Gladue v. Saint Francis Medical Center

Filing 124

MEMORANDUM AND ORDER..IT IS HEREBY ORDERED that the amended motion for summary judgment of defendant Saint Francis Medical Center [Doc. #113] is granted. IT IS FURTHER ORDERED that defendants motion for summary judgment[Doc. #90] is moot. IT IS FURTHER ORDERED that plaintiffs motion for summary judgment [Doc. #102] is denied. A separate judgment will be entered this same date. Signed by District Judge Carol E. Jackson on 6/18/15. (MRS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
SOUTHEASTERN DIVISION
MARIE THERESE GLADUE,
Plaintiff,
vs.
SAINT FRANCIS MEDICAL CENTER,
Defendant.

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Case No. 1:13-CV-186-CEJ

MEMORANDUM AND ORDER
The plaintiff brings this action asserting claims of employment discrimination
and unlawful retaliation, in violation of Title VII of the Civil Rights Act of 1964 (Title
VII), 42 U.S.C. § 2000e, et seq., and the Age Discrimination in Employment Act
(ADEA), 29 U.S.C. § 623, et seq. Presently before the Court are the parties’ crossmotions for summary judgment, pursuant to Fed. R. Civ. P. 56(a). The issues are
fully briefed.1
I.

Background

Defendant Saint Francis Medical Center is a private, Catholic hospital in Cape
Girardeau, Missouri. After hiring a consulting firm to perform an external review of
its Education Department in 2010, Saint Francis decided to create a new position
titled Director of Training and Development.

The Director would, among other

things, spearhead the department’s efforts to revise and enhance the hospital’s
medical education protocols and adopt best practices.

1

Plaintiff responded to defendant’s original motion for summary judgment, but not to the defendant’s
amended motion.
Nevertheless, because plaintiff’s response addresses the substance of the
arguments in the amended motion, the Court will consider the response as if directed to the amended
motion.

Plaintiff Marie Therese Gladue was fifty-two years old during the relevant
time period. She holds a Bachelor of Arts degree in International Studies, a Master
of Science degree in Training and Organizational Development, and a Master of
Business Administration.

Plaintiff has worked in the field of training and

development since at least 1992, but she had no experience working for a hospital
before she began working for Saint Francis.
Plaintiff was contacted by a recruiter on behalf of Saint Francis and was
invited to interview for the position. She was interviewed by Wayne Smith, Steven
Bjelich, Jeanette Fadler, Marilyn Curtis, Teri Kreitzer, and other staff. At Fadler’s
recommendation, Smith offered the job to plaintiff. Plaintiff was offered a starting
of $96,213.00, which she accepted without negotiation.
Plaintiff began her employment at Saint Francis on June 28, 2010. Initially
plaintiff reported to Smith and continued to do so until he resigned in September
2010.

Thereafter plaintiff reported to Fadler, the Vice President of Patient Care

Services, who is female and several years older than plaintiff.
In the first months after she was hired, plaintiff performed an assessment of
the Education Department and its staff, she created a business plan for the
department, and she began reorganizing the department to address the deficiencies
noted in the consultants’ report.

During the reorganization, two employees

complained to Fadler about plaintiff, but Fadler did not take any disciplinary action
against plaintiff based on those complaints.

In August 2011, plaintiff received a

positive performance evaluation from Fadler; her salary was then increased to
$100,131.00. Plaintiff was satisfied with her performance evaluation.

2

At some point, plaintiff reported to Fadler that she had heard a rumor that
some employees had referred to plaintiff as “a bitch” and “the devil.” Fadler told
plaintiff that such comments would not be tolerated, though no disciplinary action
was taken because the rumored employees were not identified.

It is undisputed

that Fadler never made any offensive or discriminatory comments about plaintiff or
other individuals.
Saint Francis has a policy prohibiting sexual harassment. The policy states
that complaints of sexual harassment are to be brought to the attention of the
Human Resources Manager, Nicole Chance, for investigation. It is undisputed that
plaintiff never filed a formal complaint of harassment, and she never lodged an
informal complaint of harassment or a complaint of discrimination before she was
terminated.

