Toney v. Select Specialty Hospital et al
Filing
46
Memorandum Opinion and Order granting 36 MOTION for Summary Judgment. A separate judgment will be entered dismissing this case with prejudice. Signed by District Judge Tom S. Lee on 10/26/15 (LWE)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF MISSISSIPPI
NORTHERN DIVISION
ANNIE TONEY
PLAINTIFF
VS.
CIVIL ACTION NO. 3:14CV456TSL-JCG
SELECT SPECIALTY HOSPITAL D/B/A
SELECT EMPLOYMENT SERVICES, INC.; AND
SELECT SPECIALTY HOSPITAL-JACKSON, INC.
DEFENDANTS
MEMORANDUM OPINION AND ORDER
This cause is before the court on the motion of defendants
Select Specialty Hospital d/b/a Select Employment Services, Inc.
and Select Specialty Hospital-Jackson, Inc. (Select Hospital) for
summary judgment pursuant to Rule 56 of the Federal Rules of Civil
Procedure.
the motion.
Plaintiff Annie Toney has responded in opposition to
The court, having considered the memoranda of
authorities, together with attachments, submitted by the parties,
concludes that defendant’s motion is well taken and should be
granted.
Background
Select Hospital is a fifty-three bed long-term acute care
hospital that provides diagnostic and medical treatment to
patients with chronic diseases or complex medical conditions.
Plaintiff Toney, who is African-American, was employed by Select
Hospital as a registered nurse from 2004 until her termination in
January 2013.
Her primary duties with Select Hospital were to
provide patient care in one of the Hospital’s four units:
East, Central and West.
ICU,
Depending on staffing, she would have one
to three patients in the ICU or four to six patients in the other
three units.
On the afternoon of January 16, 2013, Toney left the hospital
in the middle of her shift to attend to some personal business.
A week later, she was terminated, ostensibly because Select
Hospital, upon investigation, determined that on that occasion,
Toney, upon leaving the hospital mid-shift, had assured the charge
nurse she would return before her patients needed care, yet she
failed to return until long after her shift had ended, abandoning
her patients and leaving the remaining nursing staff scrambling to
ensure her patients received care from the time she left until her
shift ended at 7:30 p.m.
Toney denies she abandoned her patients;
she claims she had permission to leave and had made proper
arrangements for her patients’ care in her absence.
She claims
the real reason she was terminated was her race.
Following her termination, Toney filed a charge of
discrimination with the Equal Employment Opportunity Commission
(EEOC), claiming she was terminated on account of her race.
After
receiving her EEOC right-to-sue letter, Toney filed this lawsuit
asserting claims under Title VII of the Civil Rights Act, 42
U.S.C. § 2000e et seq. and 42 U.S.C. § 1981, based on alleged race
discrimination in the terms and conditions of her employment,
2
culminating in her termination from employment.
More
particularly, Toney alleges that during her employment, she was
passed over for promotion on account of her race; that in general,
white nurses received preferential treatment by Select Hospital;
that she was subjected to a racially hostile work environment; and
that ultimately, she was terminated because of her race.
In
addition to these federal claims, Toney has asserted state law
claims for breach of contract and intentional infliction of
emotional distress.1
Select Hospital seeks summary judgment on
all of these claims.
Summary Judgment Standard
Summary judgment is proper “if the movant shows that there is
no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a).
A genuine dispute as to a material fact 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, 106 S. Ct. 2505, 2510, 91 L. Ed. 2d 202 (1986).
In
evaluating a summary judgment motion, the court must construe “all
facts and inferences in the light most favorable to the nonmoving
party.”
McFaul v. Valenzuela, 684 F.3d 564, 571 (5th Cir. 2012)
1
Toney’s complaint was originally filed in the Circuit
Court of Hinds County, Mississippi, but was timely removed by
Select Hospital on the basis of federal question jurisdiction
under 28 U.S.C. § 1331.
3
(quoting Dillon v. Rogers, 596 F.3d 260, 266 (5th Cir. 2010)).
However, “[s]ummary judgment may not be thwarted by conclusional
allegations, unsupported assertions, or presentation of only a
scintilla of evidence.”
Id.
Race Discrimination: Title VII/Section 1981
Toney has brought her claims for race discrimination under
Title VII and § 1981, both of which prohibit employers from taking
adverse employment actions against employees on the basis of race.
See 42 U.S.C. § 2000e-2(a)(1) (making it “an unlawful employment
practice for an employer ... to discriminate against any
individual with respect to [her] compensation, terms, conditions,
or privileges of employment, because of such individual's ...
race”); 42 U.S.C. § 1981(a) (prohibiting racial discrimination in
the “making, performance, modification, and termination of
contracts, and the enjoyment of all benefits, privileges, terms,
and conditions of the contractual relationship”).
