before, Kretzschmar has failed to make a showing sufficient to permit a
reasonable jury to find that Burch’s articulated reason for suspending her is false,
much less that the true reason was racial discrimination. She has failed to meet her
burden to show pretext. Birmingham East is entitled to summary judgment on
Burch’s claim for racial discrimination based on her suspension.
Kretzschmar’s Retaliation Claims
The Court’s ruling on Birmingham East’s motion to dismiss also allowed
Kretzschmar to pursue her claims under Title VII and Section 1981 alleging
retaliatory discharge. To establish a claim of retaliation under Title VII or Section
1981, a plaintiff must prove that “[s]he engaged in statutorily protected activity,
[s]he suffered a materially adverse action, and there was some casual connection
between the two events.” Goldsmith v. Bagby Elevator Co., Inc., 513 F.3d 1261,
1277 (11th Cir. 2008) (citing Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S.
53, 126 S. Ct. 2405, 2410–16, 165 L. Ed. 2d 345 (2006)). The causal connection
must be proved according to “traditional principles of but-for causation,” which
requires proof “that the unlawful retaliation would not have occurred in the
absence of the alleged wrongful action or actions of the employer.” Univ. of Texas
Sw. Med. Ctr. v. Nassar, 133 S. Ct. 2517, 2533 (2013). If the plaintiff establishes
a prima facie case of retaliation, the employer must “articulate a legitimate,
nonretaliatory reason for the challenged employment as an affirmative defense to
liability.” Goldsmith, 513 F.3d at 1277. “The plaintiff bears the ultimate burden of
proving retaliation by a preponderance of the evidence and that the reason
provided by the employer is a pretext for prohibited retaliatory conduct.” Id.
Although it is not entirely clear from Kretzschmar’s response to
Birmingham East’s motion for summary judgment, Kretzschmar appears to be
alleging that she was “terminated” in September 2013 in retaliation for opposing
her alleged “demotion” and for complaining about discrimination and threatening
to get a lawyer. 24 (Doc. 47 at 19-20). Birmingham East argues that even assuming
Kretzschmar engaged in protected activity (which Birmingham East does not
concede), her retaliatory discharge claim fails because she was not terminated;
rather, she resigned. (Doc. 42 at 30; Doc. 50 at 19-20). See Hammon v. DHL
Airways, Inc., 165 F.3d 441, 450 (6th Cir.1999) (“Plaintiff failed to establish that
he suffered an adverse employment decision because he voluntarily resigned.”);
Yates v. City of Birmingham, 2016 WL 826730, *10 n.3 (N.D. Ala. Mar. 3, 2016)
Nowhere in Kretzschmar’s response does she allege that she was terminated in retaliation for
filing her EEOC Charge. Indeed, the evidence is undisputed that Burch was unaware that
Kretzschmar had filed the charge at the time of her termination/resignation. (Burch Decl. at ¶
(voluntary employment decisions cannot be considered adverse). Birmingham
East points to the email Kretzschmar sent to Burch on September 8, 2013, in which
Kretzschmar informed Burch that she no longer wished to have full-time
employment at the facility, that she only wanted to work “PRN” at that time, and
that she would come in a few days a week “until you find someone to replace me.”
(Doc. 43-4 at 40). Birmingham East argues that Burch reasonably interpreted
Kretzschmar’s email as a resignation, which she accepted the next day. (Id.)
Kretzschmar retorts that she never resigned, noting that she did not use the word
“resign” in her email. (Doc. 47 at 12). She contends that Burch “terminated” her
when she “asked to go PRN.” (Id.)
The Court finds Kretzschmar’s email to be ambiguous. It is not clear
whether Kretzschmar was advising Burch that she wanted to change her
employment status from full-time to PRN, or whether she was resigning and was
offering to work PRN only until she was replaced. Ultimately, however, it does
not matter whether Kretzschmar resigned or was terminated. Even assuming that
Kretzschmar was terminated and that she can establish a causal connection
between her termination and her “protected activity,” Birmingham East has
articulated a legitimate, non-retaliatory reason for ending its employment
relationship with her: Birmingham East does not allow employees to unilaterally
announce that they are changing their employment status from full-time to
permanent PRN, and the facility had no need for an MDS Coordinator who worked
on only a PRN basis. (Burch Decl. at ¶ 24). Kretzschmar has adduced no evidence
that this legitimate reason for terminating her (or, as Burch contends, accepting her
resignation) was pretextual. In fact, Kretzschmar admitted at her deposition that
the MDS Coordinator position is a full-time position. (Kretzschmar Dep. at 285).
In sum, even assuming that Kretzschmar could somehow make out a prima
facie case of retaliatory discharge, Birmingham East has stated a legitimate, nonretaliatory reason for its action, and Kretzschmar has not met her burden to show
pretext. Kretzschmar’s retaliatory discharge claim is due to be dismissed.
Kretzschmar’s Claim for Other Retaliatory Acts
Lastly, the Court allowed Kretzschmar to pursue her claim under Section
1981 for alleged retaliatory acts other than discharge. Although it is not clear from
Kretzschmar’s amended complaint exactly what other retaliatory acts she is
complaining about, her response to Birmingham East’s motion for summary
judgment appears to identify four alleged acts of retaliation: (1) being “demoted”
in July 2013, (2) being suspended in July 2013, (3) being issued a written
corrective counseling for her medication error in July 2013 (improperly completing
a resident’s MAR and then failing to properly dispose of the narcotic medication),
and (4) being denied vacation in August 2013. (Doc. 47 at 11-2, 18-20).
Birmingham East has moved for summary judgment on all four alleged acts.
