Hamilton v. Coffee Health Group et al

Filing 58

MEMORANDUM OPINION AND ORDER DISMISSING CASE that the defendant's motion to strike is GRANTED in part and DENIED in part, defendant's motion for summary judgment is GRANTED and all of plaintiff's claims are DISMISSED with prejudice; costs are taxed to plaintiff as more fully set out in order. Signed by Judge C Lynwood Smith, Jr on 6/6/2013. (AHI)

FILED
2013 Jun-06 PM 02:43
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
NORTHWESTERN DIVISION
SHERYL LEGGS HAMILTON,
Plaintiff,
vs.
COFFEE HEALTH GROUP, now
known as REGIONAL CARE
HOSPITAL,
Defendant.

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Civil Action No. CV-10-S-3621-NW

MEMORANDUM OPINION AND ORDERS
Plaintiff, Sheryl Leggs Hamilton, initiated this action as a pro se litigant on
December 29, 2010.1 The defendants included plaintiff’s former employer — an
entity identified in the pleadings as “Coffee Health Group, now known as Regional
Care Hospital” — and four former co-workers: Team Leader Melinda England;
Manager of Patient Accounts David Davis; Central Business Office Director Diane
Myrick; and Human Resources Director Cheryl Lee.2 The complaint accused those
defendants of discriminating against plaintiff on the basis of her race and age in
violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.
(“Title VII”), and the Age Discrimination in Employment Act of 1967, 29 U.S.C. §

1

See doc. no. 1 (Complaint).

2

Id. at 1.

621 et seq. (“ADEA”).3
Prior to commencing this action, plaintiff lodged a charge of discrimination
with the Equal Employment Opportunity Commission (“EEOC”), asserting that she
had been reprimanded, disciplined, and then fired on the basis of her race and age.4
The EEOC investigated plaintiff’s charge, closed her file, and issued a notice of right
to sue.5 Plaintiff then timely filed a complaint based upon the allegations in her
EEOC charge.6

Plaintiff’s complaint included the additional accusation that

defendant had removed her from the position of “hospital cashier,” and replaced her
with a white clerk.7
Defendants moved to dismiss the claims against the four individuals, and the
claim based on plaintiff’s removal from the cashier position.8 At that point, plaintiff
retained an attorney, who filed a response conceding that the challenged claims were
due to be dismissed.9 Accordingly, this court dismissed the claims against the four

3

Id. at 2.

4

Id. at 9. The EEOC charge appears as page 9 of plaintiff’s complaint, rather than as a
separate exhibit.
5

Id. at 8. The right to sue letter appears as page 8 of plaintiff’s complaint.

6

Id. at 4.

7

Id.

8

See doc. no. 6 (Motion to Dismiss).

9

See doc. no. 11 (Notice of Appearance by Michael L. Weathers); doc. no. 14 (Response to
Motion to Dismiss).

2

individuals, and the claim based on plaintiff’s removal from the cashier position.10
The parties then stipulated to the dismissal of plaintiff’s claim for violation of the
ADEA,11 and the court accordingly dismissed that claim as well.12
Thus, only two claims remain pending:

the Title VII retaliation claim

addressed in Part IV of this opinion, infra; and the Title VII racial discrimination
claim discussed in Part V, infra. The following opinion addresses, first, defendant’s
motion to strike portions of the declaration submitted by plaintiff in opposition to
defendant’s motion for summary judgment, and then defendant’s dispositive motion.13
I. MOTION TO STRIKE
Coffee Health Group, now known as Regional Care Hospital (“defendant”),
moves to strike a variety of words, sentences, and paragraphs from plaintiff’s
declaration in opposition to summary judgment.14 The first forty-six paragraphs of
the declaration contain plaintiff’s factual allegations, and the last three paragraphs —
which together span fourteen pages — state her rejections of the four declarations

10

See doc. no. 22 (Memorandum Opinion and Order).

11

See doc. no. 23 (Stipulation of Dismissal).

12

See doc. no. 27 (Order Dismissing Fewer than all Claims).

13

See doc. no. 24 (Motion for Summary Judgment); doc. no. 54 (Motion to Strike).

14

See doc. no. 54 (Motion to Strike); see also doc. no. 48-1 (Declaration of Sheryl Leggs
Hamilton).

3

submitted by defendant in support of its motion for summary judgment.15 Defendant
argues that portions of plaintiff’s declaration contain conclusory allegations, are not
based upon plaintiff’s personal knowledge, or constitute a “sham” because they
contradict, without explanation, plaintiff’s prior deposition testimony.16
In response, plaintiff argues that the court should treat her declaration leniently,
because she is a layperson — an allegation that is made without apparent
embarrassment, despite the fact that plaintiff has been represented by counsel since
June 13, 2011.17 In addition, plaintiff submitted a twenty-two-page supplemental
declaration in an attempt to explain the contradictions between her deposition
testimony and her original declaration.18
A.

Federal Rule of Civil Procedure 56
Federal Rule of Civil Procedure 56(c)(4) states that:

“An affidavit or

declaration used to support or oppose a motion must be made on personal knowledge,
set out facts that would be admissible in evidence, and show that the affiant or
15

See doc. no. 48-1 (Original Declaration of Sheryl Leggs Hamilton); see also doc. no. 26-14
(Declaration of David Davis); doc. no. 26-15 (Declaration of Diane Myrick); doc. no. 26-16
(Declaration of Cheryl Lee); doc. no. 26-17 (Declaration of Melinda England). The multiple
subparagraphs of the final paragraphs of plaintiff’s declaration are not numbered sequentially. See
doc. no. 48-1 (Original Declaration of Sheryl Leggs Hamilton). Accordingly, when this court cites
to information contained in those subparagraphs, it will cite to page numbers, not paragraph
numbers.
16

Doc. no. 54 (Motion to Strike), at 1-2.

17

See doc. no. 11 (Notice of Appearance by Michael L. Weathers).

18

See doc. no. 55-1 (Supplemental Declaration of Sheryl Leggs Hamilton).

4

declarant is competent to testify on the matters stated.” Fed. R. Civ. P. 56(c)(4).
Thus, “conclusory allegations without specific supporting facts have no probative
value.” Leigh v. Warner Bros., Inc., 212 F.3d 1210, 1217 (11th Cir. 2000).
Eleventh Circuit precedent permits district courts to “disregard an affidavit as
a sham when a party to the suit files an affidavit that contradicts, without explanation,
prior deposition testimony on a material fact.” Kernel Records Oy v. Mosley, 694
F.3d 1294, 1300 n.6 (11th Cir. 2012) (citing Van T. Junkins & Associates, Inc. v. U.S.
Industries, Inc., 736 F.2d 656, 657 (11th Cir. 1984)). In order for that rule to apply,
however, “‘[t]he earlier deposition testimony [must] consist of clear answers to
unambiguous questions which negate the existence of any genuine issue of material
fact.” Kernel, 694 F.3d at 1300 n.6 (alterations supplied) (citing Lane v. Celotex
Corp., 782 F.2d 1526, 1532 (11th Cir. 1986)). The so-called “sham affidavit rule”
applies with equal force to declarations. See, e.g., Baloco v. Drummond Co., No.
7:09-CV-00557-RDP, 2012 WL 4009432, *36 (N.D. Ala. Sept. 12, 2012) (citing Van
T. Junkins, 736 F.2d at 657).
In light of Federal Rule of Civil Procedure 56(c)(4), and this Circuit’s
prohibition on “sham” affidavits, the court will strike the following parts of plaintiff’s
testimony.
1.

Allegations That Melinda England Made Racist Statements to
5

Plaintiff
Plaintiff asserts in her declaration filed in opposition to summary judgment that
Team Leader Melinda England said that “African-Americans were lazy and would not
pull their load,” “African-Americans were not responsible people,” and that plaintiff,
“as an African-American, was lazy and would not work.”19 During her earlier
deposition, however, plaintiff testified as follows:
Q.

. . . Did Melinda England ever make any race-based comments to
you?

A.

She as soon to have, she gave me that look.

Q.

So you’re basing her racism on a look?

A.

She had that look.

Q.

Okay. And you believe it was a racist look?

A.

That’s correct.

Q.

Okay. But she never made any comments to you?

A.

She didn’t make a comment to me.20

“Recognizing that parties may try to escape summary judgment by using
affidavits to create issues of fact where none existed, [the Eleventh Circuit has]
19

Doc. no. 48-1 (Original Declaration of Sheryl Leggs Hamilton) ¶ 3; see also doc. no. 26-17
(Declaration of Melinda England) ¶ 4.
20

Doc. no. 26-2 (Deposition of Sheryl Leggs Hamilton, Part II), at 413-14 (emphasis

supplied).

6

allowed an affidavit to be disregarded as a ‘sham’ if it flatly contradicts earlier
deposition testimony in a manner that cannot be explained.” Akins v. Fulton County,
278 F. App’x 964, 968 (11th Cir. 2008) (alteration supplied).
Given the contradiction between the assertions in plaintiff’s declaration that
England made specific racist statements to her, and plaintiff’s prior deposition
testimony that clearly, and without qualification, stated that England did not make any
racist comments to her, this court will strike plaintiff’s contradictory declaration
statements.
2.

Allegations That Melinda England Made Racist Statements About
Plaintiff to David Davis

Plaintiff also alleged in her declaration that Team Leader Melinda England told
Manager of Patient Accounts David Davis that “African-Americans were lazy and
would not pull their load,” “African-Americans were not responsible people,” and
that plaintiff, “as an African-American, was lazy and would not work.”21
As previously noted, “[a]n affidavit or declaration used to support or oppose
a motion must be made on personal knowledge, set out facts that would be admissible
in evidence, and show that the affiant or declarant is competent to testify on the
matters stated.” Fed. R. Civ. P. 56(c)(4) (alteration supplied).
21

Doc. no. 48-1 (Original Declaration of Sheryl Leggs Hamilton) ¶ 3; see also doc. no. 26-14
(Declaration of David Davis) ¶ 1.

7

Plaintiff has produced no evidence that she has personal knowledge of a
conversation between Melinda England and David Davis in which such statements
allegedly were made. Accordingly, this court will strike that portion of plaintiff’s
declaration. See, e.g., Fed. R. Evid. 802.
B.

Federal Rule of Evidence 701
Plaintiff also argues that some of the testimony contested by defendant is

admissible as “lay opinion evidence” pursuant to Federal Rule of Evidence 701(a),
because she has personal knowledge of the matters to which she attests, and
defendant’s “full and fair opportunity to cross-examine” plaintiff at trial will cure any
defects in the assertions contained in her declaration.22
Federal Rule of Evidence 701 allows a lay witness to testify in the form of an
opinion, provided such testimony “is limited to” those opinions or inferences that are:
“(a) rationally based on the witness’s perception; (b) helpful to clearly understanding
the witness’s testimony or to determining a fact in issue; and (c) not based on
scientific, technical, or other specialized knowledge within the scope of Rule 702.”
Fed. R. Evid. 701.23 Plaintiff’s attorney focuses upon subpart (a) of that Rule, but the
22

Doc. no. 55 (Response to Motion to Strike), at 2-8.

23

Rule 702 pertains to the testimony of a witness who is qualified as a so-called “expert”
because of his or her knowledge, skill, experience, training, or education, and who is thereby
permitted to express an opinion, provided: “(a) the expert’s scientific, technical, or other specialized
knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; (b)
the testimony is based on sufficient facts or data; (c) the testimony is the product of reliable

8

most important part in the context of the present issue is the “helpfulness”
requirement embodied in Rule 701(b).

That subpart is designed to “provide

assurances against the admission of opinions which would merely tell the jury what
result to reach.” United States v. Rea, 958 F.2d 1206, 1215 (2d Cir. 1992) (quoting
Fed. R. Evid. 701 Advisory Committee Note on 1972 Proposed Rule) (emphasis
supplied); see also Lightfoot v. Union Carbide Corp., 110 F.3d 898, 912 (2d Cir.
1997) (same). Thus, if “‘attempts are made to introduce meaningless assertions [that]
amount to little more than choosing up sides, exclusion for lack of helpfulness is
called for by [Rule 701(b)].’” Rea, 958 F.2d at 1215 (quoting Advisory Committee
Note) (alterations supplied).
In addition, the Eleventh Circuit has cautioned that, in the context of
employment discrimination suits, “a discharged employee’s mere suspicion of . . .
discrimination, unsupported by personal knowledge of discrimination, will not
constitute [proof of] pretext.” Sturniolo v. Sheaffer, Eaton, Inc., 15 F.3d 1023, 1026
(11th Cir. 1994) (alteration supplied) (citing Slaughter v. Allstate Insurance Co., 803
F.2d 857, 860 (5th Cir. 1986)). Therefore, “testimony based on conjecture alone is
insufficient to raise an issue as to the existence of [an] alleged [discriminatory]
policy.” Sturniolo, 15 F.3d at 1026 (alterations supplied) (quoting Slaughter, 803
principles and methods; and (d) the expert has reliably applied the principles and methods to the
facts of the case.” Fed. R. Evid. 702.

9

F.2d at 860). In summary, such testimony does not constitute admissible “lay opinion
evidence” under Federal Rule of Evidence 701. The Second Circuit explained this
rule in the following manner in Hester v. BIC Corp., 225 F.3d 178 (2d Cir. 2000):
[I]n an employment discrimination action, Rule 701(b) bars lay opinion
testimony that amounts to a naked speculation concerning the
motivation for a defendant’s adverse employment decision. Witnesses
are free to testify fully as to their own observations of the defendant’s
interactions with the plaintiff or with other employees, but “the
witness’s opinion as to the defendant’s [ultimate motivations] will often
not be helpful within the meaning of Rule 701 because the jury will be
in as good a position as the witness to draw the inference as to whether
or not the defendant” was motivated by an impermissible animus. Rea,
958 F.2d at 1216. . . . A jury can draw its own conclusions “from
observed events or communications that can be adequately described”
to it. . . . But [a witness’s] speculative lay opinion that [a supervisor’s
conduct] is attributable to race[, or some other protected characteristic
of the particular plaintiff,] rather than anything else, is not helpful . . .
because it “merely tells the jury what result to reach.” Id. at 1215.
Hester, 225 F.3d at 185 (alterations supplied).
The foregoing principles must be applied to plaintiff’s claims (“lay opinions”)
that the following five coworkers were racially biased: Team Leader Melinda
England; Manager of Patient Accounts David Davis; Central Business Office
Director Diane Myrick; Human Resources Director Cheryl Lee; and Human
Resources employee Kim Cole.24

24

See doc. no. 26-15 (Declaration of Diane Myrick) ¶ 1; doc. no. 26-16 (Declaration of
Cheryl Lee) ¶ 2; doc. no. 48-1 (Original Declaration of Sheryl Leggs Hamilton) ¶ 31 (noting that
Kim Cole worked in the human resources department).

