Rounds v. Southern Heritage Health and Rehabilitation LLC

Filing 76

ORDER granting 45 Motion for Summary Judgment except on one claim. Rounds's FMLA-entitlement claim about denied leave to care for her mother in June 2011 is for the jury on the record presented. Southern Heritage is entitled to Judgment as a matter of law on all other claims. Signed by Judge D. P. Marshall Jr. on 11/14/2014. (jak)

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IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
PINE BLUFF DIVISION
PLAINTIFF

LOUISE ROUNDS

v.

No. 5:12-cv-276-DPM

SOUTHERN HERITAGE HEALTH AND
REHABILITATION, LLC

DEFENDANT

ORDER
1. Background. Louise Rounds worked as a certified nursing assistant
for Southern Heritage, a rehabilitation hospital, for several years. In October
2011, a co-worker made a cell-phone video of Rounds sitting in a patient's
room under a blanketwithher legs elevated. The director of nursing, Tremica
Lane, concluded that Rounds was sleeping on the job. Lane decided Rounds
should be fired. The facility administrator, Debbie Thornton, approved that
decision and Lane ended Rounds's employment. Rounds and Lane are
African-American; Thornton is Caucasian. Rounds was fifty-four at the time.
She says her disability- degenerative knee disease- required her to take
breaks with her legs up; Southern Heritage knew about and accommodated
this need; she was monitoring a patient; and she wasn't sleeping. She alleges
that Southern Heritage fired her because of her race, her age, and her

disability. Rounds also alleges that Southern Heritage violated the Family
Medical Leave Act by denying her leave to take care of her mother and for
knee surgery. Finally, Rounds alleges that Southern Heritage retaliated
against her for making many FMLA/vacation time requests, complaining
about health insurance that lapsed during leave, making an EEOC claim, and
filing a grievance with the local United Food and Commercial Workers Union.
Southern Heritage moves for summary judgment on all claims. The Court
will develop the material facts- taking them in Rounds's favor where
disputed-on each group of claims. Torgerson v. City of Rochester, 643 F.3d
1031, 1042 (8th Cir. 2011) (en bane).
2. Race Claims. Rounds alleges racial discrimination under Title VII,
the Arkansas Civil Rights Act, and 42 U.S.C. § 1981.
Rounds filed two EEOC charges. Neither alleged race discrimination.
NQ 45-4.

Rounds's Title VII race claim therefore fails because she didn't

exhaust her administrative remedies.
Rounds had one year to make an employment-discrimination claim
under the Arkansas Civil Rights Act. Ark. Code Ann.§ 16-123-107(c)(3). She
was fired in October 2011. She didn't allege race discrimination until more

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than two years later, when she moved to amend her complaint. NQ 18. Her
ACRA race claim is time barred.
The Court assumes Rounds has made a prima facie case on her § 1981
claim. Harris v. Hays,452 F.3d 714,717-18 (8th Cir. 2006). Southern Heritage
has

provided

a

legitimate non-discriminatory

Rounds- sleeping on the job.

reason for

firing

The question is whether a jury could

reasonably conclude that the hospital's reason was a pretext for race
discrimination. Ridoutv. JBS USA, LLC, 716 F.3d 1079,1083-87 (8th Cir. 2013).
Southern Heritage's handbook lists sleeping on the job as a category I
policy violation, which subjects an employee to immediate termination. NQ 453 at 1. According to one employee, lots of folks slept on the job, but, around
the time Rounds was fired, the hospital started cracking down. NQ 55-14 at
15-16, 47-48. Rounds participated in an inservice training less than two

weeks before her firing that hit this point: "If you are found sleeping on the
job, this is termination-no warnings will be given." Ng 59-1. LPN Lila
Williams used her cell phone to record Rounds in a blind patient's room,
sitting with her legs up and covered with a blanket. Though this fact is
disputed, the Court assumes the light was on when Williams first entered the

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room, because that was Rounds's testimony. NQ 55-1 (Part I) at 70. Williams
turned the light out, which prompted Rounds to say uLila, cut the light back
on." Ibid. Williams returned with a co-worker and a cell phone, and shot the
video. Williams called Thornton that night and sent her the video. NQ 55-4 at
35. Thornton told Williams to call the Union representative, send Rounds

home, and have Rounds meet with Lane the next day. NQ 55-4 at 32-33. Lane
watched the video. After an investigation, Lane decided to fire Rounds; and
Thornton, the facility administrator, gave her a green light. NQ 55-4 at 34.
In response to the hospital's business reason, Rounds points to two
Caucasian employees who slept on the job but weren't fired.