In general, in
the employment context, the same standards that apply to race
discrimination claims under Title VII apply to such claims under
§ 1981.
See DeCorte v. Jordan, 497 F.3d 433, 437 (5th Cir. 2007)
(“Claims of racial discrimination in employment, pursuant to 42
U.S.C. § 1981, are governed by the same analysis as that employed
for such claims under Title VII.”).
4
Discriminatory Discharge
Since Toney has no direct evidence of discrimination, the
court applies the burden-shifting framework of McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668
(1973), to evaluate her claims.
See Mayberry v. Vought Aircraft
Co., 55 F.3d 1086, 1089-91 (5th Cir. 1995).
Under that framework,
to prove her claim of discriminatory discharge, Toney must first
establish a prima facie case of discrimination.
Wheeler v. BL
Dev. Corp., 415 F.3d 399, 405 (5th Cir. 2005) (citation omitted).
If she can establish a prima facie case, defendant must then offer
a legitimate, non-discriminatory reason for her termination, at
which time plaintiff “‘must then offer sufficient evidence to
create a genuine issue of material fact either (1) that the
defendant's reason is not true, but is instead a pretext for
discrimination (pretext alternative); or (2) that the defendant's
reason, while true, is only one of the reasons for its conduct,
and another motivating factor is the plaintiff's protected
characteristic (mixed-motive[s] alternative).’”
Keelan v. Majesco
Software, Inc., 407 F.3d 332, 341 (5th Cir. 2005) (quoting Rachid
v. Jack In The Box, Inc., 376 F.3d 305, 312 (5th Cir. 2004)).
Typically, to prove a prima facie case of discriminatory
discharge, the plaintiff must establish that she (1) is a member
of a protected class; (2) was qualified for the position; (3) was
subject to an adverse employment action; and (4) was replaced by
5
someone outside the protected class, or, in the case of disparate
treatment, show that other similarly situated employees were
treated more favorably.
Bryan v. McKinsey & Co., Inc., 375 F.3d
358, 360 (5th Cir. 2004) (citing Okoye v. Univ. of Texas Houston
Health Sci. Ctr., 245 F.3d 507, 512 (5th Cir. 2001)).
The Fifth
Circuit has held that, alternatively, “[i]n work-rule violation
cases, a Title VII plaintiff may establish a prima facie case by
showing ‘either that he did not violate the rule or that, if he
did, white employees who engaged in similar acts were not punished
similarly.’”
Mayberry, 55 F.3d at 1090 (quoting Green v.
Armstrong Rubber Co., 612 F.2d 967, 968 (5th Cir. 1980)).
Select Hospital does not dispute that plaintiff can establish
the first three elements of the usual prima facie case:
Toney is
a member of a protected class, was qualified for her position and
was subject to an adverse employment action.
However, Select
Hospital challenges the sufficiency of Toney’s proof as to the
fourth element, i.e., the requirement that she present evidence to
create a triable issue with respect to whether she was replaced by
someone outside the protected class, or whether other similarly
situated employees were treated more favorably.
at 360.
Bryan, 375 F.3d
For her part, Toney does not contend she was replaced by
someone outside the protected class.2
2
Rather, her position is
She was not. Defendant has presented uncontroverted
evidence that she was replaced by an African-American.
6
that she did not violate a work rule or that, even if she did,
white employees who committed similar infractions were treated
more favorably.
Collateral Estoppel Defense:
Select Hospital argues that, at
least as to her claim under § 1981, plaintiff is collaterally
estopped from denying that she was terminated for engaging in
misconduct based on findings made by the Mississippi Department of
Employment Security (MDES) on her post-termination claim for
unemployment benefits.
It notes that after she was terminated,
Toney filed an application for unemployment benefits with the
MDES.
The MDES claims examiner found she was disqualified from
benefits on the ground that she was discharged for cause.
Toney
appealed, and following a hearing, the administrative law judge
(ALJ) likewise found she was discharged for misconduct.
He
specifically found the following: that Toney told the charge nurse
around 2:15 p.m. on January 16, 2013 that she had to leave to take
care of some personal business and would be back before it was
time to do anything else for her patients; that she did not return
in time to do the next scheduled things for her patients; that
Select Hospital attempted to call her but only got her voice mail;
that when she eventually called back around 5:30 p.m., she advised
she was in court as a witness for a friend and did not know when
she would be finished; and that she did not return to the hospital
7
until after her shift had ended, at which time she was sent home.
