Allen v. St. James Parish Hospital

Filing 42

ORDER & REASONS granting 36 Motion for Summary Judgment. The plaintiff's lawsuit is hereby dismissed. Signed by Judge Martin L.C. Feldman on 11/13/2013. (caa, )

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
ANISSA G. ALLEN

CIVIL ACTION

v.

NO. 12-1619

ST. JAMES PARISH HOSPITAL

SECTION "F"

ORDER AND REASONS
Before the Court is St. James Parish Hospital's motion for
summary judgment.

For the reasons that follow, the motion is

GRANTED.
Background
This litigation arises out of claims of race and disabilitybased employment discrimination asserted by an African-American
housekeeper

for

a

hospital,

confronting

and

threatening

who
an

was

indisputably

African-American

fired

co-worker

for
on

hospital premises.
Anissa G. Allen worked for St. James Parish Hospital as an atwill employee for approximately 19 years before she fired.1
1

During

This factual summary is drawn from St. James Parish
Hospital's Statement of Uncontested Facts, which cites to materials
in the summary judgment record. The plaintiff has failed to submit
any statement of material facts which she contends presents a
genuine issue for trial. Pursuant to this Court's Local Rules:
Any opposition to a motion for summary
judgment must include a separate and concise
statement of the material facts which the
1

the

course

of

her

employment,

she

hospital's housekeeping department.

worked

primarily

for

the

As a housekeeper, Ms. Allen

was responsible for following established cleaning methods in
assigned

areas,

adhering

to

work

schedules,

cleaning

and

sanitizing, and maintaining a working relationship with co-workers
and hospital staff.

Ms. Allen was trained on the hospital's

standards of performance for employees, disciplinary system, and
anti-discrimination policies.

Among the performance standards

expected by hospital employees, the hospital's human resources
policy and procedures provides that the hospital "will not tolerate
any

offensive,

intimidating,

or

hostile

conduct

[including

"threatening or profane language toward others"] that may interfere
with the performance of an employee's job or endanger the safety
and well-being of anyone while on St. James Parish Hospital's
premises."
Malinda Rein, the hospital's housekeeping manager, supervised
Ms. Allen during the majority of her time working at the hospital.

opponent contends present a genuine issue. All
material facts in the moving party’s statement
will be deemed admitted, for purposes of the
motion, unless controverted in the opponent’s
statement.
See Local Rule 56.2; see also Danos v. Union Carbide Corp., --Fed.Appx. ---, 2013 WL 5587226, at *2 (5th Cir. Oct. 11, 2013)(per
curiam) ("If a party fails to oppose a motion for summary judgment,
then the district court is permitted to consider the facts listed
in support of the motion as undisputed and grant summary judgment
if those facts would entitle the movant to judgment as a matter of
law.")(citations omitted).
2

Ms. Allen received positive, neutral, and negative evaluations
during her tenure with the hospital.

She consistently received

negative evaluations for poor cleaning or failure to clean as
directed, failing to follow assigned work schedules, excessive
absences and tardiness, excessive personal phone calls during work
hours, poor time management, excessive socializing during work
hours,

and

lack

hospital staff.

of

respect

for

co-workers,

supervisors,

and

Ms. Allen does not dispute the accuracy of the

negative evaluations she received; she signed all evaluations
except one, not because it was inaccurate, but because "it was not
a good evaluation."2
Ms. Allen received more than 30 write-ups and counseling for
violating hospital work policies and standards of performance. She
was consistently written up for violations such as private phone
calls during work hours, failure to clean assigned areas, excessive
absences and tardiness, and improper clocking in and out.
The year before she was fired, Ms. Allen received eight writeups and counseling sessions:
•
•

on March 5, 2010 Ms. Allen was issued an employee counseling
record for failing to clean the emergency room lobby by 9 a.m.
on July 21, 2010 Ms. Allen received an employee counseling
record for failing and refusing to properly clean the
emergency room and report to her supervisor after completion
even though she had been asked to do so three times that day.