These

individuals must be similarly situated in all relevant respects to be valid
comparators. Ridout, 716 F.3d at 1085. One co-worker, Chris, had different
supervisors. NQ 55-14 at 59. So he drops out. The other co-worker, LPN
Williams- the one who reported Rounds- is a closer question.
Williams helped present the October inservice, which warned that
sleeping at work would result in termination. NQ 59-1. There's a photograph
of Williams sleeping on the job. It was posted for a while at a nurse's station
where Lane or Thornton could have seen it. It's unclear when the photo was

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taken; it's also unclear whether Williams was on or off the clock. NQ 55-16 at
30-31. While they were working together, Williams told Rounds (and other

CNAs) that she (Williams) would be down the hall sleeping if they needed
her and that management knew about and approved her sleeping. NQ 55-1
(Part II) at 41. In her exit interview, Rounds asked Lane why Williams wasn't

going to be fired too- Rounds says it was common knowledge that Williams
slept on the job. NQ 55-1 (Part II) at 41-44. Lane told Rounds to mind her own
business. Lane had disciplined Williams for non-category I offenses, but it
was another supervisor who didn't fire Williams for a category I offense
involving patient medication. NQ 55-19,55-20, 55-21, 55-22, 55-22A, & 55-23.
Williams is an LPN, while Rounds is a CNA. But they both worked for Lane,
and ultimately Thornton. And both were formally subject to the no-sleeping
rule.

Giving Rounds the benefit of the disputed facts and reasonable

inferences in this murky record, the Court concludes that Williams is a valid
comparator.
Rounds, however, has failed to create a jury question on pretext.
Southern Heritage had a video of what appeared to be a serious rule violation.
Section 1981 doesn't require employers to make correct decisions, wise

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decisions, or fair decisions. Hill v. St. Louis University, 123 F.3d 1114, 1120 (8th
Cir. 1997). It forbids contract-related decisions based on race. During the
EEOC process, Rounds said that race wasn't a factor in Southern Heritage's
decision. NQ 55-1 (Part II) at 52. Lane, the primary decision maker, is AfricanAmerican too. When asked on deposition about racial discrimination by
Lane, Rounds replied "I can't say one way or the other." NQ 55-1 (Part II) at 32.
This remark was candid and accurate- the Court doesn't see any evidence
that Lane harbored racial animus in general or against Rounds in particular.
Rounds ,,believe[s]" that Thornton's approval of her firing was race
based- because Rounds believes Thornton saw the pictures, knew Williams
was sleeping on the job too, but didn't fire her. NQ 55-1 (Part II) at 32-33. A
person's belief about what happened, though, doesn't create a jury question
unless it rests on evidence or reasonable inferences from evidence. Davis v.

Jefferson Hospital Association, 685 F.3d 675, 681-684 (8th Cir. 2012).
Rounds gave specifics about LPN Williams's picking at her, and other
African-American CNAs, and testified that Williams's actions were motivated
partly by workplace disputes and partly by race. E.g., NQ 55-1 (Part I) at 39-40,

42-48, 55, 79-80 & NQ 55-1 (Part II) at 30. But Rounds doesn't argue that

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Williams, prompted by racial bias, duped an innocent Lane and Thornton into
the firing; Rounds argues instead that Lane and Thornton acted with actual
racially discriminatory intent. So a cats-paw theory isn't in play. Compare Diaz

v. Tyson Fresh Meats, Inc., 643 F.3d 1149, 1151-52 (8th Cir. 2011).
Taking as truth that Williams slept on the job and got a pass, there is
simply insufficient evidence that race motivated Southern Heritage treating
Rounds differently. Rounds's racial discrimination claim therefore fails as a
matter of law for want of sufficient causation evidence.
3. Age Claims.

Under the ADEA, Rounds ''must show that age

discrimination was a 'but for' cause of [her] termination." Ridout, 716 F.3d at
1083 (quotation omitted). She was fifty-four. She says LPN Williams picked
at her and gave her an increased workload- additional patients- three or
four times in one year. NQ 55-1 (Part I) at 59. A co-worker corroborated this.
NQ 55-17 at 1. Stracy Jackson, a younger CNA, was called in temporarily to

replace Rounds. NQ 55-16 at 17. Finally, Rounds relies on an incendiary
remark supposedly made by Lane on the night of the firing: "[Rounds] needs
to have her old self at home because she was of no use to the nursing home
because of her knees." NQ 55-17 at 1.