The ALJ found:
The claimant was absent from work for over five hours
and the employer did not know where she was prior to her
call after 5:00 p.m. It is the opinion of the
administrative law judge that the Claimant's discharge
was for actions which substantially disregarded the
standard of behavior that an employer has the right to
expect from an employee and justifies disqualification
for benefits under the above section of the Law.
Defendant submits that the determination by the MDES that Toney
engaged in work-related misconduct, for which she was terminated,
operates under the doctrine of collateral estoppel to preclude her
from relitigating that issue in this court.
In other words, it
contends she is precluded from asserting or undertaking to prove
in this cause that she did not violate the work-rule for which
Select Hospital contends she was terminated.
The rules governing collateral estoppel, or issue preclusion,
differ for Title VII and § 1981 claims; Toney has asserted both.
As this court explained in Johnson v. Mississippi Power Co.,
[I]n a Title VII action, a prior state decision enjoys
preclusive effect only if rendered or reviewed by a
court; “[a]n administrative decision involving Title VII
claims that is not reviewed by a state or federal court
may not preclude a subsequent Title VII claim.” Thomas
v. Louisiana, Dept. of Social Services, 406 Fed. App'x
890, 894-95 (5th Cir. 2010) (citing Elliott, 478 U.S. at
796)). See also Roth v. Koppers Indus., Inc., 993 F.2d
1058, 1062 (3d Cir. 1993) (“Following Elliott, the
courts of appeals have unanimously concluded that
unreviewed administrative agency findings can never be
accorded issue preclusive effect in subsequent Title VII
proceedings.”); McInnes v. California, 943 F.2d 1088,
1093-94 (9th Cir. 1991) (“The clear teaching of Elliott
8
is that in a Title VII action a prior state decision
enjoys preclusive effect only if rendered or reviewed by
a court.... In contrast, unreviewed administrative
determinations lack preclusive effect in a subsequent
Title VII action, regardless of any preclusive effect
state law might accord to them.”).
...
While unreviewed state administrative fact-finding is
never entitled to preclusive effect in actions under
Title VII, that is not so as to claims brought under
§ 1981. See Elliott, 474 U.S. at 796–97 (applying
collateral estoppel to state administrative
fact-findings for purposes of sections 1981 and 1983 but
not for purposes of Title VII, and explaining that
“Congress in enacting the Reconstruction civil rights
statutes, did not intend to create an exception to
general rules of preclusion”).
Johnson v. Mississippi Power Co., No. 3:13CV798TSL-JMR, 2014 WL
1153711, at *3 (S.D. Miss. Mar. 21, 2014).
In this case, it is
unclear from the record whether Toney appealed the decision of the
MDES to any court.
Toney did state in her deposition that she
appealed the decision of the ALJ to the “Fifth Circuit Court.”
However, there is no “Fifth Circuit Court” in Mississippi.
Moreover, the decision of the ALJ would not have been appealed
directly to a court; the next level of review would have been to
the Board of Review.
See Miss. Code. Ann. § 71-5-519 - 529.
An
adverse decision of the Board of Review could have been appealed
to the Circuit Court of the County in which Toney resides (i.e.,
the Circuit Court of Hinds County, in the First Judicial
District).
Miss. Code Ann. § 71-5-531.
Yet Toney, who was not
represented by counsel in the MDES proceeding, did not indicate
that there was an appeal to or from the Board of Review.
9
Lastly,
no documentary evidence has been presented evidencing an appeal to
any court.
All that is before the court is the testimony of
Toney, which is not consistent with the prescribed appeal
procedures.
Under the circumstances, for purposes of Toney’s
Title VII claim, the court is not persuaded that it would be
proper to accord preclusive effect to findings of the MDES.
See
Thomas, 406 Fed. App'x at 895 (declining to give ruling of state
unemployment compensation agency that the plaintiff's termination
was justified preclusive effect where it was not clear from the
record whether she had appealed that ruling to state court).
On the other hand, for purposes of her § 1981 claim,
collateral estoppel does preclude Toney from relitigating the
MDES’s finding that she engaged in misconduct, for which she was
terminated.
See Elliott, 474 U.S. at 796–97 (applying collateral
estoppel for purposes of claims under §§ 1981 and 1983 but not for
purposes of Title VII claim); Jett v. Dallas Indep. School Dist.,
798 F.2d 748, 763 n. 14 (5th Cir. 1986) (noting that in some
respects relief is available under Title VII where it is not under
§§ 1981 and 1983, and citing Elliott for recognition of difference
in application of collateral estoppel to the latter but not the
former); Johnson, 2014 WL 1153711, at *3 (concluding that
collateral estoppel did not apply to Title VII claim, but holding
as to § 1981 claim that “since Mississippi courts give preclusive
effect to the decisions of the MDES, if supported by the evidence
10
and in the absence of fraud, then so should this court”) (citing
Cox, 564 F.3d at 748).
