JEST v. Archbold Medical Center Inc
Filing
41
ORDER granting 18 Motion for Summary Judgment. Ordered by Judge Hugh Lawson on 2/8/2013. (nbp)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
VALDOSTA DIVISION
ANGELA JEST,
Plaintiff,
v.
Civil Action No. 7:11-cv-161 (HL)
ARCHBOLD MEDICAL CENTER, INC.,
Defendant.
ORDER
Before
the
Court
is
Defendant
Archbold
Medical
Center,
Inc.’s
(“Defendant”) Motion for Summary Judgment (Doc. 19). For the reasons stated
below, the Motion is granted.
I.
FACTUAL BACKGROUND
Plaintiff Angela Jest is an African-American female who was diagnosed
with neuropathy in August 2004. (Defendant’s Statement of Material Facts
(“DSMF”)1 ¶¶ 1, 2, 48.) Defendant Archbold is a corporation that operates
hospitals in various locations in south Georgia, including Thomasville (John D.
Archbold Memorial Hospital) and Cairo (Grady General Hospital). (DSMF ¶ 3.)
Plaintiff was employed by Defendant for a period of approximately
seventeen years, spanning from December 1993 until March 2010. (DSMF ¶ 4.)
1
All citations to the Defendant’s Statement of Material Facts refer to facts which
have been admitted by Plaintiff unless otherwise explicitly stated.
Plaintiff started her work with Defendant in 1993 as a Licensed Practical Nurse
(L.P.N.) at Grady General Hospital in Cairo, where she worked in labor and
delivery and took care of patients, provided nursing care, and worked as an
L.P.N. charge nurse. (DSMF ¶ 10, 11.) In 1996, she became a Registered Nurse
(R.N.) and worked in the medical-surgery unit at Grady General. (DSMF ¶ 13.) In
August 1999, Plaintiff requested work at Archbold Memorial Hospital in
Thomasville, Georgia as a “float R.N.” (DSMF ¶ 14.) Plaintiff’s request was
granted. In October 2000, Plaintiff made another transfer request for a part-time
position in IV therapy at Archbold Hospital. (DSMF ¶ 15.) This request was
granted. In 2001, Plaintiff began work as a medical-surgical “float R.N.” at
Archbold Hospital. (DSMF ¶ 16.) She was transferred to the Mother/Baby
(“MOBA”) unit at the same hospital in March 2004 (DSMF ¶ 18) where she
worked until her termination in 2010 (DSMF ¶ 4).
In August 2004, Plaintiff was diagnosed by Dr. Edmond Molis with
“sensory and autonomic neuropathy which could be related to amyloidosis or
primary autonomic neuropathy.” (DSMF ¶ 48.) In September 2004, Dr. Molis
wrote a note that Plaintiff “should not work more than [three] days in a row,
followed by a [three] day rest period before her next shift.” (DSMF ¶ 51.)
Plaintiff’s work schedule was consistent with Dr. Molis’s recommendation, so
Plaintiff did not have to change her hours to accommodate his instructions.
(DSMF ¶¶ 52, 53.) In April 2005, Plaintiff was diagnosed with bilateral tarsal
tunnel syndrome by Dr. Nicodemo Macri. (DSMF ¶ 64.) Dr. Macri recommended
2
that Plaintiff work only eight hours a day and no more than two consecutive days.
(DSMF ¶ 66.) Dr. Macri also recommended that Plaintiff be allowed to do
exercise with a ball once a day for three to four minutes and that Plaintiff should
have frequent rest breaks. (DSMF ¶¶ 67, 68.) Plaintiff made her supervisors
aware of Dr. Macri’s instructions, and Defendant complied with the instructions
regarding Plaintiff’s work schedule, her physical therapy, and her rest breaks.
(DSMF ¶¶ 69, 70, 71, 72.)