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There's no jury issue on age discrimination. First, the old-self remark
is inadmissible. Lane's words, as Rounds argues, would be an admissible
party statement. FED. R. EVID. 801(d)(2). But the person who supposedly
heard those words, and supposedly repeated them to another co-worker,
testified on deposition that Lane didn't say anything about Rounds needing
to be at home. N!! 55-14 at 42. Rounds can't overcome the second-layer
hearsay problem: her co-worker Davis can't testify to what her co-worker
McNealey supposedly said Lane said. N!! 55-17 at 1. Second, while being
replaced by a younger worker weighs in the balance for age discrimination,
it's not dispositive. Haigh v. Gelita USA, Inc., 632F.3d 464,468 (8th Cir. 2011).
Third, in her deposition, Rounds said that the workload increase resulted
from workplace friction between her and Williams, motivated partly by
Williams's racial bias-not by age bias. N2 55-1 (Part I) at42-48, 55-59; NQ 5527. Even with the benefit of all reasonable inferences, without the incendiary
statement by Lane, Rounds has failed to offer sufficient evidence that age was
the determining factor in her firing. Gross v. FBL Financial Services, Inc., 557
U.S. 167, 176 (2009). This record is just too thin to support a verdict on age
discrimination. Johnson v. Securitas Security Services USA, Inc., 769 F.3d 605,

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613 (8th Cir. 2014) (en bane).
4. Disability Claims. It's common ground that Rounds's disabilitydiscrimination claims under the Americans with Disabilities Act and the
Arkansas Civil Rights Act are analyzed the same way, using the familiar
burden shifting/pretext rubric. Duty v. Norton-Alcoa Proppants, 293 F.3d 481,
490 (8th Cir. 2002). Rounds's ACRA claim for disability discrimination is
timely and exhausted because, unlike her race claim, she charged disability
discrimination at the EEOC and asserted the claim here within the limitations
period. The fighting issue is pretext-more specifically whether Rounds has
offered sufficient evidence that her disability motivated Southern Heritage to
fire her. Pulczinski v. Trinity Structural Towers, Inc., 691 F.3d 996, 1002-04 (8th
Cir. 2012). Southern Heritage puts the point in two words: no causation.
Here's the relevant record at this point. Rounds was a qualified
individual with a disability. Southern Heritage accommodated her disability.
She was allowed to take breaks and elevate her legs. NQ 55 at 4. Her firing
occurred in the context of the accommodation. During her exit interview,
Rounds explained what happened to Lane: she was in a chair in a blind
patient's room; a co-worker had told her that the patient needed extra

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attention to keep her from falling out of bed; Rounds's legs and feet were
swollen from standing and walking at work; so she elevated them in the chair.
NQ 55-1 (Part I) at 74. Rounds denied being asleep. NQ 55-1 (Part I) at 70. The

room light was on when LPN Williams came in; she turned it off when she
left to get her co-worker and the cell phone to shoot the video. Ibid. There's
no evidence that Rounds told Lane about Williams turning off the light, but
the Court accepts her side of things as true at this point.
But Southern Heritage fired Rounds for being asleep, not for taking the
break. The video showed her in a patient's dark room in a chair under a
blanket. (Neither side has put the video of record.) The hospital may have
been mistaken about what actually happened. LPN Williams may have made
things look bad by turning off the light before the video was made. Rounds's
Union steward co-worker, for example, watched the video and concluded
Rounds wasn't asleep. Ng 55-14 at 27-28. But an employer's good faith belief
that an important rule has been broken, even if mistaken, suffices. Pulczinski,
691 F.3d at 1003-04.
Lane's purported statements do not get this claim to the jury. Again,
Lane's statement to McNealey doesn't come in; McNealey didn't confirm it,

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and Davis's report of what McNealey said is inadmissible hearsay (not within
any exception) offered for its truth. FED. R. EVID. 801(c). Second, Rounds's
belated effort to bring in another purported Lane statement comes up short.
In a post-deposition affidavit filed in response to Southern Heritage's motion
for summary judgment, Rounds affirmed that "Lane stated to me that I
needed to be at home if I was sick ...." NQ 45-7. A reasonable juror could hear
this as Lane expressing exasperation with accommodating Rounds's
disability. (The statement likewise could be heard as a benign expression, but
the Court is giving Rounds the benefit of all reasonable inferences.)
This new statement, though, is inadmissible because of its unexplained
tardiness. Marathon Ashland Petroleum, LLC v. International Brotherhood of
Teamsters, 300 F.3d 945, 951 (8th Cir. 2002). The statement was not revealed

to the EEOC or in written discovery. Rounds was deposed at length on two
occasions. The termination meeting was covered. N2 55-1 at (Part I) 77-78 &

