Jackson v. Woodward Hills Nursing Center, Inc. et al

Filing 55

ORDER granting 39 Motion for Summary Judgment. Signed by District Judge Arthur J. Tarnow. (MLan)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
JOANNE JACKSON,
Case No. 16-12752
Plaintiff,
SENIOR U.S. DISTRICT JUDGE
ARTHUR J. TARNOW

v.
WOODWARD HILLS JOINT VENTURE, ET
AL.,

U.S. MAGISTRATE JUDGE ANTHONY
P. PATTI

Defendants.
/
ORDER GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT [39]
Before the Court is Defendants’ Motion for Summary Judgment [39] filed on
December 15, 2017. Plaintiff did not file a response to Defendants’ Motion. On May
7, 2018, the Court held a hearing on the Motion at which it gave the parties the
opportunity to submit additional briefing. Plaintiff filed an untimely Affidavit [51] in
lieu of a brief. Defendants filed a Reply [54] on May 29, 2018. For the reasons stated
below, and incorporating the reasons stated on the record, the Court GRANTS
Defendants’ Motion for Summary Judgment [39] and DISMISSES the case.
FACTUAL BACKGROUND
Plaintiff Joanne Jackson is a 61-year-old African American woman who began
working for Defendant Woodward Hills Joint Venture (“Woodward Hills”)1 as a
Licensed Practical Nurse (“LPN”) in September 2000. Woodward Hills is a nursing

Defendant Premier Healthcare Management (“Premier”) is the company that
manages Woodward Hills.

1

Page 1 of 13

center in Bloomfield Hills, Michigan that provides specialized, full-time care to its
residents.
An employee, who is alleged to have violated a Woodward Hills policy, is
issued a Corrective Action Record (“CAR”) that describes the incident. The CAR,
which the employee is asked to sign, acknowledges that the employee has discussed
the record of her conduct with her supervisor and that lack of improvement may result
in termination. Before terminating an employee for misconduct, Woodward Hills
typically issues four disciplinary warnings.
In September 2013, Woodward Hills hired Defendant Elizabeth McClellan as
its Director of Nursing (“DON”). As the DON, McClellan became Jackson’s
supervisor. McClellan wanted to “start anew with the employees and judge their work
based on her own observations.” McClellan Decl. Ex. 3, ¶ 8.
Prior to 2013, Jackson, like other LPNs at Woodward Hills, had been
disciplined several times for misconduct. Pl. Dep. 58:24-25, July 26, 2017.
On December 30, 2014, an incident occurred in which three nurses, at least two
of whom were white, attempted to assist a patient who was in pain and having
difficulty on the toilet. Jackson, apparently troubled with the nurses’ treatment plan,
testified that she told the nurses that they “should be ashamed” and that it was “scary”
that they did know what they were doing. Pl. Dep. 110:7-15. Jackson also stated that
she discussed the incident with McClellan. Id. at 109:15; Pl. Decl., ¶ 10.

Page 2 of 13

After interviewing the three other nurses – Ashley, Raylene, and Nicole – on
December 31, 2014, McClellan determined that Jackson had disrespected her coworkers by commenting negatively about their performance in front of others,
including patients and their families. McClellan Decl., ¶ 13. On January 5, 2015,
McClellan took her first disciplinary action against Jackson for rude or uncivil
behavior regarding her conduct on December 30, 2014. Jackson signed the CAR,
acknowledging her receipt of the written warning, but noting that she “gave her coworkers respect” and was “sorry that they took it the wrong way.” Ex. 8.
On July 7, 2015, Jackson received a second disciplinary write-up for
insubordination and/or refusal to follow the instructions of her immediate supervisor,
Lindsay Phillips. Notes attached to the CAR indicate that Jackson raised concerns
about Phillips’ favoritism for white employees over black employees. Jackson refused
to sign the CAR acknowledging that she discussed the record of her conduct with
Phillips. Ex. 9.
Jackson testified that sometime in July 2015, other employees told her that
Woodward Hills was trying to “clean house” to “get[] rid of all the old nurses” and
was falsifying disciplinary documents to that end. Pl. Dep. 55:23; 56:5-10. Jackson
stated that, in August 2015, she complained to McClellan about discriminatory
treatment. Pl. Decl., ¶¶ 13.
On December 1, 2015, Jackson received a third disciplinary write-up for rude
or uncivil behavior. The CAR provides in pertinent part:

Page 3 of 13

After reviewing your personnel file, there are numerous examples of
inappropriate actions and words said to your residents. We need you to
be more professional, compassionate and meet your resident’s needs in a
timely manner. We need to see you learning from these corrective
actions and not letting these situations happen again.
Again, Jackson refused to sign the CAR. Ex. 10.
On December 10, 2015, Jackson filed a charge with the Equal Employment
Opportunity Commission (“EEOC”) against Woodward Hills alleging that, since
August 2015, she had received several write-ups from the DON and had been recently
assigned a schedule change without notice. Jackson indicated that she believed she
had been subjected to discriminatory disciplinary actions based on her race and age.
Ex. 12. Jackson testified that she “[n]ever had a problem, for 16 years, so that gave
[her] a good indication” that Woodward Hills was harassing her. Pl. Dep. 199:12-14.
On December 22, 2015, Jackson received a fourth, and final, disciplinary
warning for carelessness in performance, misrepresentation to the facility, falsifying
resident records, and interfering with the work performance of other staff. Again,
Jackson refused to sign the CAR. Ex. 13. The final warning required that she
complete eLearning Modules within two weeks or face possible termination. Jackson
testified that she knew she had to complete the eLearning Modules within two weeks,
but still failed to do so. Pl. Dep. 317:19-23; 332:1-3.
On January 25, 2016, Jackson was suspended. The events that preceded her
suspension are disputed. Jackson testified that at the start of her shift on that date, she
“complained to [the] midnight supervisor to take [her] off the set” and asked to not

Page 4 of 13

work the set. Pl. Dep. 279:11-14; 280:8-9. Jackson’s shift supervisor, Teddy, called
McClellan about Jackson’s request. Without a response from McClellan, Jackson
walked away and left the set. Id. at 282.
Teddy’s notes, however, indicate that Jackson refused a work assignment and
walked off the unit without getting a report from the outgoing nurse. Ex. X. Moreover,
McClellan said that she tried to speak to Jackson over the phone, but she was yelling
and would not let her get a word in; McClellan explicitly told Teddy not to excuse
Jackson from the building. McClellan Decl., ¶ 43.
Minutes later, Jackson returned. She met with McClellan that afternoon.
McClellan stated that she asked Jackson for an explanation of what had happened, but
Jackson did not respond. McClellan Decl., ¶ 52. Jackson was suspended pending
further investigation into what had transpired that morning. Smith Decl., ¶ 20;
McClellan Decl., ¶ 51. Jackson stated that she was provided no explanation for her
suspension. Pl. Decl., ¶ 43.
On January 28, 2016, Jackson was terminated. According to Jackson,
McClellan explained she was terminated because of her failure to complete the
eLearning Modules. Pl. Dep. 292:18-19. The CAR indicates that Jackson committed
several work violations including: refusal to follow the instructions of her immediate
supervisor; failure to complete the eLearning Modules; and leaving the unit without

Page 5 of 13

authorization. Yet again, Jackson refused to sign the CAR acknowledging her conduct
and termination.2 Ex. 17.
Also on January 28, 2016, Jackson amended her EEOC claim to include
termination and retaliation. The EEOC Intake Questionnaire (“Questionnaire”)
provides that on January 25, 2016, the “DON stopped [Jackson] at 2:36pm and
walked [her] out the building [sic] no paperwork to support that [she was] suspended
until further notice.” Ex. 16. The Questionnaire further provides that Jackson believed
the DON’s actions were discriminatory because she received no written paperwork or
pink slip. Ex. 16. Jackson received a Right to Sue letter on April 27, 2016.
PROCEDURAL HISTORY
Jackson commenced this action, pro se, on July 26, 2016. Shortly thereafter,
Jackson retained counsel, who entered an appearance on the record on September 6,
2016. Jackson, through counsel, filed a Motion to Amend Complaint [15] which the
Court granted on January 11, 2017. The Amended Complaint [18] alleges that
Defendants Woodward Hills Joint Venture d/b/a/ Woodward Hills Nursing Center,
Premier Healthcare Management, Lisa Gant,3 and Elizabeth McCllelan4 discriminated

Although Jackson refused to sign the CARs, she nevertheless reviewed them with
her supervisor. Jackson testified: “I always sign saying that I – I will not sign. I
always write, I refuse to sign, at the bottom, not on the signature part.” Pl. Dep.
295:13-15.
3
On November 21, 2017, the parties stipulated to the dismissal of Defendant Lisa
Gant. [Dkt. #38].
4
The Amended Complaint mistakenly refers to DON Elizabeth McClellan as
“Betty McClendon.” Elizabeth McClellan is the same person as Betty McClendon.
2