During the time that Plaintiff worked for Defendant, she was subject to a
number of disciplinary proceedings. She was the subject of six tardiness
disciplinary actions. For each disciplinary action, she was placed on a ninety-day
probationary period. These actions occurred on August 3, 1994 (DSMF ¶ 24);
December 24, 1996 (DSMF ¶ 32); December 16, 1997 (DSMF ¶ 33); September
11, 1998 (DSMF ¶ 34); April 13, 1999 (DSMF ¶ 35); and September 26, 2000
(DSMF ¶ 38). She was also the subject of two disciplinary actions for failure to
clock in and out. These occurred on September 4, 2009 (DSMF ¶ 93) and March
22, 2010 (DSMF ¶ 108). Plaintiff was the subject of five absenteeism disciplinary
actions; she was placed on a ninety-day probationary period for each action.
These actions took place on November 16, 1999 (DSMF ¶ 36); February 16,
2000 (DSMF ¶ 37); March 19, 2001 (DSMF ¶ 39); April 10, 2001 (DSMF ¶ 43);
and January 16, 2009 (DSMF ¶ 88).
3
In addition to the above-mentioned infractions, Plaintiff’s personnel file is
fraught with various corrective interviews. The following timeline summarizes
these interviews:
-
June 13, 1994: Corrective Interview for failure to check in with her unit
and being late. (DSMF ¶ 20.) Plaintiff disputes the validity of this
disciplinary action (Plaintiff’s Statement of Material Facts (“PSMF”) ¶
20), and claims that she did not fail to check in and she was not as late
as Defendant claims.
-
July 29, 1994: Corrective Interview for failure to attend mandatory
classes on electronic fetal monitoring. (DSMF ¶ 22.)
-
March 27, 1995: Corrective Interview for failure to clock out properly.
(DSMF ¶ 25.)
-
September 15, 1995: Final Corrective Interview for leaving the premises
without permission. (DSMF ¶ 26.) Plaintiff disputes the validity of this
disciplinary action. (PSMF ¶ 26.) Plaintiff claims that she did not have a
patient at the time, and therefore, she believed she was authorized to
the leave the premises.
-
May 17, 1996: Final Corrective Interview transferring Plaintiff from
obstetrics to the medical-surgery unit at Grady General. (DSMF ¶ 28.)
This Interview was based on several incidents: (1) Plaintiff allegedly
delayed sending three urine specimens to the lab; (2) Plaintiff took the
only newborn infant from the mother’s room and then from the nursery
and sat in one of the birthing rooms with the infant and watched
television; (3) Plaintiff did not give her complete report when she came
to work; (4) Plaintiff allegedly acted in an unprofessional manner
towards another nurse; and (5) two physicians complained about
Plaintiff and expressed concerns about her work performance. Plaintiff
disputes the validity of the disciplinary action. (PSMF ¶ 29; see also
Doc. 26-4, p. 45.)
-
March 28, 2001: Corrective Interview for unprofessional behavior and
neglecting duties. (DSMF ¶ 40.) Plaintiff disputes the validity of this
action. (PSMF ¶ 40; see also Doc. 26-4, p. 57-58.) Plaintiff states that
she “hopes as much interest was taken in Lori Kola-Roser [sic] calling
me a bitch in front of the nursing staff. Most of this Interview is incorrect.
4
I am professional and keeps the [patient’s] interest in mind at all times.”
(Doc. 26-4, p. 57-58.)
-
November 18, 2003: Written warning based on concerns about
Plaintiff’s performance issues with patient care. (DSMF ¶ 44.)
-
February 21, 2005: Plaintiff failed to give pain medication to a patient,
though the patient’s chart reflected that she had administered the
medication. (DSMF ¶ 55.)
-
February 22, 2005: Plaintiff changed the schedule for administering
medication to a patient without notifying the pharmacy. (DSMF ¶ 56.)
-
April 15, 2005: Corrective Interview regarding professionalism. This
interview was based on several incidents: (1) physicians and midwives
voiced concerns about calls they received from Plaintiff with questions
about patient care, raising concerns about Plaintiff’s assessment skills;
(2) Plaintiff needed to review charts more carefully before calling
physicians; and (3) Plaintiff walked around the hospital with her shoes
off because “she had bad feet” and she sometimes soaked her feet at
night. (DSMF ¶ 57.) Plaintiff disputes the validity of this disciplinary
action. (PSMF ¶ 57; see also Doc. 26-5, p. 6-7.) Plaintiff claims that she
was not made aware of any complaints and that she had no indication
from her patients that they were displeased with her job performance.