10

For example, plaintiff alleged: that England, Davis, and Myrick “singled [her]
out as an African-American and applied a much harsher and incorrect system of
production [i.e., means of measuring productivity] to [plaintiff]”;25 that Myrick “let
[plaintiff] know how she did not like African-Americans by the tone of her voice and
her very condescending gestures and attitude towards [plaintiff]”;26 that Myrick “tried
everything she could to keep [plaintiff] from transferring to work in Florence,
Alabama because [plaintiff is] African-American”;27 that England, Davis, and Myrick
used certain documents “as a pretext for suspending [plaintiff] and firing [plaintiff]
to cover up [their] . . . racial animus against [plaintiff]”;28 that England, Davis, and
Myrick “singled [plaintiff] out, as an African-American, and wrongfully blamed
[her]” for hanging up the telephone on a patient;29 and that England, Davis, Myrick,
Lee, and Cole “made it clear to [plaintiff] how they disliked African-Americans,
including [plaintiff]” when they refused to complete all of the steps of defendant’s
appellate procedure for plaintiff’s discrimination complaint.30
As the Eleventh Circuit has observed, “testimony based on conjecture alone is
25

Doc. no. 48-1 (Original Declaration of Sheryl Leggs Hamilton) ¶ 6 (alterations and
emphasis supplied).
26

Id. ¶ 7 (alterations and emphasis supplied).

27

Id. ¶ 19 (alteration and emphasis supplied).

28

Id. ¶ 29 (alterations and emphasis supplied).

29

Id. ¶ 40 (alterations and emphasis supplied).

30

Id. ¶ 42 (alterations and emphasis supplied).

11

insufficient to raise an issue as to the existence of [an] alleged [discriminatory]
policy.” Sturniolo, 15 F.3d at 1026 (alterations supplied) (quoting Slaughter, 803
F.2d at 860). “Witnesses are free to testify fully as to their own observations of the
defendant’s interactions with the plaintiff or with other employees, but . . .
speculative lay opinion that [a supervisor’s conduct] is attributable to race rather than
anything else, is not helpful[.]” Hester, 225 F.3d at 185 (alterations supplied).
Accordingly, this court will consider plaintiff’s testimony with regard to the
actions of her coworkers, and the tone of voice each used when speaking to her, but
will strike her conclusory opinions that the motivation for the alleged actions was
discriminatory animus towards African-Americans.
Thus, the following statements can be considered: that England, Davis, and
Myrick “singled [plaintiff] out . . . and applied a much harsher and incorrect system
of production to [plaintiff]”;31 that Myrick used a disrespectful “tone of her voice and
. . . very condescending gestures and attitude towards [plaintiff]”;32 that Myrick “tried
everything she could to keep [plaintiff] from transferring to work in Florence,
Alabama”;33 that England, Davis, and Myrick used certain documents “as a pretext

31

Doc. no. 48-1 (Original Declaration of Sheryl Leggs Hamilton) ¶ 6 (alteration and emphasis
supplied).
32

Id. ¶ 7 (alterations and emphasis supplied).

33

Id. ¶ 19 (alterations and emphasis supplied).

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for suspending [plaintiff] and firing [plaintiff]”;34 that England, Davis, and Myrick
“singled [plaintiff] out . . . and wrongfully blamed [her]” for hanging up the telephone
on a patient;35 and that England, Davis, Myrick, Lee, and Cole refused to complete
all of the steps of defendant’s appellate procedure for plaintiff’s discrimination
complaint.36
On the other hand, the following testimony cannot be taken into account when
considering defendant’s motion for summary judgment: that England, Davis, and
Myrick “singled [plaintiff] out as an African-American”;37 that Myrick “let [plaintiff]
know how she did not like African-Americans”;38 that Myrick thwarted plaintiff’s
transfer “because [plaintiff is] African-American”;39 that England, Davis, and Myrick
disciplined and terminated plaintiff “to cover up [their] . . . racial animus against
[plaintiff]”;40 that England, Davis, and Myrick “singled [plaintiff] out, as an AfricanAmerican”;41 and that England, Davis, Myrick, Lee, and Cole “made it clear to

34

Id. ¶ 29 (alterations and emphasis supplied).

35

Id. ¶ 40 (alterations and emphasis supplied).

36

Id. ¶ 42 (alterations and emphasis supplied).

37

Doc. no. 48-1 (Original Declaration of Sheryl Leggs Hamilton) ¶ 6 (alterations and
emphasis supplied).
38

Id. ¶ 7 (alterations and emphasis supplied).

39

Id. ¶ 19 (alteration and emphasis supplied).

40

Id. ¶ 29 (alterations and emphasis supplied).

41

Id. ¶ 40 (alterations and emphasis supplied).

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[plaintiff] how they disliked African-Americans, including [plaintiff].”42
C.

Other Declaration Statements Contested by Defendant
In addition to raising the worthy issues discussed in Parts I(A) and I(B) above,

defendant’s motion to strike repeatedly quibbles with plaintiff’s choice of words on
matters that have no apparent impact upon summary judgment issues.43 See generally
Nicolatos v. Sprint/United Management Co., No. 1:05-CV-1722-RLV, 2006 WL
3490817, *9 (N.D. Ga. Nov. 28, 2006) (citing Lane v. Celotex Corp., 782 F.2d 1526,
1530 (11th Cir. 1986)) (“The inconsistencies between the deposition and the affidavit
must be substantial because not every discrepancy will justify a court’s refusal to
consider the contradictory evidence.”) (emphasis supplied); Travelers Indemnity Co.
v. General Star Indemnity Co., 157 F. Supp. 2d 1273, 1279 (S.D. Ala. 2001) (denying
a motion to strike because “the ‘inconsistency’ has no impact on the outcome of this
action”).
In the interest of conservation of resources, this court will not analyze

42

Id. ¶ 42 (alterations and emphasis supplied).

43

See doc. no. 54 (Motion to Strike). For example, defendant challenges plaintiff’s
contention that Manager of Patient Accounts David Davis “forcefully” stopped plaintiff from
manually tracking her performance numbers on the grounds that her use of the word “forcefully” is
conclusory. Id. at 7. Defendant also challenges plaintiff’s description of her 2003-2006 performance
evaluations as “extremely high,” preferring to define them as merely “good.” Id. at 6; doc. no. 25
(Brief in Support of Motion for Summary Judgment), at 2. Because the numerical scores that
plaintiff received on her performance evaluations were submitted into evidence, the descriptions of
those evaluations will not impact the decision on summary judgment.

14

defendant’s numerous other requests in detail. Upon consideration, the remainder of
the motion to strike will be denied. See generally Grant v. Murphy & Miller, Inc.,
149 F. Supp. 2d 957, 974-75 (N.D. Ill. 2001) (“[T]his Court will not perform an
exhaustive line-by-line analysis of th[e] motion [to strike] because it has taken care
to ensure that its opinion is based only on admissible evidence. Moreover, any such
effort could convert this already overly lengthy effort into near-novella length.”)
(alterations supplied); United States v. Nutri-Cology, Inc., No. C-91-1332-DLJ, 1993
WL 13585505, *16 (N.D. Cal. Sept. 23, 1993) (“The Court will only consider the
relevant, admissible evidence presented in the parties’ summary judgment motions
and will not, at this time, either strike the declarations in whole or review the
evidence, line by line, for admissibility.”); Dell’Aquila v. River Bank America, No.
92-3271 (HLS), 1993 WL 1618646, *4-5 (D. N.J. Apr. 16, 1993) (“The court declines
to make a paragraph by paragraph decision as to which sentences or words will be
struck from the record.”).
II. SUMMARY JUDGMENT STANDARDS
Federal Rule of Civil Procedure 56 indicates that summary judgment “should
be rendered if the pleadings, the discovery and disclosure materials on file, and any
affidavits show that there is no genuine issue as to any material fact and that the
movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c). “[T]he
15

plain language of Rule 56(c) mandates the entry of summary judgment, after adequate
time for discovery and upon motion, against a party who fails to make a showing
sufficient to establish the existence of an element essential to that party’s case, and
on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett,
477 U.S. 317, 322 (1986) (alteration supplied).
In making this determination, the court must review all evidence and
make all reasonable inferences in favor of the party opposing summary
judgment.
[However,] [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 [factfinder] to return a
verdict in its favor.
Chapman v. AI Transport, 229 F.3d 1012, 1023 (11th Cir. 2000) (en banc) (internal
citations omitted) (alterations and emphasis suppled).
III. SUMMARY OF FACTS
Plaintiff is an African-American who was hired to work as a
registration/admissions clerk (sometimes referred to as a “cashier”) at Russellville
Hospital in Russellville, Alabama in 1999.44

The following year, defendant

purchased the hospital, and created a central business office in the nearby city of
44

Doc. no. 26-1 (Deposition of Sheryl Leggs Hamilton, Part I), at 66-67.

16

Florence, Alabama.45
A.

Plaintiff’s Assignment to the Position of Customer Service Representative
After defendant purchased the hospital, plaintiff continued to reside in

Russellville and, understandably, desired to remain at Russellville Hospital.46 Even
so, defendant selected a white employee to fill the Russellville position, and assigned
plaintiff to work in its Florence business office as a customer service representative.47
Like the duties of a “cashier,” the duties of a customer service representative
included answering questions from walk-in patients.48 However, a customer service
representative was also responsible for assisting with billing, insurance, and
collections.49 Indeed, one of the “essential job functions” of the position was
attempting to collect on patients’ past-due debt.50
According to plaintiff, Central Business Office Director Diane Myrick made
the challenged personnel decision because she “needed a white face . . . at
Russellville Hospital.”51 Myrick testified, however, that she collaborated on the
45

Id. at 67-68; doc. no. 26-10 (Deposition of Diane Myrick), at 18-22; doc. no. 26-14
(Declaration of David Davis) ¶ 3.
46

Doc. no. 26-2 (Deposition of Sheryl Leggs Hamilton, Part II), at 389-94; see also doc. no.
1 (Complaint) ¶ 1 (stating that plaintiff was a resident of Russellville).
47

Id.

48

See doc. no. 26-5 (Performance Evaluation), at 13.

49

See id. at 3 (listing the “essential job functions” of a customer service representative).

50

See id.

51

Id.

17

selection decision with the Human Resources Director of defendant’s three hospitals,
and that the white employee selected to fill the position formerly occupied by plaintiff
had nine more years of experience than plaintiff.52
B.

Plaintiff’s Allegations That David Davis Treated Her Differently on the
Basis of Her Race
Plaintiff began reporting to Manager of Patient Accounts David Davis in 2001.

Davis, in turn, reported to Central Business Office Director Diane Myrick.53 Plaintiff
asserts in her declaration that Davis “looked at [her] and talked to [her] in a very
harsh, derogatory and demeaning way and tone of voice.”54 Plaintiff also alleges that
“Davis always took pride in saying to [plaintiff] and others, ‘[plaintiff] is dragging
at the bottom, as an African-American.’ (Doc. 26-2 [i.e., Excerpts from the
Deposition of Plaintiff], at 239-240).”55 Notably, however, the deposition pages cited
by plaintiff as authority for the assertion made in the preceding sentence from her
attorney’s brief in opposition to summary judgment do not support the allegation.
Plaintiff actually testified as follows:

52

Doc. no. 26-10 (Deposition of Diane Myrick), at 18-22.

53

Doc. no. 26-1 (Deposition of Sheryl Leggs Hamilton, Part I), at 68-69; doc. no. 26-14
(Declaration of David Davis) ¶¶ 1-2; doc. no. 26-15 (Declaration of Diane Myrick) ¶¶ 1-2.
54

Doc. no. 48-1 (Original Declaration of Sheryl Leggs Hamilton) ¶ 7 (alterations supplied);
see also id. at ¶ 25.
55

Doc. no. 47 (Brief in Response to Motion for Summary Judgment), at 35-36 (citing doc.
no. 26-1 (Deposition of Sheryl Leggs Hamilton, Part I), at 239-40).

18

A.

. . . . [Davis] always took pride in saying, “[plaintiff] is dragging
at the bottom, as an African American.”

Q.

Did he ever make a comment where he said, “[Plaintiff], as an
African American”? Did . . . Davis ever say that?

A.

He might as well.

Q.

That’s not my question, ma’am.

A.

He might as well. When he looked at me —

Q.

Ma’am, please answer my question. Did he ever say —

A.

When he yelled at me, he might as well.56

In sum, Davis did not utter the words “as an African American.” Plaintiff simply
drew a conclusory opinion based upon his tone of voice and the manner in which he
“looked” at her. Such qualities are ambiguous, however. It is entirely possible, for
example, that Davis talked to and looked at plaintiff in a disrespectful manner for
reasons that were wholly unrelated to her race: e.g., the manner in which she
performed (or failed to perform) the duties of her job.
C.

Melinda England’s Display of a Confederate Flag Tag on Her Automobile
At some unspecified date in 2007, Team Leader Melinda England gave her

sixteen-year-old son permission to decorate the front bumper of her automobile with

56

Doc. no. 26-1 (Deposition of Sheryl Leggs Hamilton, Part I), at 239-40 (alterations and
emphasis supplied).

19

a tag depicting the confederate flag.57 Despite plaintiff’s complaints to Central
Business Office Director Diane Myrick and Manager of Patient Accounts David
Davis, defendant took no action against England.58
D.

Plaintiff’s 2007 Annual Performance Evaluation
As part of her duties as a customer service representative, plaintiff was required

to call patients in an effort to collect debt.59 At first, plaintiff consistently received
annual performance evaluation scores of 3.3 (or greater) out of 4: e.g., a rating of
3.32 on December 12, 2003;60 a rating of 3.32 on November 29, 2004;61 a rating of
3.37 on November 7, 2005;62 and a rating of 3.40 on April 10, 2006.63
According to plaintiff’s August 1, 2007 annual performance evaluation,
however, her debt collections were the lowest of defendant’s four “main” customer
service representatives: a fact that caused her performance rating to drop to 3.05 —
57

Doc. no. 26-1 (Deposition of Sheryl Leggs Hamilton, Part I), at 413-14; doc. no. 26-12
(Deposition of Melinda England), at 34-40; doc. no. 26-17 (Declaration of Melinda England) ¶ 3.
58

Doc. no. 48-1 (Original Declaration of Sheryl Leggs Hamilton) ¶ 9.