Other than reporting rumors of the derogatory remarks made about

her by unknown employees, plaintiff never complained of mistreatment by other
employees.
On November 1, 2011, plaintiff met with Chance.

They discussed rumors

that employees outside the Education Department were concerned that plaintiff
would attempt to have them fired.

Chance never made any offensive or

discriminatory comments about plaintiff’s age or religion. Plaintiff also admits that,
other than with regard to the investigation that ensued, plaintiff did not consider
any of Chance’s remarks to be offensive or discriminatory with regard to plaintiff’s
sex.
On

November

23,

2011,

Jessica

Riley,

who

was

one

of

plaintiff’s

subordinates, approached Chance to voice concerns about plaintiff. Though Riley
asked Chance not to act on her complaints, Chance prepared notes of their

3

meeting. Chance’s summary of the meeting with Riley is as follows: Riley “stated
that she was fearful of retaliation from Marie.” [Doc. #115-3 at 74–75] Riley felt
that “if her name is attached [to the investigation], her job would be [in] danger.”
Id. Riley reported that plaintiff had insisted on being allowed to attend a private
baby shower that Riley had planned even though she was not invited. When Riley
refused to permit plaintiff to attend, plaintiff continued to argue with her for an
hour and a half.

According to Riley, plaintiff’s “tone and body language became

aggressive several times,” and she said that she would attend the shower.

Id.

Plaintiff also said that former members of the department “had better not make the
situation tense, . . . or their jobs would be affected.” Id.
Chance brought Riley’s complaint to Fadler’s attention.
investigated the complaint.

Chance then

She met with Ashley Seabaugh and Elizabeth Stone,

two of plaintiff’s other subordinates, to discuss the matter, and she prepared notes
of the meetings.

Seabaugh told Chance that she was “very nervous talking to

[Chance] about [plaintiff], that she didn’t want to be ‘targeted’ for talking to
[Chance].”

[Doc. #115-3 at 77]

She recalled seeing plaintiff “turn on others if

they question a decision or do anything that [plaintiff] doesn’t approve.”

Id.

Seabaugh was “extremely nervous in th[e] meeting. . . . [H]er voice was very
shaky. When she talked about her concern of [plaintiff] finding out she provided
the information, tears were rolling down her face.” Id. Stone similarly reported to
Chance that she feared plaintiff and that it was a “very uncomfortable work
environment.” [Doc. #115-3 at 76]

4

Chance next prepared a memorandum to Fadler in which she summarized
her investigation and recommended that Saint Francis terminate plaintiff’s
employment. In pertinent part, the memorandum reads:
I feel strongly that Marie Gladue should not be allowed to remain in a
position of authority at Saint Francis Medical Center. . . . Employees
are clearly in fear of losing their jobs if they, in any way, displease
Marie and the evidence indicates that such fear may be justified. . . .
[T]his case is not an isolated one and there has been a trend of Marie
taking retaliatory actions against those individuals whom she felt had
slighted her. . . . Placing Marie back into the Director position . . . is
tantamount to telling employees that Saint Francis condones this
behavior and employees have no recourse when treated unfairly. I
don’t believe that is the message we want to send to our employees,
nor do these behaviors comply with the values of Saint Francis Medical
Center.
[Doc. #115-3 at 73]
Fadler

reviewed

Chance’s

memorandum

and

her

notes

from

the

investigation. Fadler then decided to terminate plaintiff’s employment. The notice
of termination, which Fadler prepared and Chance reviewed and signed, explained
that plaintiff was being terminated for:

“Verbally intimidating, coercing or

interfering with employees by engaging in behavior that has the effect of creating
an uncomfortable environment for others; meddling in the affairs of others. This
behavior cannot be tolerated by a leader of Saint Francis Medical Center.” [Doc.
#115-2 at 86]

Plaintiff was issued the termination notice during a meeting with

Chance and Fadler on December 27, 2011.