(Doc. 26-5, p. 7.) Plaintiff agreed to keep her shoes on while at work. Id.
-
April 15, 2005: Final Corrective Interview regarding unacceptable work
behavior including: (1) lack of proper patient care; (2) interrupting a
nurse who was assisting a patient by asking her to bring Plaintiff some
sugar from the kitchen; (3) leaving the unit for a break at an
inappropriate time; (4) failure to properly answer call lights; (5) lack of
organizational skills; and (6) failure to properly prioritize. (DSMF ¶ 61.)
Plaintiff disputes the validity of this disciplinary action. (PSMF ¶ 61; see
also Doc. 26-5, p. 9.) Plaintiff denies any knowledge of the sugar
incident. Plaintiff also denies leaving her work area for long periods of
time without asking fellow nurses to cover her patients. She contends
that if she is in the bathroom when a call light goes off “she can’t be in
[two] places at one time.” (Doc. 26-5, p. 9.) She stated that she would
“do [her] best to improve the areas [she] can.” Id.
-
September 27, 2007: Notice of Termination based on an incident when
Plaintiff left work to take care of her daughter without notifying her
5
supervisor that she was leaving. (DSMF ¶ 73.) Plaintiff acknowledges
that she left the building, but she alleges that she asked another nurse
to cover her patients while she was gone. (PSMF ¶¶ 73, 74.) Plaintiff
appealed the Notice of Termination and was reinstated. Her termination
was reduced to a Final Corrective Interview. (DSMF ¶ 77.) Plaintiff later
accepted responsibility for her actions in a letter dated October 19,
2007, in which she stated that “I have accepted that my conduct was
unacceptable and will not do it again.” (Doc. 26-5, p. 12.)
-
August 2008: Plaintiff’s co-workers and a physician complained about
Plaintiff’s unprofessional behavior. (DSMF ¶ 85.)
-
December 15, 2008: Corrective Interview based on Plaintiff’s removal of
a catheter from a patient even though the urine was tinged with blood.
Plaintiff failed to report this finding to the physician. (DSMF ¶ 86.)
-
August 4, 2009: Verbal Corrective Interview based on Plaintiff’s failure
to follow up on medication. (DSMF ¶ 91.)
-
October 27, 2009: Verbal Corrective Interview based on a number of
incidents including: (1) patient complaints about Plaintiff being
inattentive and offensive; (2) a patient’s IV tubing came out and instead
of replacing the tubing, Plaintiff simply reinserted the old tubing, in
violation of hospital policies; (3) failure to properly document urinary
output; (4) patient complaints about Plaintiff’s failure to properly
respond to calls; (5) physician complaints about Plaintiff’s competency;
and (6) Plaintiff was found asleep during working hours. (DSMF ¶ 94.)
-
January 5, 2010: Plaintiff was warned that if the behavior for which she
was disciplined in October 2009 continued, she would be subject to
additional disciplinary measures, including possible termination. (DSMF
¶ 99.)
-
January 20, 2010: Customer Service Probationary Period Evaluation
indicated that Plaintiff was not meeting service excellence standards of
performance. (DSMF ¶ 101.)
-
January 26, 2010: Written Corrective Interview for Plaintiff’s failure to
properly follow up on medication. (DSMF ¶ 106.)
-
March 22, 2010: Final Corrective Interview and Notice of Suspension
given to Plaintiff. (DSMF ¶ 109.) The suspension was based on
6
“unacceptable behavior” including: (1) leaving work without permission;
(2) performing a bladder scan on a patient without a physician’s order;
(3) not improving time management and organizational skills; and (4)
continued failure to follow up on medications. (DSMF ¶ 110.) Plaintiff
disputes the validity of this disciplinary action. (PSMF ¶¶ 109, 110; see
also Doc. 26-5, pp. 28-29.) Plaintiff claims that taking the bladder scan
was a “nursing judgment.” About leaving work, Plaintiff contends that
she forgot her lunch and her daughter brought it to her and she left her
desk for that reason. Id.
