Landrum v. Delta Regional Medical Center
Filing
35
ORDER granting 30 Motion. The defendant is granted summary judgment as to all of plaintiff's Title VII claims. To the extent plaintiff has asserted a retaliation claim under the ADA, and to the extent it is properly before the Court, that is sue remains pending. Accordingly, the defendant is granted an additional 21 day period (from this date) to file a dispositive motion, and plaintiff shall have 14 days thereafter to respond. Defendant's reply will be due 7 days thereafter. Signed by Magistrate Judge Jane M. Virden on 2/6/15. (ncb)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF MISSISSIPPI
GREENVILLE DIVISION
EZELL LANDRUM
PLAINTIFF
VS.
CIVIL ACTION NO. 4:13-CV-00180-JMV
DELTA REGIONAL MEDICAL CENTER
DEFENDANT
MEMORANDUM OPINION AND ORDER
This matter is before the Court on Defendant Delta Regional Medical Center’s
(“DRMC”) Motion for Summary Judgment [30] on the pro se plaintiff’s complaint for
gender/race discrimination and retaliation pursuant to Title VII. The matter has been fully
briefed, and the Court finds, for the reasons discussed below, the motion is well taken.
FACTS
The plaintiff, Ezell Landrum, was first employed by DRMC in 1994, and he was working
as a registered nurse in the Solutions Adult-Psychiatric Unit of DRMC (hereinafter referred to as
“Solutions”) under Director Jessica Willis, a white female, when he was first terminated on June
25, 2010, due to repeatedly failing to complete nursing assessments and documentation. See
Landrum Dep. 49-50; Jessica Willis Aff. (and Exhibit 4 attached thereto). Although Willis
initially classified Landrum as not eligible for rehire, he was given a second chance by her in
August 2011, when he again went to work at DRMC’s Solutions. See Willis Aff.
On March 21, 2013, Landrum was again terminated, this time for allegedly failing to
perform his responsibility for monitoring patients. See Willis Aff. (and Exhibit 8 attached
thereto). Specifically, DRMC asserts that on March 14, 2013, Willis learned female patients had
complained that a male patient was roaming the halls knocking on doors the previous night. Id.
According to DRMC, Willis contacted hospital security, and she and a security officer reviewed
the video surveillance film of the evening in question which showed Landrum enter non-patient
rooms and remain for several hours during the time the male patient roamed the halls and
knocked on doors. Id.
On March 29, 2013, Landrum filed an EEOC Charge of Discrimination (” Charge”)
against DRMC wherein he alleged discrimination on the basis of gender and retaliation. See
Charge attached to Compl. Doc. #4. In his Charge, Landrum asserted that his gender
discrimination is “based on [DRMC employee] Jessica Willis’ longstanding and ongoing
disparate treatment, harsh disciplinary action and punishment of me as a male staff member.”
Landrum further asserted in the Charge that “female staff members in my department do not
receive disciplinary action to the degree and extent that I have received for similar allegations
and countless situations.” No allegations pertaining to race were made in the Charge. In support
of the remaining claim, Landrum asserted in the Charge, “Retaliation based on my on going
request for Director, Jessica Willis, to provide reasonable accommodations and safe environment
for mentally disabled patients.”
On July 26, 2013, the EEOC issued its right to sue. Id. On October 11, 2013, Landrum
commenced this action by motion to proceed in forma pauperis–which was denied–and on
December 4, 2013, Landrum filed his Complaint against DRMC. In his Complaint, Landrum
also included a claim for discrimination based upon race. See Compl., Doc. #4, ¶ 10.
During his deposition, Landrum testified that his termination of March 2013 was the last
discriminatory act in a “pattern” of acts dating back to his first tenure at DRMC. When asked to
describe specifically each complained of discriminatory act, Landrum identified three occasions
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where he received disciplinary action:
June 25, 2010
As noted above, Landrum was terminated June 25, 2010, for, according to DRMC, his
failure to complete nursing assessments and documentation. See Landrum Dep. 49-50. Landrum
testified that this was the first occasion of discrimination against him. Id. Landrum claims that
two other similarly situated female employees were treated more favorably for the same or
similar conduct. Id. at 51-52. Landrum conceded that even though he thought this was
discriminatory conduct when it occurred, he did not file a Charge of Discrimination within 180
days. Id. at 52. Not only did he not file a charge within the statutory period, the Charge attached
to the instant Complaint is silent as to this alleged discriminatory event. Moreover, this event is
not mentioned in the Complaint. To the contrary, the Complaint alleges the discrimination
began in November 2012 and ended March 21, 2013. See Compl. ¶ 5B [Doc. #4].