She signed the notice, and was

terminated immediately.
After plaintiff was terminated, Saint Francis again began a search to fill the
Director position.

The hospital hired Steven Firmland, a 51-year-old man, to

replace plaintiff. He began working in the training and development field in 1989.
He holds a Bachelor of Science in Political Science, a Master of Science in Political

5

Science, and a Doctorate of Management in Organizational Leadership.
had previously earned a salary of $150,000.00 as a consultant.

Firmland

Saint Francis

offered Firmland a starting salary of $100,000.00, but he negotiated his starting
salary to $109,000.00.

Firmland remains Director of the Education Department.

Because the department completed its adjustments following the consultants’
report, Firmland’s responsibilities as Director are not precisely the same as
plaintiff’s had been.
II.

Legal Standard

Rule 56(a) of the Federal Rules of Civil Procedure provides that summary
judgment shall be entered if the moving party shows “that there is no genuine
dispute as to any material fact and the movant is entitled to a judgment as a
matter of law.” In ruling on a motion for summary judgment the court is required
to view the facts in the light most favorable to the non-moving party and must give
that party the benefit of all reasonable inferences to be drawn from the underlying
facts. AgriStor Leasing v. Farrow, 826 F.2d 732, 734 (8th Cir. 1987). The moving
party bears the burden of showing both the absence of a genuine issue of material
fact and its entitlement to judgment as a matter of law. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242 (1986); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475
U.S. 574, 586–87 (1986).

Once the moving party has met its burden, the non-

moving party may not rest on the allegations of his pleadings but must set forth
specific facts, by affidavit or other evidence, showing that a genuine issue of
material fact exists. United of Omaha Life Ins. Co. v. Honea, 458 F.3d 788, 791
(8th Cir. 2006) (quoting Fed. R. Civ. P. 56(e)).

Rule 56 “mandates the entry of

summary judgment, after adequate time for discovery and upon motion, against a

6

party who fails to make a showing sufficient to establish the existence of an
element essential to that party’s case, and on which that party will bear the burden
of proof at trial.” Celotex Corporation v. Catrett, 477 U.S. 317, 322 (1986).
III.

Discussion
a. Disputed Material Facts

Though plaintiff disputes the majority of the facts asserted in Saint Francis’s
motion for summary judgment, the Court’s analysis is confined to those facts that
are material to the issue of whether the defendant is entitled to judgment as a
matter of law. See Dotson v. Delta Consol. Indus., Inc., 251 F.3d 780, 781 (8th
Cir. 2001); Bissonette v. Luskey, No. CIV. 02-335 ADM/AJB, 2003 WL 1700466, at
*2 (D. Minn. Mar. 27, 2003).

Moreover, the Court gives no weight to assertions

that are not supported by the evidence, that represent a misstatement of the
evidence, or that are based on speculation, because they do not create a genuine
fact dispute. See Fed. R. Civ. P. 56(c)(1), (3); White v. McDonnell Douglas Corp.,
904 F.2d 456, 458 (8th Cir. 1990) (per curiam); Brunskill v. Kan. City S. Ry. Co.,
No. 06-00205-CV-W-REL, 2008 WL 413281, at *1 (W.D. Mo. Feb. 12, 2008) aff’d,
331 F. App’x 426 (8th Cir. 2009); see also E.D. Mo. L.R. 4.01(E).
b. Plaintiff’s Claims
Title VII makes it “an unlawful employment practice for an employer . . . to
discharge any individual, or otherwise discriminate against any individual with
respect to his compensation, terms, conditions, or privileges of employment
because of such individual’s race, color, religion, sex, or national origin.” 42 U.S.C.
§ 2000e–2(a)(1). Title VII also makes it “an unlawful employment practice for an
employer to discriminate against any of his employees . . . because he has opposed

7

any practice made an unlawful employment practice by [Title VII] . . . .”
§ 2000e-3(a).