59

See, e.g., doc. no. 26-1 (Deposition of Sheryl Leggs Hamilton, Part I), at 117-18; doc. no.
26-4 (Performance Evaluation), at 64.
60

Doc. no. 26-7 (Deposition of David Davis, Part I), at 134-35, 143-44; doc. no. 39-1
(Performance Evaluation), at 1-16.
61

Doc. no. 26-7 (Deposition of David Davis, Part I), at 135, 144; doc. no. 39-1 (Performance
Evaluation), at 17-36.
62

Doc. no. 26-7 (Deposition of David Davis, Part I), at 136, 144; doc. no. 39-1 (Performance
Evaluation), at 37-50.
63

Doc. no. 26-7 (Deposition of David Davis, Part I), at 136-37, 144; doc. 39-1 (Performance
Evaluation), at 51-63.

20

the numerical equivalent of “Meets Expectations.”64 In an August 1, 2007 e-mail to
Manager of Patient Accounts David Davis, plaintiff offered the following theories in
an effort to explain the deterioration in her performance:
I received my Performance Evaluation today and there must be
some technical problem that we are not aware of. I am making contacts
with my patients and requesting money. However, when it is time to
pay the customer does not always follow thru.
I am being compared to my other co-workers, but many of them
are putting in multiple reminders. The multiple reminders allow it to
look like you have made customer contacts in abundance. I am talking
to walking in customers, e-mail customer[s], those customers who call
in and those customers that I call to offer them to pay.
I conclude that there maybe a problem in how I am entering my
notes on each patient’s account. This is being looked at to resolve the
issue.65
As a result of the decrease in plaintiff’s annual performance evaluation score,
she was placed on a ninety-day performance improvement plan.66 At the conclusion
of the plan, Manager of Patient Accounts David Davis informally acknowledged that
plaintiff had increased her collections, but did not formally meet with her to discuss

64

Doc. no. 26-1 (Deposition of Sheryl Leggs Hamilton, Part I), at 114-18; doc. no. 26-4
(Performance Evaluation), at 64-77; doc. no. 26-7 (Deposition of David Davis, Part I), at 137-38,
144.
65

Doc. no. 39-1 (Hamilton E-Mail), at 75 (alteration supplied).

66

Doc. no. 26-1 (Deposition of Sheryl Leggs Hamilton, Part I), at 117-18; doc. no. 26-4
(Performance Evaluation), at 64.

21

her progress.67 Although Davis alleged that there was no need to hold a formal
meeting because the productivity reports compiled during the ninety-day performance
improvement period reflected plaintiff’s improvement,68 plaintiff argued that Davis
“ignored” her requests for a meeting and, thus, prevented her from receiving “credit”
for her increased collections.69
In response to defendant’s motion for summary judgment, plaintiff alleged in
her declaration that, “[o]n Dec. 19, 2007, [plaintiff] took a letter to [Kim] Cole,
Director of [Human Resources] at [Eliza Coffee Memorial Hospital] East, reported
Davis’s refusal to re-evaluate her, and complained that Davis was racially
discriminating against her.”70 An actual review of plaintiff’s letter to Cole reveals,
however, that it stated only that plaintiff “requested twice for a reevaluation,” but that
her improvement “was not recognized enough for a conference.”71 The letter
contained no allegations of racial discrimination against Davis or any other

67

Doc. no. 26-1 (Deposition of Sheryl Leggs Hamilton, Part I), at 120; doc. no. 26-4 (E-Mail
Chain), at 104; doc. no. 26-8 (Deposition of David Davis, Part II), at 373-74, 384-85; doc. no. 26-14
(Declaration of David Davis) ¶ 4.
68

Doc. no. 26-8 (Deposition of David Davis, Part II), at 384-85; doc. no. 26-14 (Declaration
of David Davis) ¶ 4.
69

Doc. no. 47 (Brief in Response to Motion for Summary Judgment), at 8 (alteration

supplied).
70

Id. (citing doc. no. 48-1 (Original Declaration of Sheryl Leggs Hamilton) ¶ 31, doc. no.
36-2 (Hamilton E-Mail), at 2) (emphasis supplied).
71

Doc. no. 36-2 (Hamilton E-Mail), at 2

22

employees.72
E.

Plaintiff’s Reprimand for Insubordination
In an e-mail dated November 7, 2007, Central Business Officer Director Diane

Myrick invited central business office employees to apply for permission to work
longer hours on the Monday, Tuesday, and Wednesday preceding the 2007
Thanksgiving holiday (i.e., November 19-21), for the purpose of allowing the
employees to spend more time with their families over the holiday weekend.73
Plaintiff responded to Myrick’s e-mail, adding a copy to Manager of Patient Accounts
David Davis, with a request to work twelve-hour days on Monday through
Wednesday, November 19-21.74
Myrick and Davis separately responded to plaintiff’s e-mail. Davis initially
approved the twelve-hour schedule at 12:14 p.m.75 One minute later, however,
Myrick wrote: “Usually we allow 10 hour workdays but not 12. I am not sure that
is productive. What do you plan to work on during that time? You cannot call
patients past 8:00 p.m. Do you really think you will be productive all those hours?”76
72

See id.

73

Doc. no. 26-1 (Deposition of Sheryl Leggs Hamilton, Part I), at 132-33; doc. no. 26-4 (EMail Chain), at 84.
74

Doc. no. 26-1 (Deposition of Sheryl Leggs Hamilton, Part I), at 132-33; doc. no. 26-4 (EMail Chain), at 85.
75

Doc. no. 26-4 (E-Mail Chain), at 84.

76

Id. at 82.

23

Within two minutes, Davis backed out his initial approval of plaintiff’s request and
endorsed Myrick’s opinion, saying: “I did not at first notice that you were asking for
12-hour days. That is not approved. You can work three 10[-hour days] and then use
PTO [i.e., paid time off] for the rest.”77
In an effort to address Myrick’s concerns, plaintiff e-mailed her five minutes
later, at 12:20 p.m., explaining that she had “a Cash Retriver [sic] follow-up file to
work on,” plus “accounts ready to be collected on that require some follow-up as
well, but will not necessary [sic] require a call.”78 Five minutes after that, plaintiff
again e-mailed Myrick to complain that “Dave approved at first. However, after your
reply, he refused.”79 Plaintiff also requested that Myrick “send me an o.k. or a denial
o.k. attached to my last e-mail explaining how I will be productive on my work.”80
Myrick responded that she “would prefer” for plaintiff to only work ten-hour days.81
Davis and Myrick testified that they met with plaintiff on November 9, 2007,
for the purpose of explaining their decision.82 At her deposition, plaintiff testified

77

Id. at 84 (alterations supplied).

78

Id. at 82.

79

Id. at 84.

80

Id.

81

Doc. no. 39-1 (E-Mail Chain), at 82.

82

Doc. no. 26-8 (Deposition of David Davis, Part II), at 221-22; doc. no. 26-14 (Declaration
of David Davis) ¶ 5; doc. no. 26-15 (Declaration of Diane Myrick) ¶ 3; doc. no. 39-1 (E-Mail Chain),
at 82.

24

that she did not “remember” the meeting, but she refused to testify that, if Davis and
Myrick stated that such a meeting had occurred on November 9th, then they were not
telling the truth.83 In her declaration, however, plaintiff explicitly denied that such
a meeting took place.84
In any event, on November 20, 2007, plaintiff worked 11.5 hours.85 One week
later, she was reprimanded for insubordination.86 Defendant did not permit any other
central business office employees to work twelve-hour days during the week of the
2007 Thanksgiving holiday.87 Davis and Myrick were not aware of any other
employees who ignored a management instruction with regard to their work
schedules.88

On the other hand, plaintiff alleged that Customer Service

Representative Carlette Robinson violated Davis’s instructions by reporting to work

83

Doc. no. 26-1 (Deposition of Sheryl Leggs Hamilton, Part I), at 140-41.

84

Doc. no. 48-1 (Original Declaration of Sheryl Leggs Hamilton), at 18. As noted in footnote
15, supra, the multiple subparagraphs of the final paragraphs of plaintiff’s declaration are not
numbered sequentially. See id. Accordingly, when this court cites to information contained in those
subparagraphs, it will cite to page numbers, not paragraph numbers.
85

Doc. no. 26-1 (Deposition of Sheryl Leggs Hamilton, Part I), at 141-46; doc. no. 26-4
(Employee Reprimand), at 78.
86

Doc. no. 26-1 (Deposition of Sheryl Leggs Hamilton, Part I), at 124-25; doc. no. 26-4
(Employee Reprimand), at 78.
87

Doc. no. 26-1 (Deposition of Sheryl Leggs Hamilton, Part I), at 135-36; doc. no. 26-8
(Deposition of David Davis, Part II), at 248-49; doc. no. 26-14 (Declaration of David Davis) ¶ 5;
doc. no. 26-15 (Declaration of Diane Myrick) ¶ 4.
88

Doc. no. 26-14 (Declaration of David Davis) ¶ 5; doc. no. 26-15 (Declaration of Diane
Myrick) ¶ 4.

25

in January of 2010 on a date that the office was closed, but was not reprimanded.89
That fact does not advance plaintiff’s interests in this case, however, because
Robinson also is African-American.
F.

Plaintiff’s Reprimand for Improper Collection Practices
Plaintiff was reprimanded for improper collection practices on December 19,

2007.90 In a detailed written description of the reprimand, defendant reaffirmed that
all of the employees in the customer service department had “been instructed not to
claim collections for their productivity report until the dollars collected have been
posted.”91
When defendant performed an audit of plaintiff’s accounts as part of a regular
productivity review, it discovered that plaintiff had claimed six accounts as
“collected” before payments were posted.92 For two of those accounts, it was
“possible that the credit card posting was late.”93 Even so, the other two accounts
were never paid.94 Plaintiff also claimed that a seventh account had been “collected”

89

Doc. no. 26-1 (Deposition of Sheryl Leggs Hamilton, Part I), at 444-45; doc. no. 26-5
(Myrick E-Mail), at 56.
90

Doc. no. 26-1 (Deposition of Sheryl Leggs Hamilton, Part I), at 149-58; doc. no. 26-4
(Employee Reprimand), at 87-88.
91

Doc. no. 26-4 (Employee Reprimand), at 87-88.

92

Id.

93

Id.

94

Id.

26

for an amount that was twice the actual amount owed.95
During their respective depositions, plaintiff and Manager of Patient Accounts
David Davis each testified that they were not aware of any other employees who had
claimed accounts as “collected” before the payments were posted.96

In her

declaration, however, plaintiff alleged just the opposite, and asserted that all customer
service representatives did so, because credit card payments sometimes posted late.97
She also alleged that white customer service representatives who did so were not
reprimanded.98
G.

Plaintiff’s 2008 Annual Performance Evaluation
Manager of Patient Accounts David Davis gave plaintiff a performance rating

of 3.15 out of 4 on December 18, 2008 — the numerical equivalent of her 2007
rating, “Meets Expectations.”99
H.

Plaintiff’s Application for the Position of Non-Medicare Revenue Integrity
Specialist
After Jennifer Pate resigned the position of “non-Medicare revenue integrity

95

Id.

96

Doc. no. 26-1 (Deposition of Sheryl Leggs Hamilton, Part I), at 158-59; doc. no. 26-8
(Deposition of David Davis, Part II), at 255-56.
97

Doc. no. 48-1 (Declaration of Sheryl Leggs Hamilton) ¶ 22.

98

Id.

99

Doc. no. 26-1 (Deposition of Sheryl Leggs Hamilton, Part I), at 164-67, 181; doc. no. 26-4
(Performance Evaluation), at 91.

27

specialist,” defendant posted an opening for the position.100 Defendant’s Employee
Handbook required job postings to “remain on the board for at least five days,
including weekend days”:101 in other words, five calendar days. Because the
“non-Medicare revenue integrity specialist” position was posted on July 30, 2009, the
position had to remain open until August 4, 2009.102
Defendant received applications from two African-American employees in
response to its job posting (plaintiff and Tammy Simmons) and three white
employees (Belinda Gotcher, Melissa Baskins, and Belynn “Ann” Heathcoat).103
Only one of those five employees submitted her application by August 4th: i.e.,
Tammy Simmons, who applied on August 3rd.104 Belinda Gotcher and Melissa
Baskins submitted their applications on August 5th: one day late.105 Plaintiff and
Ann Heathcoat submitted their applications on August 6th: two days late.106
(Plaintiff was not present to confirm when the human resources department actually

100

Doc. no. 26-10 (Deposition of Diane Myrick), at 158; doc. no. 26-16 (Notice of Position
Open), at 8.
101

Doc. no. 26-3 (Employee Handbook), at 80.

102

Doc. no. 26-10 (Deposition of Diane Myrick), at 158; doc. no. 26-16 (Notice of Position
Open), at 8.
103

Doc. no. 26-10 (Deposition of Diane Myrick), at 160; doc. no. 26-16 (Notice of Position
Open), at 9; doc. no. 48-1 (Original Declaration of Sheryl Leggs Hamilton) ¶ 23.
104

Doc. no. 26-16 (Notes Regarding Dates of Applications), at 9.

105

Id.

106

Id.

28

received her application.107)
The parties have not provided the specific date on which this selection decision
was made, but a “decision to fill a position [generally was] subject to being made at
the end of the 5th day of posting.”108 In any event, Central Business Office Director
Diane Myrick and Manager of Patient Accounts David Davis awarded the position
to Melissa Baskins, the white female who submitted her application one day late.109
Human Resources employee Jeannie Kilpatrick sent identical e-mails to plaintiff and
Heathcoat on August 11, 2009, stating that their applications were received after the
position had been filled.110 Davis and Myrick testified that they were not aware of
plaintiff and Heathcoat’s applications at the time when they awarded the position to
Baskins.111
I.

Plaintiff’s Reprimand for Violating Patient Confidentiality
Plaintiff was trained on patient confidentiality and given an employee

107

Doc. no. 26-2 (Deposition of Sheryl Leggs Hamilton, Part II), at 204.

108

Doc. no. 26-4 (E-Mail Chain), at 104 (alteration supplied).