April 19, 2012
On April 19, 2012, Landrum having been rehired by DRMC in August 2011, received a
Counseling Memorandum and a three-day suspension for failure to notify the director and
nursing supervisor of a patient falling which necessitated medical attention on April 8, 2012.
See Landrum Dep. 58-66. See Willis Aff. (and Exhibit 6 thereto). It is uncontested that a female
nurse, Marcia Kidd, RN, also received the identical Counseling Memorandum and a three-day
suspension. See Willis Aff. (and Exhibit 7 attached thereto). Landrum did not file an EEOC
Charge within 180 days relating to this adverse employment action either. Nor is this event
referred to in the Charge attached to the Complaint, or even mentioned in the Complaint. As
noted, the Complaint itself specifically alleges the discrimination began in November 2012 and
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ended March 21, 2013. See Compl. ¶ 5B [Doc. #4].
March 13-14, 2013
This is the incident recounted above for which Landrum was most recently terminated,
where DRMC claims that female patients complained that a male patient was walking the halls
during the night knocking on their doors, and Landrum, who was responsible for monitoring the
patients, was observed on video surveillance entering a non-patient room for hours at a time. It
is uncontested that during the course of the investigation of this incident, Willis also observed
the conduct of a female employee going into a room and not coming out for several hours. See
Willis Aff. (and Exhibit 9 attached thereto). Like Landrum, that female employee was also
terminated by Willis for this conduct. Id.
Regarding his retaliation claim, Landrum explained at his deposition that his March
termination was based on false allegations made up to serve as a pretext for a desire to terminate
him because he had previously recommended and requested that certain safety protocols, used at
other facilities and recommended by a hospital oversight commission, be adopted at Solutions.
According to Landrum it was, in particular, the failure to have earlier removed closet doors that
contributed to the suicidal death by hanging of one of the Solution’s patients. Landrum Dep.
126.
Though Landrum asserts in his pro se complaint that his retaliation charge is brought
pursuant to Title VII, it appears to the Court that the substance of the claim may be that plaintiff
was retaliated against for engaging in protected activity under the American with Disabilities Act
(ADA). Accordingly, while the Court has addressed all of plaintiff’s Title VII claims below,
their disposition leaves pending and un-briefed the viability of a retaliation claim under the
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ADA, if any is, in fact, properly before the Court.
SUMMARY JUDGMENT STANDARD
The standard of review in actions of this sort was explained in Brewer v. Alliance
Healthcare Services, No. 4:11CV130-SA-JMV, 2013 WL 1896132 (N.D. Miss. May 6, 2013):
Summary judgment is warranted under Rule 56(a) of the Federal Rules of
Civil Procedure when the evidence reveals there is no genuine dispute regarding
any material fact and that the moving party is entitled to judgment as a matter of
law. The rule “mandates the entry of summary judgment, after adequate time for
discovery and upon motion, against a party who fails to make a sufficient
showing to establish the existence of an element essential to that party's case, and
on which that party will bear the burden of proof at trial.” Celotex Corp. v.
Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).
Conclusory allegations, speculation, unsubstantiated assertions, and
legalistic arguments are not an adequate substitute for specific facts
demonstrating a genuine issue for trial. TIG Ins. Co. v. Sedgwick James of Wash.,
276 F.3d 754, 759 (5th Cir.2002). “A party asserting that a fact cannot be or is
genuinely disputed must support the assertion by citing to particular parts of
materials in the record ... or showing that the materials cited do not establish the
absence or presence of a genuine dispute, or that an adverse party cannot produce
admissible evidence to support the fact .” FED. R. CIV. P. 56(c). The court is only
obligated to consider cited materials but may consider other materials in the
record. FED. R. CIV. P. 56(c)(3). The court must resolve factual controversies in
favor of the nonmovant “but only when there is an actual controversy, that is,
when both parties have submitted evidence of contradictory facts.” Little v. Liquid
Air Corp., 37 F.3d 1069, 1075 (5th Cir.1994). When such contradictory facts
exist, the court may “not make credibility determinations or weigh the evidence.”
Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150, 120 S.Ct. 2097,
147 L.Ed.2d 105 (2000).
Brewer, supra, at *2.
DISCUSSION AND ANALYSIS
I. Race Discrimination
Although Landrum did not charge discrimination on the basis of race in his Charge of
Discrimination before the EEOC, he does so in his Complaint. Landrum cannot proceed before
this Court on his race discrimination claims because he did not sufficiently raise them in his
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EEOC charge. Sapp v. Potter, 413 Fed. App’x. 750, 752 (5th Cir. 2011) (finding it “well-settled
law of this circuit that a public employee cannot proceed in a Title VII action until that employee
has exhausted all available administrative remedies”). Furthermore, in his deposition, Landrum
conceded that he is making no claim in this lawsuit that he was ever discriminated on the basis of
his race. See Landrum Dep. 46-49. Accordingly, the claim of discrimination on account of race
is dismissed with prejudice.
II. Gender Discrimination
A. The 2010 termination and 2012 three-day suspension.
Landrum’s claims for discrimination in June, 2010 (a termination) and April, 2012 (a
three-day suspension) are plainly time barred. No charge pertaining to either of these events has
ever been filed with EEOC, and for that matter, they are not even referenced in the Complaint
which itself limits the complained of conduct to a period between November 2012 and March
2013. Landrum’s effort to resurrect these occurrences as a basis for a valid gender
discrimination claim by asserting, vaguely, a “pattern” claim (aka a “continuing violation”) is
meritless. The continuing violation doctrine relieves a plaintiff of establishing that all of the
complained-of conduct occurred within the actionable period if the plaintiff can show a series of
related acts, one or more of which falls within the limitations period.” Huckabay v. Moore, 142
F.3d 233, 238 (5th Cir. 1998) (quoting Messer v. Meno, 130 F.3d 130, 134–35 (5th Cir. 1997)).
However, the continuing violation doctrine is not applicable to “[d]iscrete acts such as
termination, failure to promote, denial of transfer, or refusal to hire.” Nat'l R.R. Passenger Corp.
v. Morgan, 536 U.S. 101, 114, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002); Mayers v. Laborers'
Health & Safety Fund of N. Am., 478 F.3d 364, 368 (D.C. Cir. 2007) (applying Morgan to ADA
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claims).
Moreover,“where a pattern of harassment spreads out over years, and it is evident long
before the plaintiff sues that she was a victim of actionable harassment, she cannot reach back
and base her suit on conduct that occurred outside the statute of limitations.” See Webb v.
Cardiothoracic Surgery Assocs. of N. Tex., P.A., 139 F.3d 532, 537 (5th Cir. 1998), abrogated
on other grounds by Burlington N. & Santa Fe Ry. Co. v. White, 548 U. S. 53 (2006); Celestine
v. Petroleos de Venezuella SA, 266 F.3d 343, 352 (5th Cir. 2001). Since the complained of acts
were discreet, i.e., 2010 termination and a 2012 three-day suspension, and since plaintiff even
acknowledged his believing the earlier complained of action(s) were discriminatory when they
occurred, the continuing violation doctrine has no application in this case.
Finally, and in any event, for the continuing violation doctrine to save an otherwise time
barred complaint, at least one discriminatory event must have occurred within the actionable
period. Because, as explained below, the last complained of event (March 2013) was not an
action in violation of the prohibition against gender discrimination, it avails plaintiff nothing.
B. The 2013 termination.
“In employment discrimination cases, a plaintiff may rely on direct or circumstantial
evidence, or both.” Jackson v. Cal-Western Packaging Corporation, 602 F.3d 374 (5th Cir.
2010), citing Sandstad v. CB Richard Ellis, Inc., 309 F.3d 893, 896 (5th Cir. 2002). Since
Landrum does not rely on direct evidence of gender discrimination, whether he can establish a
prima facie case based upon circumstantial evidence must be examined under the framework
established by the United States Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S.
792 (1973). To establish a prima facie case of gender discrimination (in a case such as this),
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Landrum must show the following: (1) that he was a member of a protected group; (2) he was
qualified for the position in question; (3) he was subjected to an adverse employment action; and
(4) received less favorable treatment due to his membership in the protected class than did other
similarly situated employees who were not members of the protected class, under nearly
identical circumstances (and/or, in the case of termination, was replaced by a different gender)
Brewer v. Alliance Healthcare Services, supra, citing Wesley v. Gen. Drivers, Warehousemen &
Helpers Local 745, 660 F. 3d 211, 213 (5th Cir. 2011); Smith v. City of Jackson, Miss., 351 F.3d
183, 196 (5th Cir. 2011).