Id.

The ADEA similarly makes it “unlawful for an employer . . . to

discharge any individual . . . because of such individual’s age.” 29 U.S.C. § 623(a).
Plaintiff claims that Saint Francis terminated her employment because of her
religion, sex, and age. She also claims that the defendant retaliated against her for
opposing age discrimination and that she was subjected to unwelcome genderbased harassment.
i. The Decisionmaker
As a threshold matter the Court must address who decided to terminate
plaintiff.

It is undisputed that Fadler’s decision to terminate plaintiff was based

entirely on Chance’s investigation, a decision that Chance was then called upon to
ratify in her role as Human Resources Manager.

The legal term for plaintiff’s

proffered theory of imputed liability and proximate causation in the employment
discrimination context is “cat’s paw liability.”

Marez v. Saint-Gobain Containers,

Inc., 688 F.3d 958, 964–65 (8th Cir. 2012).

Under that theory, “if a non-

decisionmaker performs an act motivated by a discriminatory bias that is intended
to cause, and that does proximately cause, an adverse employment action, then
the employer has cat’s-paw liability.” Id. (quoting Torgerson v. City of Rochester,
643 F.3d 1031, 1045 (8th Cir. 2011)).

Furthermore, when the allegedly

discriminating individual is the person who conducted the investigation upon which
the

decisionmaker

established:

relied,

then

the

requisite

proximate

causation

may

be

“[I]f the independent investigation relies on facts provided by the

biased supervisor . . . then the employer (either directly or through the ultimate
decisionmaker) will have effectively delegated the factfinding portion of the

8

investigation to the biased supervisor.” Staub v. Proctor Hosp., 131 S. Ct. 1186,
1193 (2011). Because Fadler relied entirely on Chance’s investigation to make her
decision to terminate plaintiff, the Court draws the inference in plaintiff’s favor that
cat’s paw liability applies.

Plaintiff can avoid summary judgment if there is

evidence that either Fadler or Chance discriminated against her.
ii. Religion
Plaintiff alleges that Saint Francis discriminated against her when it
terminated her employment because of her religion, Catholicism. “[A]n employee
cannot

bring

a

discrimination

claim

without

first

exhausting

his

or

her

administrative remedies,” which requires raising that claim in a charge of
discrimination with the Equal Employment Opportunity Commission (EEOC). Briley
v. Carlin, 172 F.3d 567, 571 (8th Cir. 1999); see Shelton v. Boeing Co., 399 F.3d
909, 912 (8th Cir. 2005) (recognizing that exhaustion is required for both ADEA
and Title VII claims).

Though plaintiff filed a charge of discrimination and an

amended charge of discrimination with the EEOC, it is undisputed that she did not
allege that her religion was a basis for her termination in either of those charging
documents. Nor is plaintiff’s theory of religious discrimination “like or reasonably
related to” the claims of sex, age, disability, national origin, and genetic
discrimination, or retaliation and harassment, that she asserted in her charge and
amended charge. See Richter v. Advance Auto Parts, Inc., 686 F.3d 847, 852 (8th
Cir. 2012) (citing Wedow v. City of Kansas City, 442 F.3d 661 (8th Cir. 2006)).
Therefore, plaintiff’s Title VII religious discrimination claim fails as a matter of law,
and the Court will grant summary judgment to Saint Francis on that claim.

9

iii. Age discrimination
There is no direct evidence of age or sex discrimination in this case, nor is
there direct evidence of retaliation or harassment.

See Torgerson, 643 F.3d at

1045–46 (collecting cases and describing what constitutes direct evidence). Absent
direct evidence of discrimination, a plaintiff’s ADEA claim is analyzed under the
burden-shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792,
802–03 (1973).