109

Id. at 212-17; doc. no. 26-14 (Declaration of David Davis) ¶ 8; doc. no. 26-15 (Declaration
of Diane Myrick) ¶ 5.
110

Doc. no. 26-1 (Deposition of Sheryl Leggs Hamilton, Part I), at 195-201; doc. no. 26-2
(Deposition of Sheryl Leggs Hamilton, Part II), at 202-08; doc. no. 26-4 (E-Mail Chain), at 104; doc.
no. 26-16 (Declaration of Cheryl Lee) ¶ 3.
111

Doc. no. 26-2 (Deposition of Sheryl Leggs Hamilton, Part II), at 212-17; doc. no. 26-14
(Declaration of David Davis) ¶ 8; doc. no. 26-15 (Declaration of Diane Myrick) ¶ 5.

29

handbook containing policies that prohibited disclosure of patient information.112
One event described in the evidence concerns a patient who returned an itemized bill
to defendant because the bill that had been mailed to her pertained to another patient.
Manager of Patient Accounts David Davis observed that plaintiff’s handwriting
appeared on the envelope in which the bill had been mailed.113 Davis also testified
that, “[w]hen he spoke to [plaintiff] about it, [she] told [him] that that was her
handwriting on the envelope.”114 Plaintiff’s declaration contradicts that assertion,
however, and says that her “handwriting never appeared on the envelope.”115 Further,
during her deposition plaintiff blamed the incident on Customer Service
Representative Shirely Cross, who also worked on the patient’s account.116 In
response to defendant’s motion for summary judgment, plaintiff mischaracterized
David Davis’s testimony and argued that Davis “admitted he never determined ‘for
sure’ that it was [plaintiff] who sent one patient’s account information to another
patient.”117 In fact, however, Davis testified as follows:
112

Doc. no. 26-1 (Deposition of Sheryl Leggs Hamilton, Part I), at 45, 47-57, 61-62; doc. no.
26-3 (Handbook Acknowledgment), at 68; id. (Employee Handbook), at 77.
113

Doc. no. 26-4 (Employee Reprimand), at 107; doc. no. 26-8 (Deposition of David Davis,
Part II), at 273-77.
114

Doc. no. 26-8 (Deposition of David Davis, Part II), at 276-77 (alterations supplied).

115

Doc. no. 48-1 (Original Declaration of Sheryl Leggs Hamilton) ¶ 24.

116

Doc. no. 26-1 (Deposition of Sheryl Leggs Hamilton, Part I), at 222-23, 225, 228.

117

Doc. no. 47 (Brief in Response to Motion for Summary Judgment), at 14 (alteration
supplied) (quoting doc. no. 26-8 (Deposition of David Davis, Part II), at 275).

30

A.

An itemized bill went out — was sent out by [plaintiff]. We got
a call saying, “This is not mine,” from the person that received it,
and we asked them to send it back to us, which they did, and they
sent it back to us also with the envelope that they were sent it in,
and it was a bill that [plaintiff] had sent out.

Q.

All right. And what did [plaintiff] tell you about that?

A.

What [plaintiff] said was that other people had handled the
account also. Other people had handled the account, but
[plaintiff] was the one that sent out the itemized bill. It appeared
that [plaintiff] had gotten more than one request for one that day
and had put the wrong request in the wrong envelope.

Q.

You say it appeared that way. Did you ever determine whether
that was the case or not?

A.

Well, she had gotten more than one request that day. Did I
determine that for sure? No, but it was determined that [plaintiff]
was the one who sent out the itemized bill.118

In sum, Davis testified clearly and repeatedly that plaintiff was the one who
mailed an itemized bill to the wrong patient. What Davis did not determine “for sure”
was the chain of events that caused plaintiff to misaddress the envelope in which the
bill was mailed. Regardless of the cause of the error, plaintiff was reprimanded for
violating defendant’s patient confidentiality policy on October 29, 2009.119
Plaintiff alleged that white “casual” employee Gayle Burgess and African118

Doc. no. 26-8 (Deposition of David Davis, Part II), at 274-75 (alterations and emphasis

supplied).
119

Doc. no. 26-2 (Deposition of Sheryl Leggs Hamilton, Part II), at 219-21; doc. no. 26-4
(Employee Reprimand), at 107; doc. no. 26-14 (Declaration of David Davis) ¶ 24.

31

American Customer Service Representative Carlette Robinson each sent itemized
bills to the wrong patients, but were not disciplined.120 (The specific duties of a
“casual” employee depend upon defendant’s needs. For example, when a full-time
employee takes a leave of absence, defendant may appoint a “casual” employee to
temporarily fill the position.121)
J.

Plaintiff’s Allegations that David Davis Made a Racist Statement
Manager of Patient Accounts David Davis allegedly yelled at plaintiff for

arriving late to a company meeting on January 12, 2010. Plaintiff testified that he
said: “You hurry up. You need to get in here. As African-Americans, y’all are
always running late. You just need to hurry up and get on in here because class has
already started.”122 Davis denied making the comment about “African-Americans .
. . . always running late.”123 (See also the discussion in Part III(B), supra.)
K.

Plaintiff’s 2009 Annual Performance Evaluation (See also Parts III(D) and
(G), supra, discussing plaintiff’s 2007 and 2008 annual performance
evaluations)
Team Leader Melinda England allegedly became plaintiff’s immediate

120

Doc. no. 26-2 (Deposition of Sheryl Leggs Hamilton, Part II), at 352-54, 357-59, 363, 407-

121

Doc. no. 26-15 (Declaration of Diane Myrick) ¶ 11.

122

Doc. no. 26-2 (Deposition of Sheryl Leggs Hamilton, Part II), at 239-41, 448-50.

123

Doc. no. 26-7 (Deposition of David Davis, Part I), at 75-76.

08.

32

supervisor in late 2009 or early 2010.124 Plaintiff’s declaration states: “All of my
performance evaluations were extremely high until Melinda England became one of
my supervisors in late 2009 and early 2010. My performance evaluations did not
drop below a rating of 3 until Melinda England became one of my supervisors.”125
Manager of Patient Accounts David Davis gave plaintiff an overall
performance rating of 2.97 out of 4 on March 23, 2010, including a 2.00 (the
numerical equivalent of “Requires Improvement”) in four categories of job
functions.126 In the “manager narrative” section, Davis explained that the low ratings
were based on a productivity comparison between plaintiff and defendant’s other
customer service representatives.127
Davis attached the productivity reports showing the number of accounts that
each customer service representative worked per hour, and the amount of time that
each representative spent “off line.”128 The reports showing the number of accounts
worked per hour were prepared by Recita Flie, another African-American

124

Doc. no. 48-1 (Original Declaration of Sheryl Leggs Hamilton) ¶¶ 3, 11.

125

Id. ¶ 11.

126

Doc. no. 26-5 (Performance Evaluation), at 1; doc. no. 26-8 (Deposition of David Davis,
Part II), at 230-31.
127

Doc. no. 26-5 (Performance Evaluation), at 1; doc. no. 26-8 (Deposition of David Davis,
Part II), at 235-37.
128

Doc. no. 26-5 (Performance Evaluation), at 1; doc. no. 26-8 (Deposition of David Davis,
Part II), at 247-49; doc. no. 26-14 (Declaration of David Davis) ¶¶ 10, 12.

33

employee.129 Those reports included defendant’s four “main” customer service
representatives: i.e., plaintiff; Carlette Robinson; Rose Hale; and Shirley Cross.130
Two of the four (plaintiff and Robinson) were African-American.131 The reports also
included two employees who performed both customer service and cashier duties
(Belinda Gotcher and Shirley Brannon), one of whom (Brannon) was AfricanAmerican.132 The reports showing the amount of time spent “off line” were pulled
from the computer system that enabled employees to work on patient accounts.133
According to plaintiff, the performance evaluation was a “sham,” because her
initials were “forged” in the “signatures” section of the contested document.134 Even
if that be so, plaintiff admitted that she met with Manager of Patient Accounts David
Davis on the date of the evaluation, and admitted to writing that she “d[id] not agree
with the evaluation” in the “comments” section of the document.135 That statement
was followed by the assertion that plaintiff sometimes had fewer callers and more

129

Doc. no. 26-5 (Performance Evaluation), at 1; doc. no. 26-8 (Deposition of David Davis,
Part II), at 235; doc. no. 26-14 (Declaration of David Davis) ¶ 11.
130

Doc. no. 26-5 (Performance Evaluation), at 4.

131

Id.

132

Id.

133

Doc. no. 26-14 (Declaration of David Davis) ¶ 12.

134

Doc. no. 48-1 (Original Declaration of Sheryl Leggs Hamilton) ¶¶ 5-6, 10-11; see also
doc. no. 26-5 (Performance Evaluation), at 13.
135

Doc. no. 26-2 (Deposition of Sheryl Leggs Hamilton, Part II), at 230-31; see also doc. no.
26-5 (Performance Evaluation), at 13 (alteration supplied).

34

walk-in customers, the argument that some patients required more service time than
others, and the question: “Do we really care about our customers?”136
Further, plaintiff believed that Davis should not have “compared [her,] as an
African American[,] to white employees.”137
Plaintiff also argued that the productivity reports were “incorrect,” because she
considered herself equally as productive as defendant’s other customer service
representatives based on her ability to overhear (i.e., eavesdrop on) their telephone
conversations with patients.138 Plaintiff testified that Rose Hale and Shirley Cross
(the two white customer service representatives) were productive, but she was not
aware of whether Carlette Robinson (the African-American representative) was
productive.139 When asked about Robinson, plaintiff disparaged her in racial terms:
Q.

. . . Carlette, Robinson, she was an African-American customer
service rep, wasn’t she?

A.

That’s correct, and she was one who wanted to be white. She was
an employee of [Manager of Patient Accounts David Davis] who
wanted to do and be white, and if you can read even in the
Birmingham papers and all papers, there is that discussion [about
the difference between] our black versus your black.

136

Doc. no. 26-5 (Performance Evaluation), at 13.

137

Doc. no. 26-2 (Deposition of Sheryl Leggs Hamilton, Part II), at 235, 255 (alterations

supplied).
138

Id. at 259-61; doc. no. 48-1 (Original Declaration of Sheryl Leggs Hamilton) ¶¶ 5-6, 10-

139

Id. at 268, 274.

11.

35

Q.

. . . What I want to know is do you know whether Ms. Robinson
received good performance reviews?

A.

What I do know was Ms. Robinson was/is a token employee for
Dave Davis.140

Plaintiff also attributed the difference between her productivity ratings and
those of her co-workers to the failure of pre-registration clerks to properly prepare her
accounts for processing.141 Nevertheless, plaintiff also acknowledged: that preregistration clerks had overlapping responsibilities; that pre-registration clerks
serviced all accounts; and that, if one pre-registration clerk was absent, another clerk
performed the absent clerk’s duties, as well as her own.142 Likewise, Central Business
Office Director Diane Myrick and Manager of Patient Accounts David Davis testified
that the quality of the performance of pre-registration clerks (or the lack thereof)
equally impacted the accounts of all customer service representatives.143
Further, plaintiff alleged that she was placed at a competitive disadvantage
compared to her white coworkers because Myrick and Davis did not permit her to
work from home, and because her coworkers did not inform her of changes to
140

Doc. no. 26-1 (Deposition of Sheryl Leggs Hamilton, Part I), at 172-75 (emphasis and
alterations supplied).
141

Doc. no. 26-2 (Deposition of Sheryl Leggs Hamilton, Part II), at 274-75, 284-86.

142

Id. at 420-24.

143

Doc. no. 26-8 (Deposition of David Davis, Part II), at 292-94; doc. no. 26-12 (Deposition
of Melinda England), at 122-24, 137; doc. no. 26-14 (Declaration of David Davis) ¶ 13; doc. no. 2615 (Declaration of Diane Myrick) ¶ 6.

36

defendant’s collection procedures.144 Plaintiff argued that “Melinda England, Dave
Davis, and Diane Myrick singled [her] out as an African-American,” and that she
“complained to Melinda England, Dave Davis, and Diane Myrick that [she] was being
singled out as an African-American.”145 (Plaintiff did not explain why she allegedly
complained to the very employees whom she accused of the discriminatory
conduct.146)
Plaintiff was placed on a ninety-day performance improvement plan, effective
March 23, 2010.147 One month later, Manager of Patient Accounts David Davis and
Team Leader Melinda England met with plaintiff to review her performance.148 Davis
informed plaintiff that her productivity had not improved, that she had failed to
service an account, and that he had witnessed her reading a novel at work.149 During
her deposition, plaintiff denied that she was less productive than her coworkers, and
144

Doc. no. 26-8 (Deposition of David Davis, Part II), at 372-373; doc. 26-9 (E-Mail Chain),
at 30; doc. no. 48-1 (Original Declaration of Sheryl Leggs Hamilton) ¶¶ 13, 16.
145

Doc. no. 48-1 (Original Declaration of Sheryl Leggs Hamilton) ¶¶ 6, 15 (alterations

supplied).
146

See id.

147

Doc. no. 26-2 (Deposition of Sheryl Leggs Hamilton, Part II), at 253-54; doc. no. 26-5
(Performance Evaluation), at 13.
148

Doc. no. 26-2 (Deposition of Sheryl Leggs Hamilton, Part II), at 263; doc. no. 26-5
(Employee Conference Form), at 15; id. (Charge of Discrimination), at 33; doc. no. 26-6 (Deposition
of David Davis, Part I), at 41; doc. no. 26-10 (Deposition of Diane Myrick), at 40-42; doc. no. 26-13
(Declaration of Rose Hale), at 46-48.
149

Doc. no. 26-2 (Deposition of Sheryl Leggs Hamilton, Part II), at 262-66; doc. no. 26-5
(Employee Conference Form), at 15; doc. no. 26-8 (Deposition of David Davis, Part II), at 282-93;
doc. no. 26-14 (Declaration of David Davis) ¶¶ 14-15.

37

that she failed to service the account in question.150 She also claimed that Davis had
not seen her reading a novel, but an employee reference manual.151
Plaintiff was not aware of any other employees who were disciplined for failing
to service an account, but she alleged that, in 2008, Manager of Patient Accounts
David Davis witnessed a white “casual” employee whose first name is “Baylee” (and
whose last name plaintiff does not know) reading a magazine, and that “Baylee” was
not reprimanded.152 Nevertheless, plaintiff acknowledged that she had not seen
“Baylee’s” personnel file, and was not present for the reprimands of other
employees.153
L.

Allegation That Plaintiff Misquoted the Amount of a Patient’s Debt
Team Leader Melinda England discovered that someone misquoted the amount

of a patient’s debt in response to an inquiry on May 10, 2010.154 Manager of Patient
Accounts David Davis reviewed the computer records for the patient’s account and
observed that “casual” employee Kayla Aldridge (who was performing the duties of
a pre-registration clerk) and plaintiff had each recorded electronic “notes” about their

150

Doc. no. 26-2 (Deposition of Sheryl Leggs Hamilton, Part II), at 261-78, 285-86.