However, it is clear from the undisputed
record evidence that Toney cannot avoid summary judgment,
irrespective of whether collateral estoppel precludes her from
relitigating whether she engaged in misconduct, for which she was
terminated.
That is, summary judgment is proper as to both her
Title VII and § 1981 claims; the only difference comes in the
specific reason why summary judgment is proper.
Section 1981
Based on the findings of the MDES, it is taken as established
for purposes of Toney’s § 1981 claim that she engaged in
misconduct that resulted in her termination.
Accordingly, she can
establish a prima facie case of discriminatory discharge only by
showing that employees outside her protected class were treated
more favorably under circumstances “nearly identical” to hers.
See Mayberry, 55 F.3d at 1090.
This, she cannot do.
The Fifth Circuit has explained what it means by “nearly
identical” as follows:
Employees with different supervisors, who work for
different divisions of a company or who were the subject
of adverse employment actions too remote in time from
that taken against the plaintiff generally will not be
deemed similarly situated. Likewise, employees who have
different work responsibilities or who are subjected to
adverse employment action for dissimilar violations are
not similarly situated. This is because we require that
an employee who proffers a fellow employee as a
comparator demonstrate that the employment actions at
issue were taken “under nearly identical circumstances.”
11
The employment actions being compared will be deemed to
have been taken under nearly identical circumstances
when the employees being compared held the same job or
responsibilities, shared the same supervisor or had
their employment status determined by the same person,
and have essentially comparable violation histories.
And, critically, the plaintiff's conduct that drew the
adverse employment decision must have been “nearly
identical” to that of the proffered comparator who
allegedly drew dissimilar employment decisions. If the
“difference between the plaintiff's conduct and that of
those alleged to be similarly situated accounts for the
difference in treatment received from the employer,” the
employees are not similarly situated for the purposes of
an employment discrimination analysis.
We do not, however, interpret “nearly identical” as
synonymous with “identical.” Applied to the broader
circumstances of a plaintiff's employment and that of
his proffered comparator, a requirement of complete or
total identity rather than near identity would be
essentially insurmountable, as it would only be in the
rarest of circumstances that the situations of two
employees would be totally identical. For example, it
is sufficient that the ultimate decisionmaker as to
employees' continued employment is the same individual,
even if the employees do not share an immediate
supervisor. Each employee's track record at the company
need not comprise the identical number of identical
infractions, albeit these records must be comparable.
As the Supreme Court has instructed, the similitude of
employee violations may turn on the “comparable
seriousness” of the offenses for which discipline was
meted out and not necessarily on how a company codes an
infraction under its rules and regulations. Otherwise,
an employer could avoid liability for discriminatory
practices simply by coding one employee's violation
differently from another's.
Lee v. Kansas City S. Ry. Co., 574 F.3d 253, 259-61 (5th Cir.
2009).
Toney argues that even if she violated Select Hospital’s
policy regarding unauthorized absence from her work station, she
12
was terminated for that single infraction while white nurses who
repeatedly engaged in similar or “even worse” misconduct were not.
In interrogatory responses, Toney broadly claimed that “similarly
situated white nurses ... were missing from the work area and
altogether absent on certain days, (and/or absent or extended
periods of time) yet they were not significantly reprimanded, nor
were they terminated under similar circumstances as me.”
Similarly, in her deposition, Toney testified generally that white
nurses were frequently missing from the floor without permission
for unknown periods of time and for unknown reasons without having
been disciplined, much less terminated.
She repeatedly
acknowledged, however, that she did not know why or how long these
other individuals were gone from the work area:
I can’t tell you how long they were gone. I can tell
you that they left the work area for periods of time and
no one knew where they were. Obviously they didn’t have
permission to leave. ...
...
I can’t tell you the period of time the nurses would
have been gone.
... I can’t tell you that they were
gone for five hours, but what I can tell you is if
they’re gone for ten minutes without permission, it’s –
it’s more than – well, it’s worse than what I did. I
had permission to leave. They were leaving without
permission. No one knew where they were.
She further stated:
It is correct that other white nurses have left the work
area unexplained without permission for whatever period
of time that they were gone and they were not
terminated.
...
13
[O]ther white nurses left the work area. It was not
explained as to where they went, why they went, and they
were not given permission. ... Whether they were gone
for five hours or whether they were gone for one hour,
white nurses were allowed to be out of the work area
without permission and were not terminated.