-
March 23, 2010: An altercation between Plaintiff and Ms. Martha Clyatt,
Plaintiff’s supervisor, occurred. The altercation was witnesses by
Athalena Benton, Shakerra Ivey, and Takeysha Wyche. (DSMF ¶ 112.)
Plaintiff claims that there was not an altercation but that there was a
“discussion.” (PSMF ¶ 112.) Plaintiff also claims that Ms. Clyatt raised
her voice at Plaintiff. Id.
-
March 31, 2010: Final Notice of Termination. (DSMF ¶ 113.) The Notice
mentioned several reasons that prompted the decision to terminate
Plaintiff including: (1) customer service issues; (2) failure to follow up on
medications; (3) time management issues; and (4) job performance
issues. (Doc. 26-5, p. 48.) The Notice stated that “[d]ue to the
unprofessional, rude and disrespectful behavior exhibited on March 23,
2010 and ongoing patient safety concerns, you are being terminated
effective immediately.” Id.
Plaintiff contacted the Equal Employment Opportunity Commission
(“EEOC”) and filed an Intake Questionnaire on July 5, 2010, alleging race and
disability discrimination by Defendant. This suit arises out those allegations.
II.
SUMMARY JUDGMENT STANDARD
Summary judgment is appropriate when “the pleadings, the discovery and
disclosure materials on file, and any affidavits show there is no genuine issue as
to any material fact and … the moving party is entitled to a judgment as a matter
of law.” Fed. R. Civ. P. 56(c); see Celotex Corp. v. Catrett, 477 U.S. 317, 322,
106 S.Ct. 2548, 2552 (1986). A genuine issue of material fact arises only when
7
“the evidence is such that a reasonable jury could return a verdict for the
nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct.
2505 (1986).
When considering a motion for summary judgment, the court must
evaluate all of the evidence, together with any logical inferences, in the light most
favorable to the nonmoving party. Id. at 354-55. The court may not, however,
make credibility determinations or weigh the evidence. Id. at 255; see also
Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150, 120 S.Ct. 2097
(2000).
The
party
seeking
summary
judgment
“always
bears
the
initial
responsibility of informing the district court of the basis for its motion, and
identifying
those
portions
of
the
pleadings,
depositions,
answers
to
interrogatories, and admissions on file, together with the affidavits, if any, which it
believes demonstrate the absence of a genuine issue of a material fact.” Celotex
Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548 (1986) (internal quotation
marks omitted). If the moving party meets this burden, the burden shifts to the
nonmoving party to go beyond the pleadings and present specific evidence
showing that there is a genuine issue of material fact, or that the nonmoving
party is not entitled to judgment as a matter of law. Id. at 324-26. This evidence
must consist of more than mere conclusory allegations. See Avirgan v. Hull, 932
F.2d 1572, 1577 (11th Cir. 1991). Under this framework, summary judgment
8
must be entered “against a party who fails to make a showing sufficient to
establish the existence of an element essential to that party’s case, and on which
that party will bear the burden of proof at trial.” Celotex, 477 U.S. at 322.
III.
ANALYSIS
A.
Race Discrimination Claim
Title VII provides that an employer may not “discharge any individual …
with respect to his compensation, terms, conditions, or privileges of employment,
because of such individual’s race, color, [or] sex.” 42 U.S.C. § 2000e-2(a)(1). A
plaintiff may establish a prima facie case for discrimination under Title VII in one
of two ways. First, he may present evidence of discrimination through direct
evidence. Wilson v. B/E Aerospace, Inc., 376 F.3d 1079, 1086 (11th Cir. 2004). A
claim based on direct evidence requires “the most blatant remarks, whose intent
could mean nothing other than to discriminate.” Id. (citing Rojas v. Florida, 28
F.3d 1339, 1342 n. 2 (11th Cir. 2002)). “Direct evidence of discrimination would
be evidence which, if believed, would prove the existence of a fact without
inference or presumption.” Carter v. City of Miami, 870 F.2d 578, 581 (11th Cir.