151

Id.

152

Id. at 286, 270-73; doc. no. 26-14 (Declaration of David Davis) ¶¶ 14-15.

153

Doc. no. 26-2 (Deposition of Sheryl Leggs Hamilton, Part II), at 227-29, 273.

154

Doc. no. 26-2 (Deposition of Sheryl Leggs Hamilton, Part II), at 286; doc. no. 26-5
(England E-Mail), at 17; doc. no. 26-12 (Deposition of Melinda England), at 82-83.

38

work in the computer data files of the account.155
Specifically, Kayla Aldridge had written a “note” stating: “It looks like [the
amount of the debt] may be $12,000.”156 It was plaintiff’s duty as a customer service
representative to verify that amount with defendant’s employee Shauna Brink, Team
Leader Melinda England, Manager of Patient Accounts David Davis, or Central
Business Office Director Diane Myrick.157 Based on plaintiff’s electronic “notes,”
Davis concluded that she had quoted the unverified $12,000 amount to the patient.158
As a result of the incorrect quotation, the patient overpaid her bill by $9,480.159
Accordingly, Team Leader Melinda England e-mailed plaintiff instructions to “call
[the] patient [and] apologize and explain that she will receive [a] refund check for the
difference.”160 Plaintiff did as England asked.161 Plaintiff testified that she received
a disciplinary write-up.162 (Assuming the write-up still exists, it has not been
submitted into evidence.)

155

Doc. no. 26-8 (Deposition of David Davis, Part II), at 318-24.

156

Id. at 319 (alteration supplied).

157

Id. at 320-21; doc. no. 26-10 (Deposition of Diane Myrick), at 133-34; doc. no. 26-14
(Declaration of David Davis) ¶ 16.
158

Doc. no. 26-2 (Deposition of Sheryl Leggs Hamilton, Part II), at 287; doc. no. 26-8
(Deposition of David Davis, Part II), at 318-26; doc. no. 26-14 (Declaration of David Davis) ¶ 16.
159

Doc. no. 26-5 (England E-Mail), at 17.

160

Id. (alterations supplied).

161

Doc. no. 26-2 (Deposition of Sheryl Leggs Hamilton, Part II), at 286-87.

162

Id. at 290-91.

39

Plaintiff blamed the incorrect quotation on six white coworkers, none of whom
were disciplined for the incident.163 At her deposition, plaintiff alleged that the
quotation “came from [Team Leader] Melinda England, Rose Patterson . . . Shauna
Brink[,] and Lindsey Garner.”164 In her declaration, plaintiff asserted that the
quotation “was actually given to the patient by Belinda Gotcher, Kayla Aldridge, and
Shanna [sic] Brink.”165 (Patterson, Brink, Gardner, Gotcher, and Aldridge appear to
be “casual” employees.166) Further, plaintiff testified that Lindsey Gardner misquoted
the amount of a patient’s debt on another occasion in 2010, but was not disciplined.167
M.

Allegation that Plaintiff Discussed the Patient Account of a Coworker’s
Husband at a Departmental Staff Meeting
Some customer service representatives had relatives who were patients at

Russellville Hospital.168 In order to prevent those employees from violating the
Health Insurance Portability and Accountability Act of 1996, Pub. L. No. 104-191,
110 Stat. 1936 (1996) (“HIPAA”), defendant prohibited those representatives from
163

See doc. no. 26-2 (Deposition of Sheryl Leggs Hamilton, Part II), at 400-05; doc. no. 26-8
(Deposition of David Davis, Part II), at 318-24.
164

Id. at 289 (alterations supplied). The parties spell the first name of Shauna Brink as, e.g.,
“Shauna” and “Shanna,” and the last name of Lindsey Gardner as, e.g., “Gardner” and “Garner.”
This court will refer to the employees as Shauna Brink and Lindsey Gardner, with apologies if those
spellings are not correct.
165

Doc. no. 48-1 (Original Declaration of Sheryl Leggs Hamilton) ¶ 32.

166

See doc. no. 26-8 (Deposition of David Davis, Part II), at 318-24.

167

Doc. no. 26-2 (Deposition of Sheryl Leggs Hamilton, Part II), at 400-05.

168

Doc. no. 26-2 (Deposition of Sheryl Leggs Hamilton, Part II), at 295-301.

40

handling their relatives’ patient accounts.169
Plaintiff alleged that Belinda Gotcher (who performed both customer service
and cashier duties) had disobeyed defendant’s policies by marking her husband’s
account as “cleared” of a past-due debt.170 When an account is “cleared,” it does not
necessarily mean that it has been paid in full or the debt forgiven; instead, the term
indicates that the patient has been called, and that defendant has received a payment,
a promise to pay, or a refusal to pay.171
Plaintiff spoke about the account of Gotcher’s husband during a customer
service meeting on May 17, 2010.172 The meeting was attended by Manager of
Patient Accounts David Davis, Team Leader Melinda England, Customer Service
Representatives Carlette Robinson and Shirley Cross, and, possibly, by other
customer service employees.173 The parties offered two different versions of what
occurred. Davis alleged that, during the “open meeting,” plaintiff asked whether

169

Doc. no. 26-12 (Deposition of Melinda England), at 127-29; doc. no. 26-13 (Deposition
of Rose Hale), at 28-30.
170

Doc. no. 26-2 (Deposition of Sheryl Leggs Hamilton, Part II), at 295-301. In the interests
of privacy, the parties generally refer to Gotcher as “BG.” See, e.g., id. at 308.
171

Doc. no. 26-8 (Deposition of David Davis, Part II), at 178-79; doc. no. 26-10 (Deposition
of Diane Myrick), at 251-53, 263.
172

Doc. no. 26-2 (Deposition of Sheryl Leggs Hamilton, Part II), at 293-99, doc. no. 26-8
(Deposition of David Davis, Part II), at 153-54; doc. no. 26-14 (Declaration of David Davis) ¶ 17.
173

Doc. no. 26-2 (Deposition of Sheryl Leggs Hamilton, Part II), at 293-99, doc. no. 26-8
(Deposition of David Davis, Part II), at 153-54; doc. no. 26-14 (Declaration of David Davis) ¶ 17.

41

Gotcher “should . . . have touched her own husband’s account.”174 Davis answered
that the meeting was not the proper forum to discuss that issue.175
In contrast, plaintiff alleged that, during the open meeting, she asked only
whether “we still cleared accounts.”176 Then, as her coworkers “were going out of the
room,” she asked Davis whether employees should access their family members’
accounts, and suggested that Davis speak to Gotcher about the matter.177 Plaintiff
denied that Davis told her that the meeting was not the proper forum to discuss the
Gotcher account.178
Gotcher, who did not attend the meeting, learned about plaintiff’s statements
from others.179 Plaintiff contends that Gotcher heard a false version of the statements
from Central Business Officer Director Diane Myrick.180 However, the exhibit
plaintiff cites does not support that contention, because it is merely a page from a
“Manager File” that discusses the incident and bears Myrick’s signature. There is no
evidence that the file was shared with Gotcher. In any event, Gotcher complained
174

Doc. no. 26-8 (Deposition of David Davis, Part II), at 163.

175

Doc. no. 26-14 (Declaration of David Davis) ¶ 17.

176

Doc. no. 26-2 (Deposition of Sheryl Leggs Hamilton, Part II), at 294.

177

Id. at 297, 324.

178

Id. at 299.

179

Id. at 300-01; doc. no. 26-14 (Declaration of David Davis) ¶ 20; doc. no. 26-15
(Declaration of Diane Myrick) ¶ 7.
180

Doc. no. 47 (Brief in Response to Motion for Summary Judgment), at 25 (citing doc. no.
36-12 (Manager File), at 2).

42

about plaintiff to Myrick and Davis; Myrick instructed plaintiff to apologize to
Gotcher; and plaintiff did as she was directed.181
Myrick and Davis alleged that plaintiff’s conduct was wrong for two reasons.
First, according to David Davis, plaintiff violated the HIPAA rule “which says that
unless you have a business need to know about an account, you are not to look at an
account or discuss one, and in that situation, no one in that room had a business need
to know about that situation.”182 Second, and again according to David Davis,
plaintiff “embarrassed [Gotcher] in front of her fellow employees.”183 In support of
that belief, Davis observed that plaintiff could have asked the same question about
handling the account of a spouse without identifying Gotcher or her husband by
name.184
In any event, Gotcher was not reprimanded for “clearing” her husband’s
account.185 Plaintiff alleged that “[t]he real problem was [that Gotcher] had been

181

Doc. no. 26-8 (Deposition of David Davis, Part II), at 278; doc. no. 26-14 (Declaration
of David Davis) ¶ 20; doc. no. 26-15 (Declaration of Diane Myrick) ¶ 7.
182

Doc. no. 26-8 (Deposition of David Davis, Part II), at 166; see also id. at 154-71, 175-77,
189, 199-202; doc. no. 26-10 (Deposition of Diane Myrick), at 264-65, 276-278, 281, 287-91.
183

Doc. no. 26-8 (Deposition of David Davis, Part II), at 172 (alteration supplied); see also
id. at 166-67, 172-73; doc. no. 26-14 (Declaration of David Davis) ¶ 17; doc. no. 26-15 (Declaration
of Diane Myrick) ¶ 8.
184

Doc. no. 26-8 (Deposition of David Davis, Part II), at 169.

185

Doc. no. 26-2 (Deposition of Sheryl Leggs Hamilton, Part II), at 301-10; doc. no. 26-11
(Deposition of Cheryl Lee), at 78-82.

43

caught ‘clearing’ her husband’s account, but because [Gotcher] is white, [plaintiff],
[who is] black, was made a scapegoat to cover for [Gotcher].”186
N.

Allegation That Plaintiff Hung Up on a Patient in the Middle of a
Conversation
On May 18, 2010 — the day after the staff meeting discussed above — a

patient complained that an employee hung up on him in the middle of a
conversation.187 After reviewing the computer records for the patient’s account,
Manager of Patient Accounts David Davis determined that plaintiff was the only
customer service representative who spoke to the patient on that day.188
Plaintiff was not aware of the exact content of the patient’s complaint with
regard to the telephone call.189 Even so, plaintiff denied that she hung up on a patient
in the middle of a conversation, and blamed the incident on unknown individuals
employed by unnamed outside debt collection agencies.190
O.

Allegation that Plaintiff Discussed the Patient Account of a Coworker’s
Husband in a Group E-mail
On May 19, 2010 — two days after the departmental staff meeting during
186

Doc. no. 47 (Brief in Response to Motion for Summary Judgment), at 24 (alterations
supplied) (citing doc. no. 48-1 (Original Declaration of Sheryl Leggs Hamilton), at 12-13, 22-23,
26-27).
187

Doc. no. 26-14 (Declaration of David Davis) ¶ 19.

188

Id.

189

Doc. no. 26-2 (Deposition of Sheryl Leggs Hamilton, Part II), at 327-28.

190

Doc. no. 48-1 (Original Declaration of Sheryl Leggs Hamilton) ¶¶ 38-40.

44

which plaintiff discussed the issue of Belinda Gotcher’s act of allegedly “clearing”
her husband’s account — plaintiff sent an e-mail to approximately twelve people that
again discussed the account of Gotcher’s husband, and, included the names of both
Belinda Gotcher and her husband.191 The recipients of the e-mail included Central
Business Office Director Diane Myrick, Manager of Patient Accounts David Davis,
defendant’s employee Shauna Brink, and all members of the Revenue Integrity
Specialist Team and Central Business Office Management Team.192
Like the comments attributed to plaintiff at the May 17th customer service staff
meeting, plaintiff’s May 19th e-mail addressed the issue of whether representatives
were supposed “to work up family members[’] accounts.”193 Central Business Office
Director Diane Myrick and Manager of Patient Accounts David Davis deemed the email a second violation of HIPAA privacy rules, because plaintiff could have asked
her question about the duties of customer service representatives without using the
names of Gotcher and her husband.194
P.

Plaintiff’s Suspension and Termination
191

Doc. no. 26-2 (Deposition of Sheryl Leggs Hamilton, Part II), at 301-07; doc. no. 26-5
(Hamilton E-Mail), at 18-19; doc. no. 26-14 (Declaration of David Davis) ¶ 18; doc. no. 26-15
(Declaration of Diane Myrick) ¶ 9.
192

Doc. no. 26-5 (Hamilton E-Mail), at 18.

193

Id. (alteration supplied).

194

Doc. no. 26-8 (Deposition of David Davis, Part II), at 154-71, 175-77, 189, 199-202; doc.
no. 26-10 (Deposition of Diane Myrick), at 263-65, 276-278, 281, 287-91.

45

On May 21, 2010, four days after plaintiff sent the foregoing e-mail, Central
Business Office Director Diane Myrick, Manager of Patient Accounts David Davis,
and Human Resources Director Cheryl Lee jointly made the decision to suspend
plaintiff.195 To reach her decision, Cheryl Lee relied: on conversations with plaintiff,
Myrick, Davis, Team Leader Melinda England, and Human Resources Coordinator
Kim Cole; on documentation from Myrick, Davis, England, and defendant’s
employee Melinda Gotcher; and on notes from the meeting at which plaintiff
allegedly discussed the confidential patient information of Gotcher’s husband.196
A notice of suspension was issued to plaintiff on May 21, 2010.197 In the
spaces provided to explain the reasons for that action, “confidentiality” and
“performing poor work” were marked.198 Specifically, the notice stated:
[Plaintiff] committed a HIPAA violation by discussing an
employee’s husband’s account verbally in a meeting and by e-mail to
persons without a business need to know. [Plaintiff] has also shown no
improvement through her Performance Improvement Evaluation period.
Suspension beginning today until HIPAA violation is
investigated. Productivity and patient response will be taken into
195

Doc. no. 26-2 (Deposition of Sheryl Leggs Hamilton, Part II), at 347-50; doc. no. 26-11
(Deposition of Cheryl Lee), at 54-55, 66-71; doc. no. 26-8 (Deposition of David Davis, Part II), at
150-52; doc. no. 26-10 (Deposition of Diane Myrick), at 176-77.
196

Doc. no. 26-11 (Deposition of Cheryl Lee), at 69, 73.