When asked about specific individuals who had engaged in such
alleged misconduct, Toney identified eight putative comparators:
Robert “Joseph” Simmons, Amanda Letchworth, Al Spilley, Cindy
Patterson, Patsy McMillan, Brian Buckley, Shannon Devine and Sarah
Myers.
Her evidence, however, is plainly insufficient to create a
genuine issue of material fact as to whether any of these
individuals could be found to be a proper comparator.3
As to Joseph Simmons, Toney claimed in interrogatory
responses that he was “frequently absent under similar
circumstances as I was absent” – a clearly conclusory assertion;
yet when asked about Simmons in her deposition, she testified only
that on several occasions, he was gone longer than thirty minutes
for his lunch breaks.
Amanda Letchworth, she testified,
“frequently left the unit and no one knew where she was for an
extended period of time ... more than thirty minutes ...
Her
patients are needing things and she’s not answering the call.
can’t tell you how long that was.”
3
I
However, she stated that she
In interrogatory responses, Toney additionally
identified as putative comparators Shelley Little, Pat Gardner,
Sheila Morris, Tamara Warnock, Amanda Bell, Angie Sandifer and
Leigh-Ane Hemphill. However, she has offered no evidence of any
infraction committed by any of these individuals.
14
“was not privy to ... information” about the circumstances of why
Letchworth was not in her work area.
In addition to her
testimony, Toney has offered disciplinary records for Letchworth
which reflect that from March through July 2011, Letchworth was
issued several verbal and written warnings for tardiness,
including one occasion when she was over thirty minutes late and
another when she was late and failed to call in.4
Toney testified that Al Spilley would “just be gone.
And the
same thing, patients needing things or nurses looking for him and
he would not be on the unit.”
Yet she could not say how long
Spilley would be gone and agreed that “[t]o tell you how long is
speculation.”
Toney similarly testified that Cindy Patterson
“would be gone”; she would “not be on the unit”; but as with the
others, she did not know why, or for how long Patterson would be
gone.
Toney stated in her deposition that Patsy McMillan was
“[f]requently out of the work area” but could not say for what
period of time or why McMillan was off the unit.
She did say that
McMillan was a heavy smoker and would take smoke breaks; but
according to Toney, she would be gone “longer than just smoking”
and “[l]onger than it should have been.”
4
Letchworth was terminated in November 2011 for violation
of the Hospital’s medication policies.
15
Regarding Brian Buckley, Toney stated that it was a “frequent
occurrence that he was not on the unit.”
In fact, she said, he
was “almost never where he was supposed to be” except for when the
supervisors were around; when they were around, he was “always
there and bubbly ... making it very known that he was there.”
Toney related that on one occasion, Shannon Devine was off the
unit for more than an hour.
She did not know why Devine was off
the unit; she knew only that Devine was being looked for.5
Finally, in interrogatory responses, Toney stated that Sarah
Myers “is reasonably believed to have been drug impaired and
missing from her work area.
She was frequently not at work until
late and/or absent from work (or the work area), and/or she was
frequently in an apparent impaired state....”
No specifics were
provided, however; and, when asked in her deposition whether she
was aware of the circumstances in which Myers was allegedly away
from the unit, Toney responded, “I don’t know why these people
leave the unit and don’t say—if they don’t tell me, I don’t have
any way of knowing.”
In her deposition, Toney did recall one
instance in which Sarah Myers could not be found.
5
According to
Disciplinary records show that Devine’s employment was
terminated in March 2013 following an incident in which she left
the building for a smoke break and took with her patient records
that needed to be charted. Devine apparently fell asleep in her
vehicle and returned to the floor two hours later. She was
terminated for removing patient records from the building against
Select Hospital policy.
16
Toney, “everybody was looking for Sarah, and she showed up coming
out of a room incoherent, all but foaming at the mouth, not – just
totally out of it.”
Toney said she did not know how long Myers
was missing, but that when she did reappear, it seemed to Toney
that Myers was on drugs.
Toney admitted she did not know whether
Myers was sent for a drug test or in any way disciplined for this
incident.6
Viewing the evidence in the light most favorable to Toney,
the proof shows, at most, that the putative comparators were
sometimes tardy, often took long lunch breaks or smoke breaks or
other breaks, or were otherwise absent from their work stations
without permission for unspecified periods of time, though in a
couple of cases, perhaps up to as long as an hour or two.7
It is
manifest that none of this conduct is of comparable seriousness to
Toney’s actions – as found by the MDES – of leaving the hospital
mid-shift and, after representing that she would be back before
her patients needed attending, failing to return, without
6
Toney also did not state when this incident occurred.