1989). The Court must address whether a plaintiff’s claim of direct evidence of
discrimination has merit. “When direct evidence of discrimination has been
introduced, the lower court must, as an initial matter, specifically state whether or
not it believes plaintiff’s proffered direct evidence of discrimination.” EEOC v.
Alton Packaging Co., 901 F.2d 920, 924 (11th Cir. 1990). Second, where there is
9
no direct evidence of discrimination, a plaintiff may show discrimination through
circumstantial evidence. See Wilson, 376 F.3d at 1086.
Any evidence that
merely suggests discrimination, but does not conclusively establish it, is
considered circumstantial evidence. Id. In this case, Plaintiff makes no claims of
direct discrimination, and therefore, she must rely on circumstantial evidence to
prove her claim.
Without any direct evidence of discrimination, the Court must employ the
three-step burden-shifting framework found in McDonnell-Douglas Corp. v.
Green, 411 U.S. 792, 802-04, 93 S. Ct. 1817, 1824-25, 36 L.Ed. 2d 668 (1973).
Under this framework, the plaintiff must first make out a prima facie case of
discrimination. Chapman v. AI Transp., 229 F.3d 1012, 1024 (11th Cir. 2000) (en
banc). Then the burden shifts to the defendant employer to articulate a
legitimate, nondiscriminatory reason for the employment action. Id. If the
employer is able to articulate a reason for the employment decision, the burden
shifts back to the plaintiff to demonstrate that the employer’s asserted reason is
not the real reason for the employment decision and instead mere pretext. Id. at
1024-25. These steps are examined in greater detail below.
To establish a prima facie case of Title VII discrimination, a plaintiff must
show that “(1) that she is a member of a protected class; (2) she was subjected
to an adverse employment action; (3) her employer treated similarly situated
[white] employees more favorably; and (4) she was qualified for the job.” McCann
10
v. Tillman, 526 F.3d 1370, 1373 (11th Cir. 2008).2 The first element is conceded
by both parties because Plaintiff is African-American, which is a protected class.
The fourth element, whether Plaintiff was qualified for the job, is likewise not the
subject of debate between the parties.
The second element is debated in part. Defendant claims that Plaintiff was
not subjected to adverse employment actions when she was “written up” or
“harassed,” as she claims in her Complaint. (Doc. 1, p. 3.) Defendant contends
that these actions do not constitute adverse employment actions, and therefore,
Plaintiff cannot make out a prima facie case for these claims.
“To prove an adverse employment action … 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.”
2
Plaintiff articulates a different version of the prima facie case from Jones v.
Gerwin, 874 F.2d 1534, 1540 (11th Cir. 1989). In that case, the Court stated that
the fourth prong of the prima facie case could be met either by showing a
similarly situated person outside the protected class was treated more favorably
or by showing that the plaintiff did not violate the work rule. The Eleventh Circuit
later discredited this articulation, stating that “[w]e 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 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.” Jones v. Bessemer Carraway Medical Center, 137 F.3d 1306, 1311 n. 6
(11th Cir. 1998), reh’g denied and opinion superseded in part on other grounds,
151 F.3d 1321 (11th Cir. 1998). Based on Jones v. Bessemer, this Court does
not adopt Plaintiff’s suggestion that compliance with the work rule satisfies the
fourth prong of the prima facie case.
11
Davis v. Town of Lake Park, Fla., 245 F.3d 1232, 1239 (11th Cir. 2001)
(emphasis omitted). Therefore, to show that an action was adverse, a plaintiff
must demonstrate a “serious and material change” in her employment.
In this case, Plaintiff is unable to make a showing of a “serious and
material change” in her employment based on her claims that she “harassed” or
“written up for minor infractions.” The Court finds that these are not adverse
actions. However, Plaintiff and Defendant agree that Plaintiff’s suspension and
termination both constitute adverse actions for the purpose of the prima facie
case under Title VII.