197

Doc. no. 26-2 (Deposition of Sheryl Leggs Hamilton, Part II), at 214, doc. no. 26-5 (Notice
of Suspension), at 21; doc. no. 26-14 (Declaration of David Davis) ¶¶ 18, 21.
198

Doc. no. 26-5 (Notice of Suspension), at 21.

46

consideration.199
In the section entitled “employee comments,” plaintiff responded:
Didn’t hang up on Mr. John Doe . . . He continued to talk about
his health situation. I listen but as I offered FC [presumably, financial
counseling] and at the end I concluded the call.200 I did not quote wrong
price to pt [presumably, patient].201 Several clerks spoke to pt. I should
not have given acct. [presumably, account] name. I only did because at
other times the acct. names have been brought by the group.202
After meeting with plaintiff to discuss her suspension, Central Business Office
Director Diane Myrick and Manager of Patient Accounts David Davis recommended
to Human Resources Director Cheryl Lee that plaintiff be fired.203 Myrick and Davis
identified four reasons in favor of termination: i.e., plaintiff’s failure to improve her
productivity while she was on a performance improvement plan; her discussion of the
patient account of a co-worker’s husband in a departmental staff meeting and
subsequent e-mail; the fact that she hung up on a patient in the middle of a
conversation; and the fact that she misquoted a patient’s debt by a significant

199

Id. (alterations supplied).

200

Nota bene that this admission that plaintiff spoke with the customer who complained
about her hanging up on him is not consistent with her denials discussed in Part III(N), supra.
201

See also Part III(L), supra, discussing the allegation that plaintiff misquoted the unverified
amount of a patient’s account by more than $9,000.
202

Id. (ellipses in original) (alterations supplied).

203

Doc. no. 26-10 (Deposition of Diane Myrick), at 176-77; doc. no. 26-14 (Declaration of
David Davis) ¶¶ 18-22; doc. no. 26-15 (Declaration of Diane Myrick) ¶ 10.

47

amount.204
Upon receiving the recommendation of termination, Human Resources Director
Cheryl Lee reviewed: plaintiff’s personnel file; documentation from Diane Myrick
and David Davis; and information from Team Leader Melinda England and
defendant’s employee Belinda Gotcher.205 (The information provided by England
consisted of e-mails regarding the allegations that plaintiff misquoted the amount of
a patient’s debt and failed to service an account.206 England’s e-mails were included
in documentation given to Lee by Davis and placed in plaintiff’s personnel file.207)
Human Resources Director Cheryl Lee approved the recommendation of
Myrick and Davis that plaintiff be terminated on May 27, 2010.208 Other than
drafting the e-mails given to Lee by Davis, Melinda England did not participate in
Lee’s decision-making process.209
Q.

Plaintiff’s Appeal of the Termination Decision

204

Doc. no. 26-8 (Deposition of David Davis, Part II), at 148-52; doc. no. 26-10 (Deposition
of Diane Myrick), at 176-77; doc. no. 26-14 (Declaration of David Davis) ¶¶ 16-22; doc. no. 26-15
(Declaration of Diane Myrick) ¶ 10.
205

Doc. no. 26-11 (Deposition of Cheryl Lee), at 54-55, 57, 66-71, 90-92.

206

Doc. no. 26-16 (Declaration of Cheryl Lee) ¶ 4.

207

Id.

208

Doc. no. 26-2 (Deposition of Sheryl Leggs Hamilton, Part II), at 333-35; doc. no. 26-11
(Deposition of Cheryl Lee), at 54-55, 57, 66-71, 90-92.
209

Doc. no. 26-12 (Deposition of Melinda England), at 61-63; doc. no. 26-17 (Declaration
of Melinda England) ¶ 4.

48

Plaintiff appealed her termination in accordance with defendant’s “five-step
problem-solving procedure,” which was described in defendant’s Employee
Handbook as follows:
Step 1: An Employee should make every reasonable effort to
work out with their immediate supervisor any grievance or matter that
merits discussion. This is most successful when the matter is fresh in
the minds of everyone; therefore, a written grievance must be presented
within five working days after the incident.· The supervisor will discuss
the complaint with the employee within three workdays or within a
reasonable time from the time he/she is made aware of the complaint.
The supervisor will reply to the employee within five workdays or a
reasonable time, stating the action taken on the complaint.
Step 2: If after receiving the answer from the supervisor, the
matter is not resolved, the employee should submit a written complaint
to the Department Manager and the Human Resources Director. This
contact must be made within three workdays after receiving the decision
of the supervisor. Within five working days or a reasonable time from
receiving the appeal from the first step, the Department Manager and the
supervisor will meet the employee in an effort to resolve the complaint.
A written reply will be given by the Department Manager within five
days or a reasonable time following the meeting.
Step 3: If after receiving the reply from the Department Manager,
the matter is not resolved, the employee should submit a written
complaint to the appropriate Administrative representative, the Facility
Administrator and the Human Resources Director within three working
days after receiving the reply from the Department Manager. Within ten
workdays after receiving the complaint, the appropriate Administrative
representative will meet with the employee and the appropriate
supervisors. A written reply will be given to the employee within ten
workdays or a reasonable time from the review of the complaint.
Step 4: If after receiving the response from the Administrative
49

Representative the matter is not resolved, the employee should submit
a written complaint to the Chief Operating Officer (COO) or Chief
Financial Officer (CFO), whichever is applicable, within three working
days after receiving the reply from the Administrative Representative.
Within ten working days after receiving the complaint, the COO/CFO
will meet with the employee and the appropriate supervisors to review
the complaint. A written reply will be given to the employee within ten
working days or a reasonable time from the review of the comp [sic].
Step 5: Appeals following the steps outlined above may be made
by submitting the complaint, in writing, within three working days, to
the President/Chief Executive Officer (CEO) and the Human Resources
Director. Within ten working days or a reasonable time after receiving
the complaint, the President/CEO will review the complaint with the
employee and the appropriate supervisors. A written reply will be given
to the employee within ten working days or within a reasonable time
from the review of the complaint. The decision of the President/CEO
shall be the final decision.
Note: If any of the above listed steps are not applicable to your
reporting structure, proceed to the next appropriate step to begin the
problem solving procedure.210
Defendant was in the process of selling the hospital during plaintiff’s pursuit
of her appeal rights.211 Even so, plaintiff and defendant completed all except the fifth
step of the “problem-solving procedure”: i.e., a meeting with the president or chief
executive officer.212 Human Resources Director Cheryl Lee sent plaintiff a letter
upholding the termination decision in the absence of such a meeting on July 27, 2010,
210

Id. at 342, doc. no. 26-3 (Employee Handbook), at 101; doc. no. 26-5 (Lee Letter), at 26,
doc. no. 26-11 (Deposition of Cheryl Lee), at 18-24.
211

Doc. no. 26-11 (Deposition of Cheryl Lee), at 44-49, 60.

212

Id.

50

saying that
when you and I last talked on the telephone in June, 2010, the hospital
was in the final stages of being sold to Regional Care Hospital Partners.
At that time, [Interim CEO Jody] Pigg was heavily involved in the
process and was frequently out of town and unavailable locally in
completion of the sale. Mr. Pigg resigned as CEO of the hospital at the
end of June and is no longer employed by the hospital in that position.
In light of Mr. Pigg’s departure and the change of ownership, we are
unable to proceed further.
After further review and consideration of your appeal, I am
supportive of the prior decision to terminate your employment.
Accordingly, the problem solving process is concluded at this step.213
Plaintiff alleged that defendant “replaced [Interim Chief Executive Officer]
Jody Pigg,” and that plaintiff “could have had her right to appeal honored.”214 In
support, plaintiff offered a string of citations, none of which stated that Pigg was
“replaced,” as opposed to voluntarily resigning his position.215
R.

Plaintiff’s Replacement
Defendant replaced plaintiff with Jerica Pace, a white female.216 Pace was

herself fired on October 12, 2010, however, because she was not able to meet

213

Doc. no. 26-9 (Lee Letter), at 47; doc. no. 26-11 (Deposition of Cheryl Lee), at 47-48.

214

Doc. no. 47 (Brief in Response to Motion for Summary Judgment), at 31 (alteration

supplied).
215

See id. (citing doc. no. 26-3 (Employee Handbook), at 101-02; doc. no. 26-7 (Deposition
of David Davis, Part I), at 77-82; doc. no. 26-9 (Appeal Letters), at 46-49; doc. no. 26-11
(Deposition of Cheryl Lee), at 18-35, 42-49, 60, 83-84.
216

Doc. no. 26-14 (Declaration of David Davis) ¶ 23.

51

productivity requirements.217
IV. PLAINTIFF’S RETALIATION CLAIM
Title VII’s “opposition clause” protects an employee who “oppose[s] any
practice made an unlawful employment practice.” 42 U.S.C. § 2000e–3(a); see also
Equal Employment Opportunity Commission v. Total System Services, Inc., 221 F.3d
1171, 1174 (11th Cir. 2000).
Prior to commencing a lawsuit based upon any portion of Title VII, a plaintiff
must first file an administrative charge of discrimination with the EEOC. See, e.g.,
Gregory v. Georgia Department of Human Resources, 355 F.3d 1277, 1279 (11th Cir.
2004) (citing Sanchez v. Standard Brands, Inc., 431 F.2d 455, 460 (5th Cir. 1970)218).
Defendant’s motion for summary judgement asserts that plaintiff failed to exhaust her
administrative remedies with respect to her retaliation claim because, when filing her
EEOC charge of discrimination, plaintiff did not check the box for retaliation, and did
not allege that defendant had retaliated against her for engaging in protected
conduct.219
217

Id.

218

In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), the
Eleventh Circuit adopted as binding precedent all Fifth Circuit decisions handed down prior to the
close of business on September 30, 1981.
219

Doc. no. 25 (Brief in Support of Motion for Summary Judgment), at 20-21; see also doc.
no. 1 (Complaint), at 9. As noted in footnote 4, supra, the EEOC charge appears as page 9 of
plaintiff’s complaint, rather than as a separate exhibit.

52

In response, plaintiff argues that she stated a claim for retaliation in her EEOC
intake questionnaire.220 While it is true that plaintiff marked the box for retaliation
on the questionnaire, she did not describe the protected conduct in which she
allegedly had engaged, and for which defendant allegedly retaliated against her, and
she did not indicate the dates on which she allegedly engaged in such protected
conduct.221
The Eleventh Circuit has held that “a verified intake questionnaire that includes
the basic information suggested by 29 C.F.R. § 1601.12(a) may constitute a charge
for purposes of . . . Title VII[.]” Wilkerson v. Grinnell Corp., 270 F.3d 1314, 1321
(11th Cir. 2001) (emphasis and alteration supplied). The regulatory provision cited
in that case, 29 C.F.R. § 1601.12(a), requires, among other things, “[a] clear and
concise statement of the facts, including pertinent dates, constituting the alleged
unlawful employment practices.” 29 C.F.R. § 1601.12(a)(3) (alteration supplied).
Thus, plaintiff failed to exhaust the administrative remedies for her retaliation claim.
To overcome that defect, plaintiff argues that she brings her complaint under
both Title VII and 42 U.S.C. § 1981.222 Section 1981 contains no administrative

220

Doc. no. 47 (Brief in Response to Motion for Summary Judgment), at 47 (citing doc. no.
26-5 (EEOC Intake Questionnaire), at 33-36).
221

See doc. no. 26-5 (EEOC Intake Questionnaire).

222

Doc. no. 47 (Brief in Response to Motion for Summary Judgment), at 46.

53

exhaustion requirement.223 However, neither plaintiff’s complaint, nor the attached
charge of discrimination, contain a reference to 42 U.S.C. § 1981.224 Instead, the
EEOC charge of discrimination specifically refers to only Title VII and the ADEA.225
Further, the complaint includes claims “for racial and age discrimination”; it does not
include the word “retaliation”; it does not specify plaintiff’s allegedly protected
conduct; and it does not state the dates on which she voiced her opposition to
defendant’s allegedly unlawful employment practices.226 Therefore, regardless of
whether plaintiff proceeds under Title VII or § 1981, her complaint does not state a
cognizable claim for retaliation.
To convince this court to apply the liberal standard for pro se pleadings,
plaintiff argues that she “was unrepresented when she filed her EEOC Charge, EEOC
Questionnaire, and Complaint,” and that “[t]his Court ordered that [she] could not
amend her Complaint.”227
While plaintiff was indeed pro se until June 13, 2011, the date on which her

223

Id.

224

See doc. no. 1 (Complaint).

225

Id. at 9.

226

Doc. no. 1 (Complaint), at 6 (emphasis supplied).

227

Doc. no. 47 (Brief in Response to Motion for Summary Judgment), at 46 (citing doc. no.
48-1 (Original Declaration of Sheryl Leggs Hamilton) ¶ 2); id. at 46 n.11 (alterations supplied)
(citing doc. no. 16 (Scheduling Order), at 1).

54

attorney filed a notice of appearance,228 the court’s scheduling order allowed plaintiff
and her retained attorney until August 1st of the same year to file an amendment to
her complaint.229 Thus, plaintiff had, with the assistance of counsel, more than one
month in which to amend her complaint for the purpose of stating a claim for
retaliation.
Therefore, for all of the reasons discussed above, this court will enter summary
judgment in favor of defendant on plaintiff’s purported retaliation claim.
V. PLAINTIFF’S DISCRIMINATION CLAIM FOR HER DISCIPLINE,
SUSPENSION, AND TERMINATION
Title VII prohibits an employer from discriminating “against any individual
with respect to his [or her] compensation, terms, conditions, or privileges of
employment, because of such individual’s race, color, religion, sex, or national
origin.” 42 U.S.C. § 2000e-2(a)(1) (alteration supplied). As plaintiff does not rely
upon direct evidence of discrimination, the court will apply the framework for
assessing claims that are based on circumstantial evidence. Under that framework,
the employee bears the initial burden of stating a prima facie case of the employer’s
intent to discriminate on the basis of the employee’s protected characteristic — here,
plaintiff’s race. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). See
228

See doc. no. 11 (Notice of Appearance).

229

Doc. no. 16 (Scheduling Order), at 1.