N2 55-1 (Part II) at 53-54, 115-119. Rounds's affidavit about Lane's sickness
statementdoesn'tcontradictherdeposition testimony, which would make the
issue plainer. E.g., American Airlines, Inc. v. KLM Royal Dutch Airlines, Inc., 114
F.3d 108, 111 (8th Cir. 1997). And to her credit, Rounds's counsel offered to

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make Rounds available for yet another deposition about the affidavit. What's
missing, however, is any explanation of why the sickness statement is so late
in coming out.

The other person present, Union steward/ co-worker

McNealey, testified that Lane made no such statement. Nf! 55-14 at 42. All
material things considered, the Court concludes that the purported sickness
statement should not be weighed in the balance. There has to be a stopping
point for the evidence or the issues for trial could never be focused by
summary judgment. American Airlines, Inc., 114 F.3d at 111.
Rounds's ADA claim fails for lack of evidence that her disability
motivated Southern Heritage's decision. The hospital has shown that Lane
believed Rounds was sleeping.

A jury could reasonably conclude,

considering all the circumstances, that Lane was wrong. But Rounds has not
offered sufficient evidence, or created sufficient reasonable inferences,
that-in truth-Rounds's disability motivated Lane's decision. uThis is not
a case where the record in support of the employer's conclusion is ... so
sparse, or the employer's conclusion so implausible, that ... " a material fact
issue exists about Southern Heritage's intent. Pulczinski, 691 F.3d at 1004; see
also E.E.O.C. v. Product Fabricators, Inc., 763 F.3d 963, 969 (8th Cir. 2014).

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5. FMLA Claims. Rounds asserts four FMLA violations.

First, Rounds makes an entitlement claim: she was a qualified employee
who was denied leave. Pulczinski, 691 F.3d at 1005. Rounds was her mother's
legal guardian and primary caregiver. N2 55 at 7 & 55-1 (Part I) at 31. She says
that, about four months before her termination, she was denied leave to take
care of her mother, who was in a long-term care facility in Louisiana. N2 55 at

7-8. Rounds says that Lane denied the leave because Southern Heritage was
short-staffed. N2 55-1 (Part II) at 108. Instead, Southern Heritage allowed
Rounds to start her shift late- so she could care for her mother in Louisiana,
until she was relieved by another family member, and then drive back to
Southern Heritage's facility in McGehee, Arkansas. N2 55 at 8.
Rounds's entitlement claim is for the jury. Under the FMLA, employees
are entitled to twelve weeks of leave during a year to, among other things,
care for a parent who is seriously ill. 29 U.S.C. § 2612(a)(l)(C). Rounds's
mother was seriously ill in a nursing home. Rounds requested leave in June
of 2011, was denied leave, and her mother died less than two months later.
Whether Rounds requested FMLA leave or vacation time makes no legal
difference because it was Southern Heritage's responsibility to designate

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qualifying absences as FMLA leave. Ragsdale v. Wolverine World Wide, Inc., 535
U.S. 81, 87 (2002). Southern Heritage's knowledge about the leave's covered
purpose seems established, or at least a jury question is presented, because
the hospital adjusted Rounds's start time in recognition of her traveling from
Louisiana. Browning v. Liberty Mutual Insurance Co., 178 F.3d 1043, 1049 (8th
Cir.), cert. denied, 528 U.S. 1050 (1999). Construing the disputed facts in
Rounds's favor, a reasonable jury could conclude that Southern Heritage
denied her rights under the FMLA in June 2011. Quinn v. St. Louis County, 653
F.3d 745, 753 (8th Cir. 2011).
Second, Rounds makes a retaliation claim.

She took three days'

vacation time in July 2011-roughly a month after she requested leave and
three months before she was fired-to take care of her mother. NQ 55 at 8. In
her absence, the open enrollment period for her health insurance occurred
and she missed the deadline. This caused her to go without health insurance
for about two months and incur some medical bills. NQ 55-1 (Part II) at 70,
96-97. Rounds complained about this lapse in coverage to Thornton, the
facility administrator. She had missed the deadline too. Thornton got the
insurance reinstated for herself and Rounds two months later. NQ 55-1 (Part

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II) at 70-72.