With two adverse actions established – termination and suspension – the
Court turns to the third element of the prima facie case – whether the employer
treated similarly situated white employees more favorably.
To prove this element, a plaintiff must show that his employer treated
similarly-situated employees outside his classification more favorably than
himself. Coutu v. Martin Cty. Bd. of Cty. Commissioners, 47 F.3d 1068, 1073
(11th Cir. 1995). To make this comparison, a plaintiff must show an employee
who is similarly situated in all relevant aspects. Holifield v. Reno, 115 F.3d 1555,
1562 (11th Cir. 1997). A comparator need not have the same job title as the
plaintiff, however “material differences” in “ranks and responsibilities” may render
comparison impossible. Land v. McKeithen, 423 Fed. Appx. 903, 906 (11th Cir.
2011). Instead of comparing job titles, the Eleventh Circuit has noted that the
appropriate inquiry is whether the employer subjected the two employees to
12
different employment policies. Lathem v. Dep’t of Children & Youth Servs., 172
F.3d 786, 793 (11th Cir. 1999).
In determining whether employees are similarly situated for purposes of
establishing a prima facie case, “it is necessary to consider whether the
employees are involved in or accused of the same or similar conduct and are
disciplined in different ways.” Id. To properly evaluate comparator evidence, “the
quantity and quality of the comparator’s misconduct [must] be nearly identical to
prevent courts from second-guessing employers’ reasonable decisions and
confusing apples with oranges.” Maniccia v. Brown, 171 F.3d 1364, 1368 (11th
Cir. 1999).
In McCann v. Tillman, 526 F.3d 1370 (11th Cir. 2008), the Eleventh Circuit
analyzed a plaintiff’s Title VII discrimination claim and applied the “nearly
identical” standard for comparators. Id. at 1374. The Court adopted this standard
over the objections of the plaintiff, who argued for a “similar” standard for
comparators. In adopting the stricter “nearly identical” standard, the Eleventh
Circuit recognized the difficulty faced by the plaintiff in meeting the standard, but
stated that “we are bound by precedent to adhere to the ‘nearly identical
standard.’” Id. at 1374 n. 4.
In this case, Plaintiff is unable to show a valid comparator under the
“nearly identical” standard. Plaintiff names five women in her deposition who she
claims are proper comparators. Plaintiff asserts that these five women, all of
13
whom are white, were treated more favorably than her. Plaintiff’s claims
regarding these women are addressed below.
First, Plaintiff names Jane Moore as a comparator. Plaintiff claims that Ms.
Moore had issues with her performance at Archbold. (Deposition of Angela Jest
(Doc. 26) 195.) The record reflects that Ms. Moore was warned in February 1988
and January 2005 for absenteeism, was given a corrective interview for a
charting error in 1992, and was given a verbal counseling in March 1999
regarding “poor attitude” and “rudeness.” (DSOF ¶ 143.) Plaintiff also provides
additional evidence of Ms. Moore’s performance including performance
evaluations from 2001-2002 (Doc. 37-21, pp. 14-20); 2002-2003 (Doc. 37-21, pp.
21-27); 2004 (Doc. 37-21, pp. 2-7); and 2005 (Doc. 37-21, pp. 8-12). Plaintiff
points to these evaluations and claims that they prove that Ms. Moore had
“performance deficiencies and medication errors.” (Doc. 37, p. 3.)
After review, the Court finds that these evaluations do show that Ms.
Moore had areas that needed improvement, but the Court does not find that her
performance record demonstrates that she is “nearly identical” to Plaintiff for
purposes of comparator evidence. Ms. Moore’s evaluation from 2001-2002
reflects that she was proficient in most areas, receiving a grade of 2 on a scale of
0-4 in most categories. The review shows that she scored a 3 in some areas.