She does note that disciplinary records show that Myers was
terminated on November 30, 2009 due to a positive drug test.
7
In fact, Toney has presented no competent evidence that
any nurse was away from his or her work station without
permission. She has repeatedly asserted that these nurses were
absent without permission but has also generally acknowledged that
she was not aware of the specific circumstances of any of their
absences. The court, however, will assume for present purposes
that the proffered comparators were at times away from their
workstations without permission.
17
permission or explanation, for more than five hours, until after
her shift had ended.
Therefore, Select Hospital is entitled to
summary judgment on Toney’s § 1981 claim as she has failed to
proffer sufficient comparators and is thus unable to satisfy the
fourth element of her prima facie case for discriminatory
discharge.
Title VII
As stated, the court is unable at this time to conclude that
the findings of the MDES are binding on Toney for purposes of her
Title VII claim; and as to that claim, the court is of the opinion
that she can establish her prima facie case, as she has presented
sufficient evidence to create a genuine issue of fact as to
whether she violated defendant’s policies regarding unauthorized
absence from one’s workstation during the workday.
On this issue,
Toney explained in her deposition testimony that shortly before
midnight on January 15, 2013, she learned that she needed to be in
court the following afternoon to testify on behalf of her son.
She called in to the Hospital to see if she could be taken off the
schedule for the following day and was told no.
Therefore, she
reported for work, as scheduled, but right away told Joseph
Simmons, the charge nurse who was her immediate supervisor, that
she would need to leave that afternoon to take care of some
important personal business.
Toney states she worked through her
breaks and through lunch to make sure she got her patients fully
18
tended to, and around 2:30 p.m., let Simmons know she had done
rounds on her patients and was about to leave.
According to
Toney, she told Simmons she hoped to return before anything else
needed to be done on her patients; and Simmons agreed he would
care for her patients in her absence if they needed anything.
Toney explains that she had to turn her phone off while in court
and was not able to call in to the Hospital until 5:30 p.m.,
during a break.
When she did call in, she spoke with Josephine
Anderson, Chief Nursing Officer.
She explained to Anderson that
she was at court, giving testimony in a case - not her own – and
that court was not finished so she could not leave.
When court
ended, she returned to the hospital so that she could finish her
patients’ charts.
When she got there, though, she was told to
leave.
Select Hospital, through its Rule 30(b)(6) designee, Human
Resource Manager Vicki Watson, has agreed that if Toney, prior to
leaving, had finished the charting on her patients and had made
arrangements for another nurse to care for her patients for the
remainder of her shift and reported off on her patients, i.e.,
made sure the other nurse knew how to care for her patients, then
she would not have been in violation of Hospital policy and would
not have been terminated.
In the court’s opinion, given this
concession by the Hospital and Toney’s testimony that she did all
of these things, there is a disputed issue of fact as to whether
19
Toney has established her Title VII prima facie case of
discriminatory discharge.
However, Toney still cannot prevail on
this claim as she cannot rebut Select Hospital’s proffered
legitimate nondiscriminatory reason for her termination.
In this regard, the Hospital has not explicitly denied
Toney’s version of the events of January 16, 2013; that is, it has
not presented any evidence from Simmons to challenge what Toney
claims she told him or, in turn, what he told her.
It contends,
though, that in making the decision to terminate Toney’s
employment, it relied in good faith on the information related by
Simmons and Anderson to management, which led it to conclude that
Toney had violated the Hospital’s policies against unauthorized
absence.
Select Hospital has thus satisfied its burden to set
forth a legitimate nondiscriminatory reason for her termination.
Therefore, to avoid summary judgment, Toney is required to present
sufficient evidence from which a jury could reasonably infer that
the Hospital’s reason is merely pretextual.
“A plaintiff may establish pretext either through evidence of
disparate treatment or by showing that the employer's proffered
explanation is false or ‘unworthy of credence.’”
Laxton v. Gap
Inc., 333 F.3d 572, 578 (5th Cir. 2003) (citing Wallace v.
Methodist Hosp. Sys., 271 F.3d 212, 220 (5th Cir. 2001).
The
court has already concluded that Toney has failed to identify any
proper comparator and thus lacks proof of disparate treatment.
20
Accordingly, to establish pretext, she must show that the
Hospital’s proffered reason for her termination is untrue.
“An explanation is false or unworthy of credence if it is not
the real reason for the adverse employment action.”
Id.
However,
to establish pretext, it is not sufficient merely to show that the
Hospital was factually incorrect in its determination that Toney
violated company policy.