See Tramp v. Associated Underwriters, Inc., 768 F.3d 793, 800

(8th Cir. 2014).
Under this framework, the plaintiff initially has the burden to establish a
prima facie case of discrimination. Pye v. Nu Aire, Inc., 641 F.3d 1011, 1019 (8th
Cir. 2011). A prima facie case creates a rebuttable presumption of discrimination.
The burden then shifts to the defendant to provide a legitimate, nondiscriminatory
reason for its decision. If the defendant provides such a reason, the presumption
disappears, and the burden shifts back to the plaintiff to show that the proffered
reason was pretext for discrimination. Id. (citing Lake v. Yellow Transp., Inc., 596
F.3d 871, 873–74 (8th Cir. 2010)).

“A plaintiff provides sufficient evidence of

pretext by showing that the employer’s explanation is unworthy of credence . . .
because it has no basis in fact . . . or by persuading the court that a prohibited
reason more likely motivated the employer.” Hilde v. City of Eveleth, 777 F.3d 998,
1004 (8th Cir. 2015) (quotation marks and citation omitted). The ultimate burden
of proving discrimination rests with the plaintiff. Id. In ADEA cases, that burden
requires a plaintiff to establish that age was the but-for cause of the adverse action.
Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 177–78 (2009).

10

To establish a prima facie case of age discrimination, a plaintiff must show
that:

“(1) [s]he was at least 40 years old; (2) [s]he was terminated; [and] (3)

[s]he was meeting [her] employer’s reasonable expectations at the time [s]he was
terminated . . . .” Haigh v. Gelita USA, Inc., 632 F.3d 464, 468 (8th Cir. 2011).
She must also put forth (4) “some additional evidence that age was a factor in the
employer’s termination decision.”

Tramp, 768 F.3d at 800.

Such additional

evidence is present when a plaintiff “was replaced by an individual who was
substantially younger.” Haigh, 632 F.3d at 468. It is undisputed that plaintiff was
within the protected age group during her employment and that she was
terminated from her position.

There is disagreement about whether plaintiff was

meeting her employer’s reasonable expectations at the time of the termination.
But even if this factor were not in dispute, plaintiff has not established a prima facie
case of age discrimination, as she has not presented “some additional evidence”
that her age was a factor in Saint Francis’s decision.
Plaintiff concedes that she never heard anyone make a derogatory remark
about her age. She offers instead only speculation that Chance, Riley, Seabaugh,
and Stone must have been influenced by plaintiff’s age because they “might have
recognized that the plaintiff was leading in an appropriate manner” if they had had
“more life experience.” [Doc. #102 at 5] (emphasis added). But speculation is not
evidence. Moreover, Fadler, the decisionmaker, is several years older than plaintiff,
which belies any suggestion that plaintiff’s age played a role in Fadler’s decision.
Though Chance was only 33 years old, there is no evidence that she considered
plaintiff’s age when she conducted the investigation, recommended termination, or
ratified Fadler’s decision. Furthermore, Firmland was 51 years old at the time he

11

was hired as plaintiff’s replacement, just one year younger than plaintiff. Thus,
plaintiff has not put forth evidence that “[s]he was replaced by an individual who
was substantially younger.” Haigh, 632 F.3d at 468.
Because plaintiff has failed to establish a prima facie case of age
discrimination, Saint Francis is entitled to judgment on plaintiff’s ADEA claim.
iv. Sex discrimination
Absent

direct

evidence

of

discrimination,

a

plaintiff’s

Title

VII

sex

discrimination claim is analyzed under the McDonnell Douglas framework. Pye, 641
F.3d at 1019. To establish a prima facie case of sex discrimination, a plaintiff must
show (1) she is a member of a protected class, (2) she met her employer’s
legitimate expectations, (3) she suffered an adverse employment action, and (4)
the circumstances give rise to an inference of discrimination. Id. (citing Wierman v.
Casey’s Gen. Stores, 638 F.3d 984, 993 (8th Cir. 2011)). “The required prima facie
showing is a flexible evidentiary standard, and a plaintiff can satisfy the fourth part
of the prima facie case in a variety of ways, such as by showing more-favorable
treatment of similarly-situated employees who are not in the protected class, or
biased comments by a decisionmaker.” Id. (citing Lewis v. Heartland Inns of Am.,
L.L.C., 591 F.3d 1033, 1039–40 (8th Cir. 2010) (internal quotation and citation
omitted).