The evaluation from 2002-2003 also shows mostly scores of 2. She received a 0
in the area of following policies for infection control and received several 1s in the
areas of clinical skills, following directions, monitoring patients, notifying the
14
charge nurse when leaving the work area, and assuming responsibility. In 2004,
Ms. Moore again received primarily 2s. She received 1s for not being able to help
with extra staffing needs, for not waiting until emergent situations were over
before going on her break, for not properly assessing newborns for various
symptoms, and for failing to check and restock supplies in the nursery. In 2005,
Ms. Moore received mostly 2s on her evaluation, but she also received a low
score in the areas of responding to patients when they called for help. She
received some negative commentary stating that she “is not always tactful” and
the hospital had “received patient complaints and requests that she not be
responsible for certain patient care.” (Doc. 37-21, p. 10.) Other comments reflect
that “[h]ealth problems interfere with Jane’s productivity” and she has “been
heard to make negative comments about some of her co-workers.” Id.
Despite these reviews, the Court is not convinced that Ms. Moore is a
proper comparator. Though Ms. Moore’s evaluations revealed some areas of
concern, her record is not fraught with the same number of infractions that
Plaintiff’s records reveal. Plaintiff’s record reveals numerous issues with
absenteeism, tardiness, and failure to clock in and out. Further, Plaintiff was
subject to twelve corrective interviews for various performance and patient care
issues. Ms. Moore’s record does not reflect issues of the same frequency or
degree as Plaintiff, and therefore, Ms. Moore is not “nearly identical” and is not a
proper comparator.
15
Next, Plaintiff claims that Ms. Virginia Ponder is a proper comparator.
Plaintiff states that Ms. Ponder is comparable based on her level of performance.
Plaintiff offers Ms. Ponder’s performance evaluations for 2000-2001 and 2005 in
support of her allegation. In her review from 2000-2001, Ms. Ponder consistently
scored 2s and 3s on her evaluation on a scale of 0-4. (Doc. 37-20, pp. 8-16.) She
scored a 1 in the category of working with others and next to her score is the
written comment “strive to be more tactful to co-workers.” (Doc. 37-20, p. 15.)
However, in eighty-two categories, Ms. Ponder scored at the standard or above
the standard, save for the one category about getting along with others.
In the 2005 review, Ms. Ponder scored 2s, 3s, and 4s in thirty-six
categories. She scored two 1s in using good judgment in dealing with difficult
situations with others (Doc. 37-20, p. 3) and maintaining good working
relationships with others (Doc. 37-20, p. 4). In these categories, the reviewer
wrote that Ms. Ponder “need[s] to work to improve tactfulness when dealing with
some staff members” and “can be rude with some staff.” Despite these
comments, the Court finds that Ms. Ponder is not a proper comparator for
purposes of comparing Ms. Ponder’s performance with that of Plaintiff. Similar to
the comparison between Plaintiff and Ms. Moore, discussed above, comparing
Plaintiff to Ms. Ponder does not support a finding that the two women are proper
comparators because they are not “nearly identical.” Plaintiff’s disciplinary record
is far more extensive than Ms. Ponder’s record, and therefore, the two cannot be
16
considered proper comparators for the purpose of establishing a prima facie
case.
Third, Plaintiff suggests Jessica White as a proper comparator for
purposes of establishing a prima facie case for discrimination. Plaintiff alleges
that Ms. White was “noted for being rude” in a patient survey. (Jest 200.)
However, Plaintiff acknowledges that she has no knowledge about whether Ms.
White was written up or asked to be a part of a customer service course based
on her alleged infractions. (Jest 201.) The record shows that Ms. White was
given verbal warnings in June 2009 and May 2010 for failure to clock in or out,
and in December 2010 she was given a warning for clocking in early or clocking
out late. (DSMF ¶ 148.) However, there is no evidence of any other performance
issues in Ms. White’s records. Thus, Plaintiff has failed to put forth enough
evidence to demonstrate that Ms. White is a proper comparator. Her only
infractions relate to clocking in and out properly. This does not show that Ms.
White is “nearly identical” to Plaintiff, and therefore, Ms. White is not a proper
comparator.