In the instant case, Landrum offers no evidence to support a contention that when he was
terminated in March 2013, he was either replaced by another gender or that a similarly situated
female under nearly identical circumstances was not terminated. On the contrary, rather than
identifying a satisfactory comparator of a different gender and evidence from which the Court
could determine whether they were similarly situated or whether their offenses were sufficiently
similar, Landrum insists that the other employee, a female also observed on the video doing the
same thing he did, and who was also terminated as a result, was not similarly situated for Title
VII purposes. Landrum may not establish a prima facie case of discrimination arising from his
March termination under these circumstances. See Graham v. Bluebonnet Trails Community
Services, 587 F. App’x. 205 (5th Cir. 2014).1
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The Graham court reasoned as follows:
Although . . . [Graham] names other individuals of different races and claims that they
were treated more favorably, she does not point to any evidence that would have allowed
the district court to determine whether they are similarly situated or whether their work
suffered from the same shortcomings that Bluebonnet alleges about Graham's. Even
when specific comparators are identified, we require a significant degree of similarity
between the plaintiff's situation and that of the comparators. . . . In this case, we cannot
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III. The Retaliation Claim
A. Title VII
Landrum alleges he was retaliated against, in violation of Title VII because of his
“repeated requests to provide reasonable accommodations and a safe environment for mentally
disturbed patients.” See Complaint, ¶ 10 [Doc. #4]. A plaintiff alleging retaliation under Title
VII must demonstrate a prima facie case by establishing “(1) he engaged in activity protected by
Title VII; (2) that he suffered an adverse employment action; and (3) that a causal connection
exists between the protected activity and the adverse employment action.” Byers v. Dallas
Morning News, Inc., 209 F.3d 419, 427 (5th Cir. 2000) (citing Webb v. Cardiothoracic Surgery
Assoc., 139 F.3d 532, 540 (5th Cir. 1998)). Protected activity is defined by courts as “(1)
‘oppos[ing] any practice made an unlawful employment practice by this subchapter,’ or (2)
‘ma[king] a charge, testif[ying], assist[ing], or participat[ing] in any manner in an investigation,
proceeding, or hearing under this subchapter.’” Id. (citing 42 U.S.C. § 2000e-3(a)). Landrum
cannot satisfy the first prong of the test for retaliation under Title VII because the requests for
accommodations for patients, assuming he made such recommendations, was not “protected
activity” as defined under Title VII as set forth in Byers, supra. Without being able to show
engagement in a protected activity under Title VII, he also cannot demonstrate the requisite
even engage in that analysis because Graham offers no facts from which we can
determine whether the individuals ‘being compared held the same job or responsibilities
[and] shared the same supervisor or had their employment status determined by the same
person.’. . . She simply asserts that these individuals were given preferential treatment
without offering the details that the inquiry requires. Without similarly situated
comparators of a different race who were allegedly treated more favorably, there is no
basis for a factfinder to infer discrimination.
Graham, 587 F. App’x at 207.
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causal connection between the protected activity and the adverse employment action, making
summary judgment appropriate on his Title VII claim for retaliation.
B. ADA
As earlier stated, though Landrum has asserted his retaliation claim under Title VII, and
defendant has only addressed the retaliation claim pursuant to Title VII, because Landrum is pro
se and because the terminology he uses in making his retaliation claim sounds in the nature of an
ADA claim, the Court finds it will be necessary to require additional briefing on this issue
should the parties desire the Court to consider the same by way of dispositive motion.
Accordingly, the defendant is granted an additional 21 day period (from this date) to do so,
and plaintiff shall have 14 days thereafter to respond. Defendant’s reply will be due 7 days
thereafter.
CONCLUSION
For the foregoing reasons, the defendant is granted summary judgment as to all of
Plaintiff’s Title VII claims. To the extent plaintiff has asserted a retaliation claim under the
ADA, and to the extent it is properly before the Court, that issue remains pending.
SO ORDERED this 6th day of February, 2015.
/s/ Jane M. Virden
U. S. Magistrate Judge
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