The burden then shifts to the defendant to assert a legitimate,

nondiscriminatory reason for the adverse action, and then back to the plaintiff to
show pretext. Id. However, for sex discrimination claims under Title VII, a plaintiff
need not prove but-for causation, merely that her sex was a motivating factor in
the employer’s decision to terminate her. See 42 U.S.C. § 2000e–2(m); Univ. of
Tex. Sw. Med. Ctr. v. Nassar, 133 S. Ct. 2517, 2526 (2013).

12

The Court will assume without deciding that plaintiff has established a prima
facie case of sex discrimination. The undisputed evidence is that several employees
voiced complaints about plaintiff, and Saint Francis has proffered plaintiff’s
unacceptable behavior as a legitimate, non-discriminatory reason for terminating
her employment.

The burden shifts to plaintiff to show that this proffered reason

was a pretext for sex discrimination. No such showing is made here.
Plaintiff has not put forth any evidence showing that any similarly situated
male employee was treated more favorably than she for similar conduct. A plaintiff
“has the burden of demonstrating that there were individuals similarly situated in
all relevant aspects to her by a preponderance of the evidence.” Clark v. Runyon,
218 F.3d 915, 918 (8th Cir. 2000) (quotation marks and citation omitted).
“Individuals used for comparison must have dealt with the same supervisor, have
been subject to the same standards, and engaged in the same conduct without any
mitigating or distinguishing circumstances.” Johnson v. Securitas Sec. Servs. USA,
Inc., 769 F.3d 605, 613 (8th Cir. 2014) (quoting Clark, 218 F.3d at 918). Plaintiff
offers no evidence of male employees who were supervised by Fadler or who were
supervised or investigated by Chance and were not terminated for similar behavior.
The fact that some of the plaintiff’s job duties differed from those of
Firmland, her male successor, does not establish that the two were similarly
situated in all relevant respects and that he received better treatment. Id. It is
undisputed the differences in job duties resulted from the fact that plaintiff had to
implement the consultants’ report while that process was complete by the time
Firmland took his position. Nor is the difference in the starting salaries sufficient to
establish discrimination. Plaintiff did not attempt to negotiate the salary that was

13

offered to her.

In contrast, Firmland’s starting salary resulted from his rejecting

the initial offer and negotiating a higher amount. Plaintiff also fails to account for
the fact that Firmland has a doctoral degree, while her highest degree is at the
masters’ level, which could have easily justified the difference in compensation. No
reasonable juror could conclude based on those differences in job responsibilities
and salary that Chance or Fadler engaged in insidious sex discrimination by
replacing plaintiff with a man.
Plaintiff concedes that neither Chance nor Fadler ever made any derogatory
comments about her sex. Also, Chance, Fadler, Riley, Seabaugh, and Stone are all
women.

Absent evidence to the contrary, no reasonable juror could draw the

conclusion that, in a situation where all the key players to the termination are in
the same protected group, the protected characteristic was a motivating factor in
the termination decision.
Plaintiff admits that the investigation notes and Chance’s recommendation
were the “sole basis” for her termination. [Doc. #102 at 3] She then goes on to
say that the “investigation notes and recommendation for termination were laced
with language reflecting gender bias.”

Id.

But plaintiff does not identify the

language in the notes or the recommendation that evidences gender bias, and none
is apparent.
For all of those reasons, plaintiff has failed to establish that her performancebased termination was pretext for sex discrimination.