55

also, e.g., St. Mary’s Honor Center v. Hicks, 509 U.S. 502, 506 (1993); Texas
Department of Community Affairs v. Burdine, 450 U.S. 248, 252-53 (1981). If the
employee does so, the prima facie case gives rise to “a presumption that the employer
unlawfully discriminated against [her].” Burdine, 450 U.S. at 254 (alteration
supplied).
The employer then bears the burden of producing, but not proving, a legitimate,
nondiscriminatory reason for the challenged employment action. See McDonnell
Douglas, 411 U.S. at 802. “If the [employer] carries this burden of production, the
presumption raised by the prima facie case is rebutted,” Burdine, 450 U.S. at 255, and
“drops from the case.” Id. at 255 n.10 (alteration supplied).
Finally, at the third step of the analytical progression, the employee “has the
opportunity to come forward with evidence, including the previously produced
evidence establishing the prima facie case, sufficient to permit a reasonable factfinder
to conclude that the reasons given by the employer were not the real reasons for the
adverse employment action.” Combs v. Plantation Patterns, 106 F.3d 1519, 1528
(11th Cir. 1997) (citations omitted).
A.

Plaintiff’s Prima Facie Case
In discharge situations, courts generally require a plaintiff to demonstrate that:

(1) she was a member of a class of persons protected by the statute; (2) she was
56

qualified for the position from which she was discharged; (3) she was, nevertheless,
terminated; and (4) following her discharge, the defendant either replaced the plaintiff
with someone outside her protected class, or retained other employees who were not
within the protected class, and, who possessed comparable or lesser qualifications.
See, e.g., Jones v. Bessemer Carraway Medical Center, 137 F.3d 1306, 1311 n.6
(11th Cir. 1998);230 Nix v. WLCY Radio/Rahall Communications, 738 F.2d 1181,
230

The Eleventh Circuit held in Jones v. Gerwens, 874 F.2d 1534 (11th Cir. 1989), a case in
which a black police officer was suspended as discipline for unauthorized use of a police vehicle,
but white police officers who allegedly had committed similar offenses received lesser discipline,
or no discipline at all, that
in cases involving alleged racial bias in the application of discipline for violation of
work rules, the plaintiff, in addition to being a member of a protected class, must
show either (a) that he did not violate the work rule, or (b) that he engaged in
misconduct similar to that of a person outside the protected class, and that the
disciplinary measures enforced against him were more severe than those enforced
against the other persons who engaged in similar misconduct.
Id. at 1540. That holding was questioned in the case accompanying this footnote: i.e., Jones v.
Bessemer Carraway Medical Center, 137 F.3d 1306 (11th Cir. 1998), a case in which a black,
female licensed practical nurse was discharged for violation of work-rules (i.e., failing to wear
required uniform to work, and failing to follow a supervisor’s instructions), while white employees
allegedly were treated more favorably for similar conduct. The Eleventh Circuit wrote:
Considering the facts in Jones [v. Gerwens], our impression is that words
about “did not violate the work rule” are unnecessary to the decision in Jones and are
dicta; but we will discuss them. The pertinent words in Jones demand not two, but
three elements: (1) the plaintiff is a member of a protected class; (2) the plaintiff has
engaged — either (a) disputedly or (b) admittedly — in misconduct similar to
persons outside the protected class; and (3) that similarly situated, nonminority
employees (that is, persons outside the protected class) received more favorable
treatment.
We stress that, under the Jones formulation, no plaintiff can make out a prima
facie case by showing just that she belongs to a protected class and that she did not

57

1185 (11th Cir. 1984); Whiting v. Jackson State University, 616 F.2d 116, 121 (5th
Cir. 1980).
None of those elements are disputed. Plaintiff is an African-American; she was
qualified for the position of customer service representative; she was disciplined,
suspended and ultimately fired; and she was replaced by Jerica Pace, a white
female.231 Accordingly, defendant acknowledges that plaintiff “can establish a prima
facie case related to her termination for purposes of summary judgment.”232
B.

Defendant’s Allegedly Legitimate, Non-Discriminatory Reasons
Defendant identified four reasons for plaintiff’s discipline, suspension, and

termination: i.e., her failure to improve her productivity while she was on a
performance improvement plan; her discussion of the patient account of a coworker’s
husband in a departmental staff meeting and subsequent e-mail; the fact that she hung
up on a patient during a telephone conversation; and the fact that she misquoted a

violate her employer’s work rule. The plaintiff must also point to someone similarly
situated (but outside the protected class) who disputed a violation of the rule and who
was, in fact, treated better.
Id. at 1311 n.6.
231

See doc. no. 25 (Brief in Support of Motion for Summary Judgment), at 22. In its
discussion of the prima facie case of discrimination, defendant states only that plaintiff “was
replaced by a younger individual,” without specifying the race of that individual. Id. Earlier,
however, defendant described plaintiff’s replacement as “Caucasian.” Id. at 17 (citing Declaration
of David Davis) ¶ 23).
232

Doc. no. 25 (Brief in Support of Motion for Summary Judgment), at 22.

58

patient’s debt by a significant amount.233 Therefore, defendant has carried its burden
of production, and the burden shifts back to plaintiff “to come forward with evidence,
including the previously produced evidence establishing the prima facie case,
sufficient to permit a reasonable factfinder to conclude that the reasons given by the
employer were not the real reasons for the adverse employment action.” Combs, 106
F.3d at 1528 (citations omitted).
C.

Pretext
Plaintiff may prove that a defendant’s stated reasons for its actions are

pretextual in two ways: “either directly by persuading the court that a discriminatory
reason more likely motivated the employer or indirectly by showing that the
employer’s proffered explanation is unworthy of credence.” Burdine, 450 U.S. at 256
(emphasis supplied) (citing McDonnell Douglas, 411 U.S., at 804-05).234
1.

Direct evidence of pretext

233

Doc. no. 26-8 (Deposition of David Davis, Part II), at 148-52; doc. no. 26-10 (Deposition
of Diane Myrick), at 176-77; doc. no. 26-14 (Declaration of David Davis) ¶¶ 16-22; doc. no. 26-15
(Declaration of Diane Myrick) ¶ 10.
234

Direct evidence of pretext is a distinct concept from direct evidence of discrimination.
For example, a plaintiff may submit discriminatory statements as evidence of pretext, despite the fact
that they are “not direct evidence of discrimination because they are either too remote in time or too
attenuated.” Jackson v. City of Centreville, No. 7:09-CV-2115-SLB, 2012 WL 4482391, *47-48
(N.D. Ala. Sept. 24, 2012) (citing Ross v. Rhodes Furniture, Inc., 146 F.3d 1286, 1291-92 (11th Cir.
1998)). Such statements “may provide circumstantial evidence that, when read in conjunction with
the entire record, show a decision-maker’s discriminatory attitude .” Jackson, 2012 WL 4482391,
at * 47-48 (citing Ross, 146 F.3d at 1291-92).

59

Plaintiff does not characterize the evidence she offers to contradict defendant’s
stated reasons as either direct or indirect evidence of pretext. Even so, she makes two
allegations that arguably constitute attempts to establish direct evidence of pretext.
First, plaintiff claims that Team Leader Melinda England came to work with a tag
depicting the confederate flag on the front bumper of her automobile at some point
in 2007 — i.e., three years before plaintiff’s termination.235 Second, plaintiff
contends that Manager of Patient Accounts David Davis yelled at her for arriving late
to a company meeting on January 12, 2010, saying: “You hurry up. You need to get
in here. As African-Americans, y’all are always running late. You just need to hurry
up and get on in here because class has already started.”236
With regard to Team Leader Melinda England’s tag, Human Resources
Director Cheryl Lee testified, without contradiction, that: England drafted several emails regarding the allegations that plaintiff misquoted the amount of a patient’s debt
and failed to service an account; England’s e-mails were included in documentation
given to Lee by Davis and placed in plaintiff’s personnel file; and England had no
other input into the decision to discipline, suspend, or terminate plaintiff’s
235

Doc. no. 26-1 (Deposition of Sheryl Leggs Hamilton, Part I), at 413-14; doc. no. 26-12
(Deposition of Melinda England), at 34-40; doc. no. 26-17 (Declaration of Melinda England) ¶ 3.
236

Doc. no. 26-2 (Deposition of Sheryl Leggs Hamilton, Part II), at 239-41, 448-50. Not
surprisingly, Davis denied making the comment about “African-Americans . . . . always running
late.” Doc. no. 26-7 (Deposition of David Davis, Part I), at 75-76.

60

employment.237 “[C]omments by non-decisionmakers do not raise an inference of
discrimination, especially if those comments are ambiguous.” Mitchell v. USBI Co.,
186 F.3d 1352, 1355 (11th Cir. 1999) (emphasis and alteration supplied).
Furthermore, another court within this Circuit has said that the display of a
confederate flag by a coworker is “not necessarily even related to race.” Gonzalez
v. Florida Department of Highway Safety, 237 F. Supp. 2d 1338, 1354-55 (S.D. Fla.
2002) (emphasis supplied). Thus, because Melinda England was not a decisionmaker, and the precise message that was intended to be conveyed by her car tag was
ambiguous, it does not constitute direct evidence of pretext.
With regard to the allegation that Manager of Patient Accounts David Davis
said “African-Americans . . . are always running late,” that comment was made five
months prior to plaintiff’s termination. Hence, it was not temporally related to the
decisions to suspend and, ultimately, terminate plaintiff. Although a comment
unrelated to a termination decision may contribute to a circumstantial case for pretext,
see Ross v. Rhodes Furniture, Inc., 146 F.3d 1286 (11th Cir. 1998), it will usually not
be sufficient, absent some additional evidence, to alone support a finding of pretext.
See Scott v. Suncoast Beverage Sales, Ltd., 295 F.3d 1223, 1229 (11th Cir. 2002);
Rojas v. Florida, 285 F.3d 1339, 1343 (11th Cir. 2002). Furthermore, plaintiff was
237

Doc. no. 26-16 (Declaration of Cheryl Lee) ¶ 4.

61

not disciplined, suspended, or terminated for tardiness.238 Accordingly, this court will
follow the rule that a comment unrelated to a basis for a termination decision is
“insufficient to create an inference of pretext when standing alone.” Beckles v.
Federal Express Corp., 489 F. App’x 380, 384 (11th Cir. 2012) (citing Scott, 295
F.3d at 1229-30; Rojas, 285 F.3d 1339, 1343).
2.

Circumstantial (‘indirect”) evidence of pretext

The following sections will address each of the four reasons cited by defendant
for plaintiff’s discipline, suspension, and termination. Before doing so, however, the
Eleventh Circuit’s admonitions in Chapman v. AI Transport, 229 F.3d 1012 (11th Cir.
2000), need to be reviewed.
A plaintiff is not allowed to recast an employer’s proffered
nondiscriminatory reasons or substitute his business judgment for that
of the employer. Provided that the proffered reason is one that might
motivate a reasonable employer, an employee must meet that reason
head on and rebut it, and the employee cannot succeed by simply
quarreling with the wisdom of that reason. See Alexander v. Fulton
County, Ga., 207 F.3d 1303, 1341 (11th Cir.2000) (Title VII case) (“It
is not the court’s role to second-guess the wisdom of an employer’s
decisions as long as the decisions are not racially motivated.”); Combs,
106 F.3d at 1541-43. We have recognized previously and we reiterate
today that:
federal courts “do not sit as a super-personnel department
that reexamines an entity’s business decisions. No matter
how medieval a firm’s practices, no matter how
238

See Section II(D)(2), supra (discussing defendant’s proffered reasons).

62

high-handed its decisional process, no matter how mistaken
the firm’s managers, the ADEA does not interfere. Rather
our inquiry is limited to whether the employer gave an
honest explanation of its behavior.”
Elrod v. Sears, Roebuck & Co., 939 F.2d 1466, 1470 (11th Cir.1991)
(quoting Mechnig v. Sears, Roebuck & Co., 864 F.2d 1359, 1365 (7th
Cir.1988) (citations omitted)); see also Nix v. WLCY Radio/Rahall
Communications, 738 F.2d 1181, 1187 (11th Cir.1984) (An “employer
may fire an employee for a good reason, a bad reason, a reason based
on erroneous facts, or for no reason at all, as long as its action is not for
a discriminatory reason.”); Abel v. Dubberly, 210 F.3d 1334, 1339 n. 5
(11th Cir.2000). We “do not … second-guess the business judgment of
employers.” Combs, 106 F.3d at 1543; accord Alexander, 207 F.3d at
1339, 1341; Damon v. Fleming Supermarkets of Florida, Inc., 196 F.3d
1354, 1361 (11th Cir.1999) (“We have repeatedly and emphatically held
that a defendant may terminate an employee for a good or bad reason
without violating federal law. We are not in the business of adjudging
whether employment decisions are prudent or fair.” (internal citation
omitted)).
Chapman, 229 F.3d at 1030 (footnote omitted) (emphasis supplied).
a.

Allegation that plaintiff failed to improve her productivity
while she was on a performance improvement plan

Plaintiff contends that her performance evaluations were either a “sham,” or
“incorrect” measures of her true achievements.239 She argues that pre-registration
clerks undermined her performance by failing to properly prepare her accounts for
processing.240 Nevertheless, she has offered no evidence to refute defendant’s

239

See doc. no. 47 (Brief in Response to Motion for Summary Judgment) at, e.g., 16-21.

240

See doc. no. 47 (Brief in Response to Motion for Summary Judgment) at, e.g., 16-21.

63

testimony that any problems with the quality of the pre-registration process would
have impacted all customer service representatives equally.241 Claims based “on
either unexplained or illogical inferences” are not evidence of pretext. Colley v.
Waste Management of Alabama, Inc., No. 99-1110-CB-S, 2001 WL 228058, *15
(S.D. Ala. Feb. 7, 2001).
Moreover, plaintiff has offered no evidence to rebut the testimony that her
productivity reports were either pulled directly from the automated computer system,
or prepared by Recita Flie, another African-American employee of defendant.242
More importantly, plaintiff has not refuted the evidence indicating that Central
Business Office Director Diane Myrick and Manager of Patient Accounts David
Davis honestly believed that plaintiff had failed to improve her productivity on the
basis of a comparison of plaintiff’s productivity reports with those of her coworkers.243 “With respect to the issue of job performance, the question is whether
[the decision-maker] had a good faith belief that plaintiff’s job performance was
subpar.” Alexander v. Baldwin County Board of Education, No. 07-0333-CB-C, 2008
241

Doc. no. 26-8 (Deposition of David Davis, Part II), at 292-94; doc. no. 26-12 (Deposition
of Melinda England), at 122-24, 137; doc. no. 26-14 (Declaration of David Davis) ¶ 13; doc. no. 2615 (Declaration of Diane Myrick) ¶ 6.
242

Doc. no. 26-5 (Performance Evaluation), at 1, 4; doc. no. 26-8 (Deposition of David
Davis, Part II), at 235; doc. no. 26-14 (Declaration of David Davis) ¶ 11.
243

Doc. no. 26-8 (Deposition of David Davis, Part II), at 148-52; doc. no. 26-10 (Deposition
of Diane Myrick), at 176-77; doc. no. 26-14 (Declaration of David Davis) ¶¶ 10-24; doc. no. 26-15
(Declaration of Diane Myrick) ¶ 10.