Rounds was fired about a month after her insurance was

reinstated, and about three months after she complained about the lapse.
An FMLA retaliation claim arises when an employee opposes action
that offends the statute and suffers because of her opposition. Pulczinski, 691
F.3d at 1006. Assuming that Rounds's complaint about the lapse suffices as
opposition, her retaliation claim fails nonetheless as a matter of law. After
Rounds complained, Thornton solved the problem- one she shared. NQ 55-1
(Part II) at 72. Rounds seems to rely here solely on timing. But" after the fact,

therefore because of the fact" is a fallacy in law as well as logic. More
evidence of a causal connection must exist. There's simply no evidence, other
than timing, that the insurance lapse/ complaint/ reinstatement had anything
to do with Rounds losing her job. Smith v. Allen Health Systems, Inc., 302 F.3d
827, 833-34 (8th Cir. 2002). The timing, moreover, is not so close that an
inference of discrimination arises. Withers v. Johnson, 763 F.3d 998, 1005 (8th
Cir. 2014).
Rounds's third FMLA claim asserts discrimination. Three days before
her firing, Rounds requested two weeks' vacation during the following
month. NQ 55-9. She says this time off was for knee surgery, though it hadn't

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been scheduled yet. NQ 55-1 (Part II) at 59-60. Rounds's request gave Southern
Heritage no details about why she needed leave. Ibid; Ng 55-9. She's offered
no evidence that Lane or Thornton knew about her knee-surgery plan.
Rounds lost her job before Southern Heritage acted on this request. This
claim fails for lack of adequate notice. Unlike with the time requested off to
care for her mother, Rounds didn't provide enough formal or informal notice
about the "why" to trigger the FMLA. Brmvning, 178 F.3d at 1049. Southern
Heritage cannot have discriminated against her for pursuing FMLA rights in
the absence of evidence that the hospital knew, or should have known, that
Rounds might be entitled to FMLA-protected leave.
Last, Rounds makes a global FMLA discrimination claim: Southern
Heritage fired her for requesting and using leave throughout the course of her
employment. NQ 26 at 4-5. Rounds had a history of leave for her own health
conditions and her mother's. Her firing was three days after her last leave
request. Marezv. Saint-Gobain Containers, Inc., 688 F.3d 958,963 (8th Cir. 2012).
The Court assumes that she's made the modest showing required for a prima

facie case of FMLA discrimination. Pulczinski, 691 F.3d at 1007. She has failed,
however, to create a jury question on pretext. Southern Heritage fired Rounds

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----------------------------------------~

for being asleep. As noted on the§ 1981 claim, Southern Heritage had a
legitimate (even if mistaken) business reason. Rounds's proof of FMLAprompted discrimination is marginal. Her last leave request wasn't specific
enough to implicate the statute. Her June 2011 request, coupled with what
Southern Heritage knew about her ill mother did; but the several-month gap
between that request and her firing dilutes its evidentiary weight here. Smith,
302 F.3d at 833-34. Giving Rounds the benefit of the entire record, a jury
could not reasonably conclude that her leave history caused Southern
Heritage, in whole or in part, to fire her. Pulczinski, 691 F.3d at 1007. Rounds's
global claim of FMLA discrimination fails as a matter of law for lack of
evidence.
6. Remaining Retaliation Claim. Rounds makes another catch-all
retaliation claim. The Court's earlier analysis applies to issues that overlap
with other claims, such as FMLA retaliation. There are two new points:
alleged retaliation based on (1) Rounds's 2010 EEOC claim for wage and age
discrimination, Ng 45-4 at 1, and (2) her Union grievance about an increased
workload, NQ 55-2 7, which she filed three days before being fired. There's just
no evidence that either of these filings had anything to do with her 2011 firing.

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As a matter of Title VII, the EEOC claim is too stale to support a retaliation
claim. Marez, 688 F.3d at 963. And while it's not clear exactly what law
governs on the Union-grievance issue, any claim fails for lack of sufficient
evidentiary support.

***
Southern Heritage's motion for summary judgment, Ng 45, is granted
except on one claim. Rounds's FMLA-entitlement claim about denied leave
to care for her mother in June 2011 is for the jury on the record presented.
Southern Heritage is entitled to judgment as a matter of law on all other
claims.
So Ordered.

D.P. Marshall J{
United States District Judge

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