Therefore, Saint Francis is

entitled to summary judgment on plaintiff’s Title VII sex discrimination claim.

14

v. Retaliation
Retaliation claims are also subject to the McDonnell Douglas framework.
Clegg v. Ark. Dep’t of Corr., 496 F.3d 922, 928 (8th Cir. 2007).

“To establish a

prima facie case of retaliation, [a plaintiff] must show (1) she engaged in protected
conduct, (2) she suffered a materially adverse employment act, and (3) the
adverse act was causally linked to the protected conduct.”

Guimaraes v.

SuperValu, Inc., 674 F.3d 962, 978 (8th Cir. 2012). The defendant then has the
opportunity to put forth a legitimate, nondiscriminatory reason for the action, and
the plaintiff can rebut that reason with evidence of pretext.

Id.

“Title VII

retaliation claims require proof that the desire to retaliate was the but-for cause of
the challenged employment action.” Nassar, 133 S. Ct. at 2528.
Plaintiff claims that she was retaliated against for opposing discriminatory
conduct by some of Saint Francis’s employees. See Brannum v. Mo. Dep't of Corr.,
518 F.3d 542, 547 (8th Cir. 2008). The only specific allegation she raises is that
Saint Francis had a policy of requesting, but not requiring, applicants to submit
their birthdates on electronic job applications, which plaintiff believed violated the
ADEA.

See Guimaraes, 674 F.3d at 977–78 (holding that Title VII applies to

retaliation claims “broadly to cover opposition to employment actions that are not
unlawful, as long as the employee acted in a good faith, objectively reasonable
belief that the practices were unlawful.”). Plaintiff claims that she was terminated
because she reported her concerns to Chance.

Assuming arguendo that plaintiff

has established a prima facie case, she has not shown that the defendant’s
proffered reason for terminating her was a pretext for unlawful retaliation.

15

“Proof of pretext requires more substantial evidence than a prima facie case
because unlike evidence establishing a prima facie case, evidence of pretext . . .
[and retaliation] is viewed in light of the employer’s justification.”

Gibson v.

Geithner, 776 F.3d 536, 540 (8th Cir. 2015) (internal quotation marks and citation
omitted). “There are at least two routes for demonstrating a material question of
fact as to pretext: first, a plaintiff may succeed indirectly by showing the proffered
explanation has no basis in fact; or, second, a plaintiff can directly persuade the
court that a prohibited reason more likely motivated the employer.” Id. There is
no genuine dispute that Riley, Seabaugh, and Stone were afraid of retaliation by
plaintiff, so much so that Seabaugh began crying while explaining her fear that
plaintiff would find out she had spoken to Chance. Thus, Saint Francis’s proffered
explanation for the termination has a basis in fact.
Plaintiff has also not produced sufficient evidence that a reasonable jury
could

conclude

that

Saint

Francis

was

more

likely

than

not

(i.e.,

by

a

preponderance of the evidence) driven to terminate her because of her protected
conduct. See Gibson v. Am. Greetings Corp., 670 F.3d 844, 857 (8th Cir. 2012).
For example, plaintiff does not produce any actual evidence (as opposed to mere
conjecture) that other leaders of the hospital engaged in similar behavior but were
permitted to keep their jobs because they had not reported violations of the law.
Plaintiff attempts to show pretext by suggesting that Saint Francis violated
its internal policy manuals when it investigated and terminated her rather than
suspending her. But the hospital uses the policies as guidelines for the mine-run of
situations, and Saint Francis reserves the right to deviate from the policies, as it did
here. Moreover, an employer can “choose how to run its business, including not to

16

follow its own personnel policies regarding termination of an employee or handling
claims of discrimination, as long as it does not unlawfully discriminate in doing so.”
Guimaraes, 674 F.3d at 979 (citation omitted).