Page 6 of 13

against Jackson on the basis of race in violation of Michigan’s Elliot Larsen Civil
Rights Act (“ELCRA”) and Title VII (Counts I and II), and further alleges that
Defendants retaliated against her in violation of the ELCRA and Title VII (Counts III
and IV).
Defendants filed a Motion for Summary Judgment [39] on December 15, 2017.
Plaintiff failed to file a timely response which was due January 5, 2018. On January
25, 2018, the Court ordered Plaintiff to respond by February 9, 2018. On February 10,
2018, in lieu of a response, Plaintiff filed a Motion to Extend Time to File a Response
[47]. Defendants filed a Response [48]. Plaintiff filed an untimely Reply [49] on
February 22, 2018, asking the Court for permission to file her response to Defendants’
Motion by March 2, 2018. The Court did not issue a ruling on Plaintiff’s request.
On May 7, 2018, the Court held a hearing on the Motion for Summary
Judgment. Plaintiff’s counsel appeared at the hearing. When asked why she did not
file a response to Defendants’ Motion, Plaintiff’s counsel indicated that she was
awaiting a ruling on the Motion to Extend [47]. To dispel any further confusion, the
Court granted Plaintiff’s Motion to Extend [47] and gave counsel until May 14, 2018
to file a response.
Separately, and on the record, Plaintiff voluntarily dismissed Counts I and II
against all Defendants and dismissed Count IV against Defendant Premier.5

The Court clarified Plaintiff’s voluntary dismissal with prejudice of Counts I and
II in Order [53].

5

Page 7 of 13

On May 15, 2018, Plaintiff’s counsel filed a Response [51] titled “Plaintiff’s
Affidavit” with no accompanying brief. Defendants filed a Reply [54] on May 29,
2018. Accordingly, before the Court is Defendants’ Motion for Summary Judgment
[39] on Plaintiff’s retaliation claims (Counts III and IV).
LEGAL STANDARD
Summary judgment is appropriate “if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, show that
there is no genuine issue as to any material fact and that the moving party is entitled to
a judgment as a matter of law.” Fed. R. Civ. P. 56(c). The moving party has the
burden of establishing that there are no genuine issues of material fact, which may be
accomplished by demonstrating that the nonmoving party lacks evidence to support an
essential element of its case. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). A
genuine issue for trial exists if “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 (1986).
Where a plaintiff fails to respond to a motion for summary judgment, the Court
must assess whether defendants have met their initial Rule 56 burden – “i.e., whether
the facts, as presented by defendants, require[] a determination that they [are] entitled
to judgment as a matter of law.” Guarino v. Brookfield Twp. Trustees, 980 F.2d 399,
407 (6th Cir. 1992).

Page 8 of 13

ANALYSIS
42 U.S.C. § 2000e-3(a) prohibits an employer from retaliating against an
employee because she made a discrimination charge. Siegner v. Twp. of Salem, 654
Fed. App’x. 223, 230 (6th Cir. 2016). “Michigan’s ELCRA includes a similar
provision and [t]he analysis is the same under either act[.]” Id. (internal citations and
quotation marks omitted).
The McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) tripartite burdenshifting framework governs an employee’s retaliation claims based on circumstantial
evidence. Mickey v. Zeidler Tool & Die Co., 516 F.3d 516, 523 (6th Cir. 2008). Under
this framework, Plaintiff first bears the burden of establishing a prima facie case of
retaliation. Spengler v. Worthington Cylinders, 615 F.3d 481, 492 (6th Cir. 2010). To
establish a prima facie claim, Plaintiff must show that:
(1) she engaged in activity protected by Title VII; (2) this exercise of
protected rights was known to the defendant; (3) defendant thereafter
took adverse employment action against the plaintiff, or the plaintiff was
subjected to severe or pervasive retaliatory harassment by a supervisor;
and (4) there was a causal connection between the protected activity and
the adverse employment action or harassment.
Russell v. Univ. of Toledo, 537 F.3d 596, 609 (6th Cir. 2008) (internal citation
omitted).
If Plaintiff satisfies her initial burden of setting forth a prima facie case,
Defendants must “articulate some legitimate, nondiscriminatory reason for [their
actions].” McDonnell Douglas, 411 U.S. at 802.

Page 9 of 13

Finally, if Defendants “succeed in doing so, then the burden shifts back to
Plaintiff to demonstrate that Defendant[s’] proffered reason was not the true reason
for the employment decision.” Spengler, 615 F.3d at 492 (internal citation and
quotation marks omitted).
Defendants challenge only the fourth element of Plaintiff’s retaliation claim,
arguing that there is no causal connection between her protected activity – filing the
initial EEOC charge on December 9, 2015 – and her termination.
Although Plaintiff has not responded to Defendants’ argument, her Affidavit
and counsel’s argument at the hearing suggest that she contends that her retaliation
claim is premised not only on her initial EEOC filing, but also on her discussion with
McClellan on December 30, 2014.
Other than the fact that Plaintiff raised this argument for the first time at the
hearing, thereby depriving Defendants of notice, the problem with the argument is that
neither her deposition nor her affidavit show that she complained to McClellan about
facing discrimination; she simply “asked why [she] was singled out.” Pl. Decl., ¶ 10.
Although Title VII protects “complaints to management and less formal protests of
discriminatory employment practices,” as well as the filing of “discrimination charges
with the EEOC,” see Laster v. City of Kalamazoo, 746 F.3d 714, 730 (6th Cir. 2014),
Plaintiff has failed to demonstrate how her conversation with McClellan about the
December 30th incident (which the Court presumes was an investigatory interview)
constitutes protected activity.