2

Ms. Allen justifies certain negative evaluations,
contending that some of her absences and tardiness were due to
illness and that in general Ms. Rein was never satisfied with her
work.
3

•

•

•

•

•

•

Ms. Allen was issued a "day of decision making" with pay; in
response, Ms. Allen wrote a letter stating that she would
return to work, do her "job the best of [her] ability," "obey
[her] supervisor," and "stay strong to control [her] mouth."
on November 16, 2010 Ms. Allen was issued an employee
counseling record as a result of a report that on November 7,
2010 Ms. Allen was watching television in the outpatient
surgery area during work hours.
on November 16, 2010 Ms. Allen was issued a second employee
counseling record after a doctor reported that the emergency
room doctor's lounge was not being cleaned when she was
responsible for cleaning that area.
on December 13, 2010 Ms. Allen was issued an employee
counseling record after registered nurse Kevin Raul reported
that (1) Ms. Allen was not using the wet floor sign while
mopping, and a hospital employee almost slipped and fell on
the wet floors; and (2) after RN Raul requested Ms. Allen
empty the garbage cans at the nurses' station, Ms. Allen
accused RN Raul of harassment and acting unprofessionally.
on February 20, 2011 Ms. Allen was written-up and counseled by
RN Andrea Wilson after it was reported to RN Wilson that Ms.
Allen failed to respond for 45 minutes after she was paged
over the intercom to report to her assigned area. Hospital
security officer, Lubelia Kelson, who is African-American,
reported to RN Wilson that she observed Ms. Allen returning to
the hospital in her vehicle during the time of the intercom
page, and RN Wilson included Ms. Kelson's statement in the
write-up.
Ms. Kelson also reported to RN Wilson that Ms.
Allen threatened her after Ms. Kelson reported that she had
left the hospital, and the write-up contains Ms. Kelson's
claim that Ms. Allen told her "If I get reported, it ain't
gonna be nothing nice." Ms. Allen was not in the hospital
when she was paged because she went to get something out of
her car. Ms. Allen confronted Ms. Kelson and spoke to her
"with a slightly vigor tone of voice."
on February 28, 2011 RN Wilson sent an email to Ms. Rein
reporting that she was notified by "Hawk", a co-employee of
Ms. Allen's who is also African-American, that Ms. Allen and
Rudolph Carter, another housekeeping employee, were in the
housekeeping department socializing for three hours during Ms.
Allen's work shift. Ms. Allen does not dispute that she was
socializing with Mr. Carter during her work shift. RN Wilson
observed that the acute care area was dirty, a housekeeping
cart had been left unattended, and RN Wilson was not able to
find Ms. Allen for 45 minutes.
on March 10, 2011 Ms. Allen was issued her final employee
counsel record. The March 10, 2011 counseling record provided
three bases for Ms. Allen's termination: (1) Ms. Allen was
4

given a written notice on December 13, 2010 for failing to
treat co-workers with respect and failing to maintain a
positive attitude; (2) on February 20, 2011 Ms. Allen
confronted RN Wilson and threatened Ms. Kelson; and (3); on
March 10, 2011 at 6:15 a.m., Ms. Allen verbally threatened and
used profane language on hospital premises.
On May 25, 2011 Ms. Allen filed a charge with the Equal
Employment Opportunity Commission, alleging race discrimination in
violation of Title VII and disability discrimination in violation
of the Americans with Disabilities Act. On June 22, 2012 Ms. Allen
sued St. James Parish Hospital, alleging race and disability
discrimination.

In her complaint, Ms. Allen alleges that she was

fired for not responding to a page over the intercom on March 10,
2011 and that she wears a hearing aid in her left ear; she also
alleges "other [unspecified] acts of discrimination." A scheduling
order was issued:

a pretrial conference is scheduled for November

21, 2013 and a jury trial is scheduled for December 16, 2013.
After her attorneys withdrew from representing Ms. Allen, she
notified the Court that she would represent herself.