“The appropriate scope of

investigation is a business judgment, and shortcomings in an investigation do not
by themselves support an inference of discrimination.” McCullough v. Univ. of Ark.
for Med. Scis., 559 F.3d 855, 863 (8th Cir. 2009). Plaintiff does not provide any
evidence of other instances in which a similarly situated employee-leader who had
not engaged in protected activity was investigated for the same or similar conduct
and was suspended rather than immediately discharged.

Even if the hospital

deviated from its personnel policies, such would not establish pretext.
For these reasons, the Court concludes that Saint Francis is entitled to
summary judgment on plaintiff’s Title VII retaliation claim.
vi. Harassment
Finally, plaintiff claims that she was subject to discriminatory harassment by
her subordinates and other non-supervisory coworkers.
To establish a prima facie claim of hostile work environment by nonsupervisory co-workers, a plaintiff must show (1) that she belongs to a
protected group; (2) that she was subjected to unwelcome sexual
harassment; (3) that the harassment was based on her membership in
a protected group; (4) that the harassment affected a term, condition,
or privilege of her employment by creating a hostile work
environment; and (5) that the employer knew or should have known
about the harassment and failed to take proper remedial action.
Cross v. Prairie Meadows Racetrack & Casino, Inc., 615 F.3d 977, 981 (8th Cir.
2010). “The standard for demonstrating a hostile work environment on the basis of
sexual harassment is a demanding one.” Id. “Title VII does not prohibit all verbal
or physical harassment and [it] is not a general civility code for the American
workplace.” Nitsche v. CEO of Osage Valley Elec. Coop., 446 F.3d 841, 846 (8th

17

Cir. 2006) (internal quotations omitted).

“Actionable conduct must therefore be

extreme rather than merely rude or unpleasant.” Cross, 615 F.3d at 981.
“A plaintiff must establish that discriminatory intimidation, ridicule, and insult
permeated the workplace.” Id. “‘[C]omplaints attacking the ordinary tribulations of
the workplace, such as the sporadic use of abusive language, gender-related jokes,
and occasional teasing’ obtain no remedy.” Nitsche, 446 F.3d at 845–46 (quoting
Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998)). A court is to consider
the “totality of the circumstances, including the frequency and severity of the
conduct, whether it is physically threatening or humiliating, and whether it
unreasonably interferes with the plaintiff’s job performance” to “determine whether
a plaintiff has demonstrated a hostile work environment.” Cross, 615 F.3d at 981.
Moreover, “if the victim does not subjectively perceive the environment to be
abusive, the conduct has not actually altered the conditions of the victim’s
employment, and there is no Title VII violation.” Harris v. Forklift Sys., Inc., 510
U.S. 17, 21–22 (1993).
Plaintiff points to two derogatory statements attributed to unidentified
employees in which she was referred to as “a bitch” and “the devil.” She reported
those statements to Fadler, who informed her that such conduct would not be
tolerated. These isolated remarks constitute “sporadic use[s] of abusive language”
that are merely “rude or unpleasant,” and are not actionable under Title VII. Cross,
615 F.3d at 981; Nitsche, 446 F.3d at 845–46. No reasonable jury could find that
the terms, conditions, or privileges of plaintiff’s employment were affected by those
remarks.

All the more so because plaintiff considered the remarks mere “noise”

while she was still employed.

See Harris, 510 U.S. at 21–22.

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Accordingly, the

Court will grant summary judgment to Saint Francis on the Title VII harassment
claim.
*****
For the reasons discussed above,
IT IS HEREBY ORDERED that the amended motion for summary judgment
of defendant Saint Francis Medical Center [Doc. #113] is granted.
IT IS FURTHER ORDERED that defendant’s motion for summary judgment
[Doc. #90] is moot.
IT IS FURTHER ORDERED that plaintiff’s motion for summary judgment
[Doc. #102] is denied.
A separate judgment will be entered this same date.

CAROL E. JACKSON
UNITED STATES DISTRICT JUDGE
Dated this 18th day of June, 2015.

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