With respect to Kretzschmar’s allegation that her “demotion” in July 2013
was an adverse employment action for purposes of her retaliation claim,
Birmingham East argues that Kretzschmar’s alleged “protected activity” could not
have been the “but for” cause of her demotion. The Court agrees. Kretzschmar
testified unequivocally at her deposition that the first time she complained about
discrimination and harassment in the workplace (her alleged protected activity)
was when she sent her email to Burch on July 19, 2013, complaining about
working in a hostile work environment. (Kretzschmar Dep. at 165-66, 170; Doc.
43-4 at 30). It is undisputed, however, that Burch informed Kretzschmar no later
than July 15, 2013, that she had decided not to make Kretzschmar the ADNS (the
alleged “demotion”). Therefore, Kretzschmar’s protected activity could not have
been the cause of her demotion. By Kretzschmar’s own admission, she did not
engage in any protected activity until after she had been demoted. 25
With respect to Kretzschmar’s allegation that her suspension in July 2013
was an act of retaliation, the Court has already discussed the suspension in the
context of Kretzschmar’s race discrimination claim. As discussed above,
Birmingham East has articulated a legitimate reason for suspending Kretzschmar—
The Court notes that the counseling memorandum Burch gave to Kretzschmar on July 18,
2013, references Kretzschmar’s conversation with the Human Resources Director that day,
during which Kretzschmar allegedly commented that she had an attorney and would be suing
Birmingham East for discrimination. (Doc. 43-34 at 26). At her deposition, Kretzschmar did not
recall making any such comments. (Kretzschmar Dep. at 164-65). In any event, even if
Kretzschmar did make the comments, the comments were still made after she had been demoted.
Burch’s determination that the text messages Kretzschmar sent to Amanda Gillott
were inappropriate and unprofessional. Kretzschmar has not shown that Burch’s
reason was a pretext for discrimination or for prohibited retaliatory conduct.
To the extent that Kretzschmar’s retaliation claim is based on Burch’s
decision to give Kretzschmar a written corrective counseling on July 29, 2013,
after she committed a medication error, Birmingham East argues that the corrective
counseling was not an “adverse employment action” for purposes of her retaliation
claim. (Doc. 42 at 27). The Court agrees. In the retaliation context, whether a
challenged action is an “adverse employment action” is determined by whether “a
reasonable employee would have found the challenged action materially adverse,
which in this context means it might well have dissuaded a reasonable worker from
making or supporting a charge of discrimination.” Burlington N. & Santa Fe Ry. v.
White, 548 U.S. 53, 68 (2006). Here, no reasonable employee would have found
the corrective counseling Burch issued to Kretzschmar for her medication error to
be materially adverse, given that it had no impact on Kretzschmar’s salary or job
status. Likewise, the mere issuance of the corrective counseling would not have
deterred a reasonable employee from making or supporting a charge of
discrimination. See Barnett v. Athens Reg’l Med. Ctr., 550 F. App’x 711, 715 (11th
Cir. 2013) (“[N]either the reprimands, the negative evaluation, nor the denial of
Barnett’s vacation request were adverse employment actions. There was no
evidence Barnett suffered harm from any action that would have deterred a
reasonable employee from making or supporting a charge of discrimination. In
particular, nothing in the record showed that these acts were materially adverse in
that they would have affected any future pay raise or his future job status in any
way.” (internal citation omitted)). Because the corrective counseling Burch issued
to Kretzschmar was not an adverse employment action, Kretzschmar cannot
establish a prima facie case of retaliation with respect to that action.
Moreover, even if Kretzschmar were able to establish a prima facie case,
Birmingham East has articulated a legitimate reason for issuing the corrective
counseling—Burch’s determination that Kretzschmar improperly completed the
resident’s MAR and failed to properly dispose of the narcotic medication. (Burch
Decl. at ¶ 20-21). In addition, it is undisputed that Burch has disciplined other
nurses for similar medication errors, including Caucasian nurses. (Id. at ¶ 21).
There is no evidence of pretext.
Lastly, Kretzschmar alleges that Burch retaliated against her when Burch
allegedly denied her request for vacation in August 2013.26 As before,
Birmingham East argues that the denial of Kretzschmar’s vacation request,
assuming the request was in fact denied, was not an adverse employment action.
As previously noted, Birmingham East’s payroll records reflect that Kretzschmar took two
vacation days in August 2013 and was paid for both days. (Burch Decl. at ¶ 23; Doc. 43-5 at 4649).
Again, the Court agrees. See Barnett, 550 F. App’x at 715 (“[T]he denial of a
vacation request would not have deterred a reasonable employee from making, or
supporting, a discrimination charge.”). Furthermore, once again assuming that
Kretzschmar would be able to establish a prima facie case of retaliation,
Kretzschmar admits that her vacation request was denied (if at all) because her
delinquent MDS assessments were not complete (Kretzschmar Dep. at 251), a
legitimate, non-retaliatory reason for denying the request. Indeed, MDS
assessments must be completed and submitted to the Center for Medicare and
Medicaid Services before Birmingham East can receive reimbursement for the
services it provides, and there is a time limit for completion of the assessments.
(Burch Decl. at ¶ 23). Kretzschmar has not shown that Birmingham East’s concern
that she was behind in her MDS assessments was a pretext for retaliation.
For all of the above reasons, Birmingham East is entitled to summary
judgment on Kretzschmar’s claim for retaliation based on acts other than
Based on the foregoing, Birmingham East’s motion for summary judgment
(doc. 41) will be granted in its entirety and its motion to strike (doc. 51) will be
granted in part and denied in part. An appropriate order consistent with this
opinion will be entered.
DATED this 19th day of May, 2017.
JOHN E. OTT
Chief United States Magistrate Judge
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