On August 2,

2013 the magistrate judge scheduled a settlement conference for
November 4, 2013.

However, the plaintiff failed to appear for the

conference.3

3

The magistrate judge issued a minute entry stating:

Despite notice of the conference having been
duly mailed to plaintiff..., she failed to
appear
for
the
conference
as
ordered.
Accordingly, a Report and Recommendation will
be issued recommending that plaintiff's
lawsuit be dismissed for failure to prosecute
5

St. James Parish Hospital now seeks summary relief.
I.
A.
Local Rule 7.5 of the Eastern District of Louisiana requires
that memoranda in opposition to a motion be filed eight days prior
to the noticed submission date.

The plaintiff, pro se, apparently

filed her opposition papers on November 6, 2013, but for some
unexplained reason the Clerk's Office did not docket the opposition
until November 12, 2013.

Because the plaintiff submitted her

opposition paper only one day late, the Court will consider the
arguments Ms. Allen raises.

However, the Court notes that she has

failed to submit a statement of contested facts and likewise has
failed to submit any competent summary judgment evidence in support
of the arguments she advances in her opposition paper.
This Court has previously observed:
Although the Fifth Circuit U.S. Court of Appeals
forbids a district court from granting summary judgment
merely because the motion is unopposed (even if the
failure to oppose violated a local rule), if the Court’s
independent review of the record reveals that there are
no genuine disputes as to any material facts, granting
summary judgment is certainly appropriate. See Hibernia
Nat’l Bank v. Admin. Cent. Sociedad Anonima, 776 F.2d
1277, 1279 (5th Cir. 1985)(“The movant has the burden of
establishing the absence of a genuine issue of material
fact and, unless he has done so, the court may not grant
the motion, regardless of whether any response was
filed.”); John v. La. Bd. of Trs. for State Colls. &
Univs., 757 F.2d 698, 709 (5th Cir. 1985); see also Fed.

and for failure to comply with the Court's
order.
See Minute Entry dated 11/4/13.
6

R. Civ. P. 56(e)(“If a party fails to properly support an
assertion of fact or fails to properly address another
party’s assertion of fact as required by Rule 56(c), the
court may . . . grant summary judgment if the motion and
supporting materials–including the facts considered
undisputed–show that the movant is entitled to it.”).
See Danos v. Union Carbide Corp., No. 11-2491, 2012 WL 5877951, at
*2 (E.D. La. Nov. 20, 2012)(Feldman, J.), aff'd by, --- Fed.Appx.
---, 2013 WL 5587226 (5th Cir. Oct. 11, 2013)(per curiam); see also
Luera v. Kleberg Cnty., Tex., No. 11-40774, 2012 WL 490407 (5th
Cir. Feb. 15, 2012).4
B.
Federal Rule of Civil Procedure 56 instructs that summary
judgment is proper if the record discloses no genuine issue as to
any material fact such that the moving party is entitled to
judgment as a matter of law.

No genuine issue of fact exists if

the record taken as a whole could not lead a rational trier of fact
to find for the non-moving party.

See Matsushita Elec. Indus. Co.

v. Zenith Radio., 475 U.S. 574, 586 (1986).

4

A genuine issue of

In Luera, an unpublished opinion, the Fifth Circuit

noted:
We have approached the automatic grant of a
dispositive motion, such as a grant of summary
judgment based solely on a litigant’s failure
to respond, with considerable aversion . . . .
In this case, however, the record makes clear
that the district court dismissed the suit
based on its merits and not as a sanction.
Id. at *1-2 (noting that the plaintiff did not respond to the
defendant’s motion for summary judgment, that the district court
treated the motion as unopposed, and that the district court then
proceeded to analyze the merits in granting the motion).
7

fact exists only "if the evidence is such that a reasonable jury
could return a verdict for the non-moving party."

Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
The Court emphasizes that the mere argued existence of a
factual dispute does not defeat an otherwise properly supported
motion.

See

id.