64

WL 3551194, * 17 (S.D. Ala. Aug. 12, 2008) (emphasis and alteration supplied)
(citing Equal Employment Opportunity Commission v. Total System Services, Inc.,
221 F.3d 1171, 1176-77 (11th Cir. 2000)).
Thus, plaintiff has not established that defendant’s first reason was a pretext
for racial discrimination.
b.

Allegation that plaintiff discussed the patient account of a
coworker’s husband in a departmental staff meeting and
subsequent e-mail

Plaintiff admits to discussing the patient account of a coworker’s husband on
two occasions: first, as her coworkers “were going out of the room” at the end of a
departmental staff meeting;244 and, subsequently, in an e-mail transmitted to twelve
other employees.245 Plaintiff has offered no evidence to rebut the evidence indicating
that Diane Myrick and David Davis honestly believed that plaintiff violated the
privacy requirements of the Health Insurance Portability and Accountability Act of
1996.246 Likewise, plaintiff has not rebutted the evidence indicating that Myrick and
Davis honestly believed that plaintiff “embarrassed [a co-worker] in front of her

244

Doc. no. 26-2 (Deposition of Sheryl Leggs Hamilton, Part II), at 297, 324.

245

Doc. no. 26-2 (Deposition of Sheryl Leggs Hamilton, Part II), at 301-07; see also doc. no.
26-5 (Hamilton E-Mail), at 18-19.
246

Doc. no. 26-8 (Deposition of David Davis, Part II), at 166; see also id. at 154-71, 175-77,
189, 199-202; doc. no. 26-10 (Deposition of Diane Myrick), at 264-65, 276-278, 281, 287-91.

65

fellow employees.”247 Therefore, plaintiff has not established that defendant’s second
reason was a pretext for racial discrimination.
c.

Allegation that plaintiff hung up on a patient

Plaintiff denies that she hung up on a patient in the middle of a telephone
conversation.248 Even so, plaintiff has not rebutted the testimony that David Davis
formed the honest belief that plaintiff had done so based upon his review of the
computer records for the patient’s account, and determination that plaintiff was the
only customer service representative who spoke to the patient on that day.249 Thus,
plaintiff has not shown that defendant’s third reason was a pretext for discrimination.
d.

Allegation that plaintiff misquoted the amount of a patient’s
debt

Plaintiff denies that she misquoted the amount of a patient’s debt in response
to an inquiry.250 Nevertheless, plaintiff has not refuted the testimony that David
Davis honestly believed that plaintiff had done so based upon his review of the
computer records for the patient’s account, and determination that plaintiff had failed

247

Doc. no. 26-8 (Deposition of David Davis, Part II), at 172 (alteration supplied); see also
id. at 166-67, 172-73; doc. no. 26-14 (Declaration of David Davis) ¶ 17; doc. no. 26-15 (Declaration
of Diane Myrick) ¶ 8.
248

See doc. no. 47 (Brief in Response to Motion for Summary Judgment) at, e.g., 22-24, 27.

249

Id.

250

See doc. no. 47 (Brief in Response to Motion for Summary Judgment) at, e.g., 22-24, 27.

66

to verify the mistaken quote of the account balance before giving it to the patient.251
Instead, plaintiff argues that white “casual” employee Lindsey Gardner misquoted the
amount of another patient’s debt, but was not disciplined.252
At the summary judgment stage, an employer’s assertion that an employee was
fired for violating a “‘work rule’. . . is arguably pretextual when [the employee]
submits evidence (1) that [he or] she did not violate the cited work rule, or (2) that if
[he or] she did violate the rule, other employees outside the protected class, who
engaged in similar acts, were not similarly treated.” Jordan v. Warehouse Services,
81 F. Supp. 2d 1257, 1271 (M.D. Ala. 2000) (alterations in original) (quoting Damon
v. Fleming Supermarkets of Florida, Inc., 196 F.3d 1354, 1363 (11th Cir. 1999)).
Under the second prong of the Jordan test, a plaintiff can avoid summary
judgment by proving that if “she did violate the rule, other employees outside the
protected class, who engaged in similar acts, were not similarly treated.” Jordan, 81
F. Supp. 2d at 1271.
When a claim alleges discriminatory discipline, to determine whether
employees are similarly situated, we evaluate “whether the employees
are involved in or accused of the same or similar conduct and are
disciplined in different ways.” Maniccia v. Brown, 171 F.3d 1364, 1368
(11th Cir. 1999) (citations and quotation marks omitted). When making
that determination, “we require that the quantity and quality of the
251

Doc. no. 26-8 (Deposition of David Davis, Part II), at 318-24.

252

Doc. no. 26-2 (Deposition of Sheryl Leggs Hamilton, Part II), at 400-05.

67

comparator’s misconduct be nearly identical to prevent courts from
second-guessing employers’ reasonable decisions and confusing apples
with oranges.” Id. (citation omitted); see also Nix v. WLCY
Radio/Rahall Commc’ns, 738 F.2d 1181, 1185 (11th Cir. 1984)
(requiring a plaintiff bringing a discriminatory discipline claim to show
“that the misconduct for which he was discharged was nearly identical
to that engaged in by an employee outside the protected class whom the
employer retained”) (citations, quotation marks, and alterations omitted).
Burke-Fowler v. Orange County, 447 F.3d 1319, 1323 (11th Cir. 2006).
Plaintiff has not established that she was subjected to discriminatory discipline
because the gravity of plaintiff’s misconduct far exceeds Lindsey Gardner’s in
“quantity and quality.” The record is devoid of evidence that Gardner (or, for that
matter, any other employee): failed to improve her productivity while she was on a
performance improvement plan; and discussed the patient account of a coworker’s
husband in a departmental staff meeting and subsequent e-mail using the coworker
and her husband’s names; and hung up on a patient in the middle of a conversation;
and misquoted a patient’s debt by more than $9,000. Thus, plaintiff has not shown
that defendant’s final reason was a pretext for discrimination.
VI. PLAINTIFF’S DISCRIMINATION CLAIM FOR ANY EVENTS
OTHER THAN HER DISCIPLINE, SUSPENSION, AND TERMINATION
The parties recount a variety of other events that arguably constitute evidence
of discrimination, including, e.g.: plaintiff’s 2007 reprimand for working an elevenand-a-half-hour day on the Tuesday preceding the Thanksgiving holiday; her 2007
68

reprimand for improper collection practices; her 2009 discipline for sending an
itemized bill to the wrong patient; and her 2010 discipline for reading a novel at
work. Those incidents do not establish discrimination for multiple reasons. First, the
incidents do not constitute “adverse employment actions.” Title VII prohibits
employment discrimination
with respect to an employee’s “compensation, terms, conditions, or
privileges of employment.” See Davis v. Town of Lake Park, Fla., 245
F.3d 1232, 1238 (11th Cir. 2001) (quoting 42 U.S.C. § 2000e-2(a)).
Courts have uniformly read this language to require a plaintiff to
establish, as part of his prima facie case, that he suffered an “adverse
employment action.” See id. However, “not all conduct by an employer
negatively affecting an employee constitutes adverse employment
action.” Id. In Davis, [the Eleventh Circuit] described an adverse
employment action as follows:
[I]t is clear that to support a claim under Title VII's
anti-discrimination clause the employer’s action must
impact the ‘terms, conditions, or privileges’ of the
plaintiff’s job in a real and demonstrable way. Although
the statute does not require proof of direct economic
consequences in all cases, the asserted impact cannot be
speculative and must at least have a tangible adverse effect
on the plaintiff’s employment . . . . [T]herefore, . . . to
prove adverse employment action in a case under Title
VII’s anti-discrimination clause, an employee must show
a serious and material change in the terms, conditions, or
privileges of employment. Moreover, the employee’s
subjective view of the significance and adversity of the
employer’s action is not controlling; the employment
action must be materially adverse as viewed by a
reasonable person in the circumstances.

69

Id. at 1239. Criticisms, negative evaluations, and temporary and
non-substantial changes in work assignments are not actions that have
a “serious and material effect” on the terms and conditions of
employment. See id. at 1241-44.
White v. Hall, 389 F. App’x 956, 960 (11th Cir. 2010) (emphasis and first alterations
supplied) (remaining alterations in original).
Second, plaintiff has abandoned her claims for incidents that occurred in 2007.
Plaintiff objects to evidence regarding her 2007 reprimands for working an elevenand-a-half-hour day on the Tuesday preceding the Thanksgiving holiday, and for
improper collection practices, on the grounds that such evidence “is immaterial,
irrelevant, and had nothing to do with” defendant’s reasons for suspending plaintiff
on May 21, 2010, and firing her on May 27, 2010, two and a half years later.253
With regard to plaintiff’s 2009 discipline for sending an itemized bill to the
wrong patient, plaintiff alleges that “casual” employee Gayle Burgess (who is white)
and Customer Service Representative Carlette Robinson (who is African-American)
were not disciplined for making the same mistake.254 Neither employee constitutes
a proper comparator for two reasons. First, Robinson, like plaintiff, is a member of
the protected class of African-Americans. See, e.g., Jordan, 81 F. Supp. 2d at 1271
253

Doc. no. 47 (Brief in Support of Response to Summary Judgment) at 9, 11 (alterations

supplied).
254

Doc. no. 26-2 (Deposition of Sheryl Leggs Hamilton, Part II), at 352-54, 357-59, 363, 407-

08.

70

(The test is whether “other employees outside the protected class, who engaged in
similar acts, were not similarly treated.”) (emphasis supplied). Second, plaintiff has
neither alleged nor offered evidence that defendant was aware of Burgess and
Robinson’s behavior. See, e.g., Vickers v. Federal Express Corp., 132 F. Supp. 2d
1371, 1380 (S.D. Fla. 2000) (“Disparate discipline cannot be shown without first
showing that the employer was aware of the comparator’s misconduct.”) (emphasis
supplied).
Further, with regard to plaintiff’s 2010 discipline for reading a novel at work,
plaintiff asserts that Manager of Patient Accounts David Davis witnessed a white
“casual” employee whose first name is “Baylee” (and whose last name plaintiff does
not know) reading a magazine at work, and that “Baylee” was not reprimanded.255
“Baylee” does not qualify as a comparator, because plaintiff does not allege that
“Baylee” also failed to improve her productivity and failed to service an account
while she was on a performance improvement plan. Plaintiff admits that she has not
seen “Baylee’s” personnel file, and was not present for the reprimands of other
employees.256 Plaintiff’s belief that “Baylee” was not disciplined is “based on
speculation and conjecture” and, thus, “is not reasonable.” Blackston v. Shook &

255

Id. at 286, 270-73; doc. no. 26-14 (Declaration of David Davis) ¶¶ 14-15.

256

Doc. no. 26-2 (Deposition of Sheryl Leggs Hamilton, Part II), at 227-29, 273.

71

Fletcher Insulation Co., 764 F.2d 1480, 1482 (11th Cir. 1985). Finally, with regard
to defendant’s rejection of plaintiff’s application for a promotion to the
“non-Medicare revenue integrity specialist” position in August of 2009, plaintiff
alleges that defendant selected white employee Melissa Baskins to fill the position
on the basis of race.257 However, plaintiff has not alleged a failure to promote claim,
and she does not deny: that she submitted her application after the deadline; that she
did not see when her application was received by the Human Resources department;
and that both she and a white employee, Belynn “Ann” Heathcoat, received letters
stating that their applications had been received after the position had been filled.258
Instead, plaintiff argues that defendant’s racism lies in the fact that “[Melissa]
Baskins, who is white and who did not timely bid on the job, was given the job
instead of [Tammy] Simmons, who is black and who [did] timely bid on the job.”259
Even when offered to show pretext rather than a prima facie case,
“me, too” evidence is suspect. To be probative, the other incidents must
implicate a common decisionmaker. Goldsmith v. Bagby Elevator Co.,
513 F.3d 1261, 1286 (11th Cir. 2008). “More generally, courts are
reluctant to consider ‘prior bad acts’ in this [employment discrimination]
257

Doc. no. 47 (Brief in Support of Response to Motion for Summary Judgment), at 11.

258

Doc. no. 26-1 (Deposition of Sheryl Leggs Hamilton, Part I), at 195-201, 204, 212-17;
doc. no. 26-2 (Deposition of Sheryl Leggs Hamilton, Part II), at 202-08; doc. no. 26-4 (E-Mail
Chain), at 104; doc. no. 26-14 (Declaration of David Davis) ¶ 8; doc. no. 26-15 (Declaration of
Diane Myrick) ¶ 5.
259

Doc. no. 47 (Brief in Support of Response to Motion for Summary Judgment), at 11
(alterations and emphasis supplied).

72

context where those acts do not relate directly to the plaintiffs.” Denney
v. City of Albany, 247 F.3d 1172, 1189 (11th Cir. 2001). When the
evidence involves a kind of alleged discrimination different from that
alleged by the plaintiff, “the evidence [may be] likely to confuse the
issues for the jury and unfairly prejudice the defendants.” Lewis v.
Department of Transportation, 187 Fed. Appx. 961, 961-62 (11th Cir.
2006) (upholding the exclusion of prior instances of discrimination
against others, in part because the plaintiff claimed failure to promote,
not retaliation or hostile work environment); accord Chavis v. Clayton
County School District, 147 Fed. Appx. 865, 866-68 (11th Cir. 2005)
(upholding the exclusion of other instances of discrimination against
others, because the plaintiff claimed retaliation and the other instances
involved failure to promote).
Bell v. Crowne Management, LLC, 844 F. Supp. 2d 1222, 1236 (S.D. Ala. 2012)
(alterations in original) (emphasis supplied).
VII. CONCLUSION AND ORDERS
In sum, none of the events raised in plaintiff’s complaint or recounted by the
parties in their briefs are sufficient to support plaintiff’s claims of discrimination.
Therefore, and for the reasons discussed in this opinion, defendant’s motion to strike
is GRANTED in part and DENIED in part, defendant’s motion for summary
judgment is GRANTED, and all of plaintiff’s claims are DISMISSED with prejudice.
Costs are taxed to plaintiff. The Clerk is directed to close this file.
DONE and ORDERED this 6th day of June, 2013.

______________________________
United States District Judge
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