As the Fifth Circuit has made plain,
pretext is not established merely because the company
was mistaken in its belief, if honestly held. Whether
[the employer’s] conclusion was correct is irrelevant;
if [the employer’s] belief that [the plaintiff] violated
company policy motivated its discharge decision, then it
was not a pretext, and [the plaintiff] cannot meet [her]
evidentiary burden. See Waggoner v. City of Garland,
Tex., 987 F.2d 1160, 1166 (5th Cir. 1993) (“[The
plaintiff] must, instead, produce evidence demonstrating
that [the defendant] did not in good faith believe the
allegations, but relied on them in a bad faith pretext
to discriminate against him on the basis of his age.”)
Swenson v. Schwan's Consumer Brands N. Am., Inc., 500 Fed. App'x
343, 346 (5th Cir. 2012).
Here, while Toney has presented
evidence which tends to show that her actions did not violate
Hospital policy, she has no evidence to show that Select
Hospital’s belief that she violated policy, even if incorrect, was
not honestly held.
See id.
In an affidavit submitted in support of defendant’s motion,
Vicki Watson explained the circumstances which led Select Hospital
to conclude that Toney had committed a terminable offense.
Watson
relates that on the afternoon of January 16, Joseph Simmons, the
21
charge nurse, reported to her the following: that around 2:30
p.m., Toney had told him she needed to run an errand and would be
back before anything else was needed for her patients.
After an
hour and fifteen minutes, he realized she had not returned to
work.
At that point, he checked on her patients and discovered
that her hourly rounds were not completed, documentation was not
done, wound care was not completed, and none of the patient orders
were processed.
Simmons notified George Hemphill, the former
House Supervisor, of Toney’s absence, and the two of them, in
turn, notified Anderson, CNO, of Toney’s absence.
Watson states
that Simmons, Hemphill and Anderson reported to her that they
attempted to contact Toney by phone, but she did not answer her
cell phone and did not return any calls from them until 5:30 p.m.,
when she called into the Hospital.
Anderson, Watson states,
reported that upon calling in, Toney told Anderson she was in
court and had to turn off her cell phone; and when Anderson told
Toney she had left her patients uncared for and had left her shift
without telling anyone she would not be returning, Toney replied
she could not leave the court and abruptly hung up.
It was
determined that Toney did not return until after 8:00 p.m., after
her shift had ended.
Watson explains that upon further investigation, which
included an interview with Toney, she learned that Toney had known
before her shift started that she was required to attend court
22
that afternoon, and yet she chose to leave without telling anyone
where she was going or how long she would be gone or, more
particularly, that she might be absent for the rest of her shift.
As a result, the Hospital was left to scramble to assure critical
nursing care for Toney’s five seriously ill patients when it
realized she had not returned as stated.
Watson related the
facts, as she understood them, to Melinda Streif, Regional
Director of Human Resources, and the two determined that Toney’s
actions amounted to abandonment of her patients and warranted her
termination.
Toney insists that Simmons’ report that she left without
reporting on her patients and without providing for their care was
false and that consequently, the decision to terminate her was
based on incorrect information.
However, she has presented no
evidence to show that Select Hospital’s contrary belief,
incorrect, was not honestly held.
even if
Indeed, in her response, Toney
acknowledges that Anderson relied on what she was told by Simmons;
that Watson, in turn, had no reason to dispute that the
information provided to her by Simmons and Anderson was accurate;
and that Streif similarly had no reason to believe that Watson did
not, in fact, have reason to terminate her.
It follows that
plaintiff cannot carry her burden to show pretext and therefore,
Select Hospital is entitled to summary judgment on Toney’s Title
VII claim for discriminatory discharge.
23
Additional Discrimination Claims
In addition to her claims for discriminatory discharge, Toney
has alleged that she was subjected to discrimination in the terms
and conditions of her employment as she was (1) subjected to
disparate treatment in that white nurses received more favorable
schedule and work assignments; (2) “passed over for promotions by
those with less seniority and less qualifications than Plaintiff
even though Plaintiff was fully qualified”; and (3) subjected to a
hostile work environment.
In its motion, defendant has addressed
and provided ample evidence and argument supporting summary
judgment on each of these claims.
In her response, Toney has
offered no argument or evidence in opposition.
Therefore, for the
reasons assigned by Select Hospital in its motion, these claims
will be dismissed.
Breach of Contract
Toney alleges a breach of contract claim under state law
which is premised, it seems, on her allegation that she was
discharged because of her race.
Her claim fails as a matter of
law.
Mississippi adheres to the employment-at-will doctrine, which
holds that in the absence of an employment contract or when an
employment contract is for an indefinite term, the employment
relationship may be terminated at any point by either party.