Therefore,

"[i]f

the

evidence

is

merely

colorable, or is not significantly probative," summary judgment is
appropriate.

Id. at 249-50 (citations omitted).

Summary judgment

is also proper if the party opposing the motion fails to establish
an essential element of his case.
477 U.S. 317, 322-23 (1986).

See Celotex Corp. v. Catrett,

In this regard, the non-moving party

must do more than simply deny the allegations raised by the moving
party.

See Donaghey v. Ocean Drilling & Exploration Co., 974 F.2d

646, 649 (5th Cir. 1992).

Rather, he must come forward with

competent evidence, such as affidavits or depositions, to buttress
his claims.

Id.

Hearsay evidence and unsworn documents that

cannot be presented in a form that would be admissible in evidence
at trial do not qualify as competent opposing evidence.

Martin v.

John W. Stone Oil Distrib., Inc., 819 F.2d 547, 549 (5th Cir.
1987); Fed.R.Civ.P. 56(c)(2).

Finally, in evaluating the summary

judgment motion, the Court must read the facts in the light most
favorable to the non-moving party.

Anderson, 477 U.S. at 255.

II.
The defendant submits that there is no genuine issue of

8

material fact in dispute and that the plaintiff's claims for racial
discrimination

in

violation

of

Title

VII

and

for

disability

discrimination in violation of the Americans with Disabilities Act
are legally and factually deficient.

St. James Parish Hospital

contends that it lawfully terminated Ms. Allen after she violated
hospital policies by confronting and threatening a co-worker on
hospital premises, notably after she received a series of write-ups
for poor work performance and for disrespecting co-workers and
hospital staff. Because the plaintiff fails to set forth any facts
in dispute that demonstrate that she was discriminated based on her
race or alleged disability, St. James Hospital contends it is
entitled to judgment as a matter of law dismissing her claims with
prejudice.

The summary judgment record compels this result.
A.

The standards applicable to Title VII race discrimination
claims are well-settled:
Title VII makes it unlawful for an employer to fire an
employee because of the employer's race. 42 U.S.C. §
2000e-2(a)(1)....
We apply the modified McDonnell
Douglas [McDonnell Douglas Crop. v. Green, 411 U.S. 792,
802 (1973)] approach in racial discrimination cases under
Title VII. Under this approach, [the plaintiff] must
first
make
a
prima
facie
case
of
racial
discrimination....
To make a prima facie case [the
plaintiff] must show that (1) she is a member of a
protected class, (2) she was qualified [for her work
position], (3) she was fired, and (4) she was replaced by
someone outside of her protected class.... Then, [if the
employee establishes a prima facie case of racial
discrimination,
the
employer]
must
articulate
a
legitimate, non-discriminatory reason for firing [the
plaintiff, who] must then "offer sufficient evidence to
9

create a genuine issue of material fact either (1) that
[the employer's] reason is not true, but is instead a
pretext for discrimination (pretext alternative); or (2)
that [the employer's] reason, while true, is only one of
the reasons for its conduct, and another 'motivating
factor' is [the plaintiff's] protected characteristic
(mixed-motives alternative)."
Vaughn

v.

Woodforest

Bank,

665

F.3d

632,

636-37

(5th

Cir.

2011)(internal citations omitted).
The hospital contends that the plaintiff cannot establish a
prima facie case of racial discrimination because (1) she was not
qualified for her position (as shown by the record evidence
establishing her negative evaluations); (2) she was not treated
less favorably than similarly-situated employees outside of her
class (as shown by the record evidence that the plaintiff was fired
for

confronting

and

threatening

an

African-American

female;

plaintiff identifies no white employee that was treated more
favorably);5 and, (3) the defendant submits, the plaintiff was

5

The hospital points out that never during her 19-year
tenure with the hospital did the plaintiff report a single instance
of race discrimination; she did not allege race discrimination in
her EEOC Charge (she merely checked the box); she admitted in her
deposition that she "can't recall" any instances of race
discrimination. Indeed, factual allegations supporting a charge of
racial discrimination are notably absent from the record. In her
opposition paper, Ms. Allen suggests that Malinda Rein mistreated
her, called her an "ugly train wreck", offended her, and harassed
her. However, she submits no evidence that supports any charge of
racial discrimination.
It is worth noting that the record establishes that,
after the plaintiff was fired, she applied for a position with
another company in which she stated that she was fired by the
hospital for arguing with Ms. Kelson.
When she applied for
unemployment benefits, her request for benefits states the reason
10

replaced with another African-American individual.