Page 10 of 13

Even if the Court were to consider Plaintiff’s conversation with McClellan as
protected activity, Plaintiff has failed to establish a causal connection between her
complaints and her discipline and termination. “Title VII retaliation claims require
proof that the desire to retaliate was the but-for cause of the challenged employment
action.” Univ. of Texas Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 352 (2013).
Plaintiff’s retaliation claim, however, is based on pure speculation. See DeanLis v. McHugh, 598 Fed. App’x 412, 414 (6th Cir. 2015). To the extent that she argues
that the temporal proximity between the protected activities and disciplinary actions
establishes a causal connection, the Sixth Circuit has repeatedly held that temporal
proximity alone is insufficient to satisfy this element. See Randolph v. Ohio Dep’t of
Youth Servs., 453 F.3d 724, 737 (6th Cir. 2006) (noting that temporal proximity must
be coupled with other indicia of retaliatory conduct). In light of her well-documented
disciplinary record, Plaintiff has offered no evidence to demonstrate that Defendants
would not have terminated her employment had she not complained to McClellan or
filed an EEOC charge.
Assuming, arguendo, that Plaintiff could establish a prima facie retaliation
claim, Defendants have clearly articulated that they disciplined, and ultimately
terminated, Plaintiff because of her record of misconduct and unprofessionalism.
Plaintiff fails to rebut Defendants’ nondiscriminatory reasons for their actions.
An employee can show that her employer’s proffered reasons were a pretext for
discrimination by demonstrating that: “(1) the employer’s stated reason for

Page 11 of 13

terminating the employee has no basis in fact, (2) the reason offered for terminating
the employee was not the actual reason for the termination, or (3) the reason offered
was insufficient to explain the employer’s action.” Spengler, 615 F.3d at 493 (internal
citation and quotation marks omitted).
Here, Plaintiff attempts to demonstrate pretext via the first method – “by
attacking the credibility of Defendants’ proffered reason.” Seeger v. Cincinnati Bell
Tel. Co., LLC, 681 F.3d 274, 285 (6th Cir. 2012). Plaintiff submits that Defendants
falsified documents and failed to conduct thorough investigations.
However, where Defendants demonstrate an “honest belief in [their] proffered
reason,” a finding of pretext is unwarranted. See id. (quoting Joostberns v. United
States Parcel Servs., Inc., 166 Fed. App’x. 783, 791 (6th Cir. 2006)). “The key
inquiry is whether the employer made a reasonably informed and considered decision
before taking an adverse employment action.” Smith v. Chrysler Corp., 155 F.3d 799,
807 (6th Cir. 1998).
Defendants held an honest belief that Plaintiff committed several policy
violations, including demonstrating rude and unprofessional behavior toward staff and
patients, abandoning patients, and failing to complete required training. Plaintiff’s
“bare assertions” that Defendants’ reasons for termination have no basis in fact are
insufficient to call their “honest belief into question.” Seeger, 681 F.3d at 285.
Viewing the evidence in the light most favorable to Plaintiff, the Court
concludes that Defendants made a reasonably informed and considered decision

Page 12 of 13

before terminating Plaintiff. Defendants conducted interviews and investigations on
each of the incidents that gave rise to the disciplinary action they took against
Plaintiff. Plaintiff received multiple warnings that such disciplinary action could result
in termination and admitted that she did not complete the eLearning training Modules
as required. Plaintiff has not shown that Defendants’ “decision making process was
unworthy of credence.” Id. (internal citation omitted). Accordingly, Plaintiff has failed
to satisfy her burden of establishing pretext.
CONCLUSION
For the reasons stated above, and incorporating the reasons stated on the record,
IT IS ORDERED that Defendants’ Motion for Summary Judgment [39] is
GRANTED.
IT IS FURTHER ORDERED that this case is DISMISSED with prejudice.
SO ORDERED.

Dated: June 11, 2018

s/Arthur J. Tarnow
Arthur J. Tarnow
Senior United States District Judge

Page 13 of 13