Fourth, Plaintiff names Becky McKeown as a proper comparator. Plaintiff
alleges that Ms. McKeown was “very insubordinate.” (Jest 195.) Plaintiff stated
that Ms. McKeown was “about the only one that’s got a terrible temper besides
myself. And I’m not nearly as bad as she is.” (Jest 195-96.) The record reflects
that Ms. McKeown was given a verbal warning for absenteeism in 2007, and she
received a verbal counseling in 2011 for failure to change a hearing screen.
17
However, there is no other evidence of performance deficiencies besides
Plaintiff’s statement. Based on the record, Plaintiff has presented insufficient
evidence to show that Ms. McKeown is a proper comparator.
Finally, Plaintiff names Lori Kohler-Rozar as a comparator. Plaintiff states
that Ms. Kohler-Roza had a “hot temper” and was unprofessional. (Jest 196.) The
record reflects that Ms. Kohler-Roza worked at Grady General from August 1995
until her resignation in May 2002. In March 2001, Ms. Kohler-Roza received a
Final Corrective Interview for “unprofessional behavior.” (DSOF ¶ 150.) However,
Ms. Kohler-Roza does not have an overall record that is equivalent to that of
Plaintiff. Her record does not reflect anywhere near the same amount of
disciplinary actions as Plaintiff’s record, and therefore, the two women are not
“nearly identical” and are not proper comparators.
Zach Wheeler, the Senior Vice President for Human Resources at
Archbold Medical Center, Inc. in Thomasville, Georgia since 1992, gave a
statement comparing Plaintiff’s record to that of other Archbold employees. He
stated that during his twenty years at Archbold, he “knew of no other employee
whose conduct combined the unprofessional, rude and disrespectful behavior,
the poor work performance, the customer service issues, and the ongoing patient
concerns as did that of [Plaintiff].” (Declaration of Zach Wheeler, Doc. 22, p. 6-7.)
The Court finds the statement from Mr. Wheeler persuasive. Plaintiff has named
five other Archbold employees who had some issues with performance, customer
service, or unprofessional behavior. However, none of these women have an
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overall record that is comparable with Plaintiff. Thus, Plaintiff has not presented
sufficient evidence to show that any of the women she named are proper
comparators.
For the above stated reasons, the Court finds that Plaintiff has not named
a proper comparator and, therefore, she cannot establish the prima facie case for
race discrimination under Title VII. Without a prima facie case, Plaintiff’s case
cannot move forward and it is unnecessary to move forward with the burdenshifting analysis.
B.
Disability Discrimination Claim
The Americans with Disabilities Act (“ADA”) prohibits discrimination
“against a qualified individual on the basis of disability in regard to … discharge
of employees, employee compensation, job training, and other terms, conditions,
and privileges of employment.” 42 U.S.C. § 12112(a). To make out a prima facie
case for disability discrimination under ADA, a plaintiff must show that (1) she
has a disability, (2) that, with or without reasonable accommodations, she can
perform the essential functions of the position she holds; and (3) that she was
discriminated against because of her disability. Terrell v. USAir, 132 F.3d 621,
624 (11th Cir. 1998).
In this case, Defendant concedes that Plaintiff has established the first two
elements of the prima facie case. However, Defendant disputes the third
element. Plaintiff claims that she can prove that she was discriminated against by
showing that other non-disabled employees engaged in similar conduct were
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treated differently. (Doc. 36, p. 11.) However, as discussed above, Plaintiff is
unable to present any evidence to show a valid comparator who was in a “nearly
identical” situation and was treated differently. Because Plaintiff cannot name a
valid comparator, her claim for disability discrimination, like her claim for race
discrimination, cannot stand.
IV.
CONCLUSION
For the reasons stated above, Defendant’s Motion for Summary Judgment
(Doc. 18) is granted. Plaintiff was unable to provide evidence of a proper
comparator, and therefore, her race and disability discrimination claims against
Defendant fail as a matter of law.
SO ORDERED, this 8th day of February, 2013.
s/ Hugh Lawson
HUGH LAWSON, SENIOR JUDGE
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