Finally, the

defendant submits that the hospital fired the plaintiff for a
legitimate, nondiscriminatory reason (because she admits that she
confronted and threatened a co-worker on hospital premises and was
counseled on prior occasions for her lack of respect toward coworkers and staff).

The record supports each of the defendant's

arguments, entitling the hospital to summary judgment dismissing
the plaintiff's Title VII claim.
B.
The American with Disabilities Act prohibits discrimination
against a qualified individual with a disability on the basis of
disability of such individual with regard to employment terms,
conditions, and privileges.
Water

Dev.

Bd.,

464

42 U.S.C. § 12112(a); Amsel v. Tex.

Fed.Appx.

395,

399

(5th

Cir.

2012).

A

"'qualified individual' means an individual who, with or without
reasonable accommodation, can perform the essential functions of
the employment position that such individual holds...."
§ 12111(8).
evaluated

42 U.S.C.

A disability discrimination claim under the ADA is

under

the

same

McDonnell

framework at the summary judgment stage.

Douglas

burden-shifting

Gowesky v. Singing River

Hosp. Sys., 321 F.3d 503, 511 (5th Cir. 2003).
The defendant again contends, and the record confirms, that

for her separation from employment as "arguing on the parking lot
of hospital premises."
11

the plaintiff cannot establish a prima facie case of disability
discrimination. First, the defendant submits that the plaintiff is
not disabled.

While the plaintiff testified that she wears a

hearing aid in her left ear, she admits that she can hear out of
her right ear.

She has not alleged that her hearing issues in her

left ear have affected any of her major life activities as defined
by the ADA.

See 29 C.F.R. § 1630.2(j)(1)-(2); 42 U.S.C. §

12102(2)(A).

The record shows that Ms. Allen has graduated from

school, married, raised children, cared for herself, and that she
has maintained long-term employment despite her alleged disability.
Moreover, the plaintiff alleges only that she was unable to hear
her name paged over the intercom at the hospital, but she also
admits that she was in the parking lot getting something out of her
car at the time she was paged; thus, the hearing impairment was not
the cause of her failure to hear the intercom page.

Furthermore,

the plaintiff never requested a reasonable accommodation for her
hearing impairment; she wore her hearing aid whenever she chose to
do so. Notably, the plaintiff has set forth no facts that indicate
that she had any problems communicating with the hospital staff or
that anyone at the hospital believed that she was restricted in her
ability to perform her housekeeping work compared to housekeeping
employees without a hearing impairment.

Thus, the defendant

submits and this Court agrees that the plaintiff has failed to
demonstrate that she is disabled.

12

See Rodriguez v. Alcoa, Inc.,

805 F. Supp. 2d 310, 316-18 (S.D. Tex. 2011)(granting summary
judgment

in

favor

of

employer

where

employee

with

hearing

impairment failed to establish that he was disabled within the
meaning of the ADA since hearing impairment did not negatively
affect his personal or professional activities).

Moreover, the

record establishes that the plaintiff was fired for violating
hospital

policy

after

she

confronted

and

threatened

another

employee (and not because she failed to respond to an intercom
page).

The defendant is entitled to judgment as a matter of law

dismissing her ADA claim.
Accordingly, the defendant's motion for summary judgment is
GRANTED.

The plaintiff's lawsuit is hereby dismissed.
New Orleans, Louisiana, November 13, 2013

______________________________
MARTIN L. C. FELDMAN
UNITED STATES DISTRICT JUDGE

13