Bobbitt v. Orchard, Ltd., 603 So. 2d 356, 360–61 (Miss. 1992).
24
Under the at-will employment doctrine, the employer or the
employee may terminate the employment relationship for “a good
reason, a wrong reason, or no reason.”
Id. (citation omitted).
It is undisputed that Toney did not have a written employment
contract and her employment was thus at-will.
Under Mississippi Law, the employment-at-will doctrine is
only limited by the following: (i) where there is a contract of
employment providing for a specific duration and termination
without just cause occurs before expiration of that duration, see
Rosen v. Gulf Shores, Inc., 610 So. 2d 366 (Miss. 1992); (ii)
where termination is retaliatory, because the employee reports or
refuses to participate in an unlawful act, see McArn v. Allied
Bruce-Terminix Co., 626 So. 2d 603 (Miss. 1993); and (iii) where a
handbook does not sufficiently preserve the at-will nature of
employment and the employer “completely ignores” specific
progressive disciplinary penalties for rule infractions, thus
giving rise to contractual obligations, see Bobbitt, 603 So. 2d
356.
See Byest v. Wal-Mart Stores, Inc., No. 4:13-CV-0009-DMB-
JMV, 2014 WL 3891295, at *7 (N.D. Miss. Aug. 7, 2014) (recognizing
three exceptions to at-will doctrine).
Plaintiff apparently
contends that her claim fits within the Bobbitt exception, not
because of any procedural rules or progressive discipline that
Select Hospital failed to follow but rather based on the provision
25
in Select Hospital’s employee handbook that prohibits
discrimination in employment.
In Bobbitt, the Mississippi Supreme Court held that when
employers distribute handbooks or policy manuals, they may create
contractual obligations that override the at-will nature of an
employment relationship.
603 so. 2d at 361.
The Bobbitt court
concluded that language in policy manuals or handbooks may create
an obligation on the part of the employer to “follow its
provisions in reprimanding, suspending or discharging an employee
for infractions specifically covered therein.”
Id.
The court
made clear, however, that this obligation is nullified when there
is an express disclaimer in the manual explaining that its terms
do not affect the employer's right to terminate the employee at
will.
See id. at 362.
Even if Toney had presented evidence of discrimination –
which she has not – Select Hospital’s anti-discrimination policy
cannot create a contract under Bobbitt, as its employee handbook
clearly states:
“Employment at Select Medical is at will.
This
means that either the employee or Select Medical has the right to
terminate employment at any time, and for any reason, with or
without cause and with or without notice.”
See Crawford v. Bannum
Place of Tupelo, 556 Fed. App'x 279, 284 (5th Cir. 2014)(antiretaliation provisions in employer’s handbook and Statement of
Work did not negate clear and unambiguous pronouncement in
26
employer’s handbook that employee Crawford was an at-will
employee).
Accordingly, Toney’s breach of contract claim will be
dismissed.
Intentional Infliction of Emotional Distress
Select Hospital has moved for summary judgment on Toney’s
claim for intentional infliction of emotional distress on the dual
bases that (1) she has failed to identify, much less present proof
of conduct rising to the level of extreme and outrageous conduct
required for a cognizable claim, see Raiola v. Chevron U.S.A.,
Inc., 872 So. 2d 79, 85 (Miss. Ct. App. 2004) (noting that “[o]nly
in the most unusual cases does the conduct move out of the realm
of an ordinary employment dispute into the classification of
extreme and outrageous, as required for the tort of intentional
infliction of emotional distress”); Pegues v. Emerson Elec. Co.,
913 F. Supp. 976, 982 (N.D. Miss. 1996) (holding that claims in an
employment setting are viable only when the employer’s conduct is
“so outrageous in character, and so extreme in degree, as to go
beyond all possible bounds of decency, and to be regarded as
atrocious, and utterly intolerable in a civilized community”); and
(2) she has not presented proof that she suffered the kind of
severe emotional distress needed to support such a claim, see
Rainer v. Wal-Mart Assocs., Inc., 119 So. 3d 398, 404 (Miss. Ct.
App. 2013) (stating that claim requires proof that plaintiff
“suffered severe emotional distress as a direct result of the
27
[acts] of the defendant”).
Defendant’s motion on this claim has
facial merit, and Toney has not responded in opposition.
Therefore, this claim will be dismissed.
Conclusion
Based on the foregoing, it is ordered that Select Hospital’s
motion for summary judgment is granted.
A separate judgment will be entered in accordance with Rule
58 of the Federal Rules of Civil Procedure.
SO ORDERED this 26th day of October, 2015.
/s/ Tom S. Lee
UNITED STATES DISTRICT JUDGE
28
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