Beckley v. St. Luke's Episcopal-Presbyterian Hospitals

Filing 44

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that Defendant St. Luke's Motion for Summary Judgment (ECF No. 34 ) is GRANTED. An appropriate Judgment is filed herewith. Signed by District Judge Ronnie L. White on May 31, 2018. (BRP)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
)
)
)
Plaintiff,
)
)
v.
)
)
ST. LUKE'S
)
EPISCOPAL-PRESBYTERIAN HOSPITALS )
)
d/b/a ST. LUKE'S,
)
Defendant.
)

KAREN BECKLEY,

No. 4:17-CV-1369 RLW

MEMORANDUM AND ORDER
This matter is before the court on Defendant St. Luke's Motion for Summary Judgment
(ECF No. 34). This matter is fully briefed and ready for disposition.

BACKGROUND
Plaintiff Karen Beckley ("Beckley") was hired in March of 1995 as a Surgical Technician
in the Labor & Delivery Department of St. Luke's Episcopal-Presbyterian Hospitals d/b/a St.
Luke's (herein, "St. Luke's" or "Defendant"). (Defendant's Statement of Uncontroverted Facts
("DSOF"), ECF No. 36, ill).

A Surgical Technician is a non-licensed, non-degreed support

position with the principal job duty of passing instruments in the operating room. (DSOF, i12).
In 2012, Beckley sought out a full-time position as a Surgical Technician in the Operating Room
Department ("ORD"). (DSOF, i15). Beckley obtained the position as a Surgical Technician in
the ORD and remained in this position until her termination on March 20, 2015. (DSOF, ii8).
Ginny Babcock ("Babcock") promoted Beckley to the ORD, making her a full-time employee,

with the full understanding that Beckley was already on FMLA 1 leave and would need to take
additional FMLA leave in the future.

(DSOF, if47).

Beckley's departmental change was

accompanied by a change in some of her job responsibilities, including required "on-call" shifts.
(DSOF, ifif9- l 1). As a condition of "on call" shifts, Beckley was required to remain accessible
while off-duty during the shift. (DSOF, if12). Individuals scheduled for "on-call" shifts, had to
be able to report to work within approximately 30 minutes of receiving a call in order to respond
to an emergency situation. (DSOF, ifl4).
Following Beckley's first FMLA leave in the ORD, Babcock approved another
intermittent FMLA leave, running from February 2013 through August 2013. (DSOF, if48).
Later, Beckley applied for and was granted FMLA leave from April 2014 through April 2015.
(DSOF, if49). Beckley notified her supervisor on January 6, 2015 of her need to take FMLA
leave from December 31, 2014 through January 29, 2015. (DSOF, if71). Beckley's employment
was terminated on March 20, 2015. (Id.).
Beckley was reprimanded on multiple occasions, each time by a different Charge Nurse
regarding her failure to respond appropriately to emergency call requests. (DSOF, ifl6). Each
time Beckley was reprimanded, she was counseled on the appropriate on-call procedures and the
department's expectations.

(DSOF, ifl 7). Beckley was informed further work-related issues

would lead to higher levels of discipline, including possible termination. (DSOF, if18). Beckley
received a level 1 warning in March of 2014 for failing to respond to Charge Nurse Patty
Cowee's emergency call requests during her scheduled on-call service period. (DSOF, ifl 9).
Beckley admits that this discipline was unrelated to her taking FMLA. (DSOF, if20). Within 5
months of receiving this warning, Beckley received a Level 2 warning and then a Final Waming

1

FMLA refers to the Family and Medical Leave Act of 1993, 29 U.S.C. §§2601, et seq.
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for again failing to respond to on-call requests. (DSOF, if21 ). Beckley acknowledged that the
underlying facts concerning her discipline were correct as she failed to comply with the call-in
policy.

(DSOF, if22).

Each disciplinary action involved a different Charge Nurse, none of

whom had any role in Beckley's termination. (DSOF, if23).
Specifically, on March 13, 2014, Beckley was counseled for inattention to details.
(DSOF, if24). On another occasion, a student, working under Beckley's supervision, provided a
surgeon with a syringe containing an anti-coagulant, instead of saline water.

(DSOF, if25).

Beckley acknowledged that she was ultimately responsible for the mistake, including the
mislabeled syringe.

(DSOF, if26).

Babcock did not discipline Beckley for this event even

though, in Beckley's estimation, it was a "big deal". (DSOF, ifif27-28). During an open patient
gall bladder surgery on March 9, 2015, Beckley (1) became accidentally contaminated and failed
to follow Hospital sterility policy by walking into the sterile field twice, (2) used poor judgment
when counting surgical equipment during surgery, and (3) left the surgical team in the middle of
surgery for an extended period. (DSOF, if34).
Beckley was informed of her termination on March 20, 2015. (DSOF, if43). The notice
included her prior warnings, discipline, and a summary of events in the gall bladder surgery.
(DSOF, if44).

Both of Beckley's supervisors, Susan Miller ("Miller") and Babcock, were

responsible for Beckley's termination. (DSOF, if45).
On or around March 20, 2017, Beckley filed an action in St. Louis County, Missouri
Circuit Court alleging claims for Interference with FMLA Rights (Count I) and Retaliation in
Violation ofFMLA (Count II). (ECF No. 4). On April 21, 2017, Defendant removed this action
to federal court, asserting federal question jurisdiction under 28 U.S.C. §§1331. (ECF No. 1).
On July 20, 2017, this Court dismissed Count I of Beckley's Complaint. (ECF No. 19, 20). On

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March 9, 2018, Defendant filed the instant Motion for Summary Judgment as to Count II of her
Complaint. (ECF No. 34).

DISCUSSION
I.

MOTION FOR SUMMARY JUDGMENT

A. Standard of Review

The Court may grant a motion for summary judgment if "the pleadings, depositions,
answers to interrogatories, and admissions on file, together with the affidavits, if any, show that
there is no genuine issue as to any material fact and that the moving party is entitled to judgment
as a matter of law." Fed. R. Civ. P. 56(c); Celotex Corp. v. Citrate, 477 U.S. 317, 322 (1986);
Torgerson v. City of Rochester, 643 F.3d 1031, 1042 (8th Cir. 2011). The substantive law
determines which facts are critical and which are irrelevant. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248 (1986). Only disputes over facts that might affect the outcome will properly
preclude summary judgment. Id. Summary judgment is not proper if the evidence is such that a
reasonable jury could return a verdict for the nonmoving party. Id.
A moving party always bears the burden of informing the Court of the basis of its motion.
Celotex Corp., 477 U.S. at 323. Once the moving party discharges this burden, the nonmoving
party must set forth specific facts demonstrating that there is a dispute as to a genuine issue of
material fact, not the "mere existence of some alleged factual dispute." Fed. R. Civ. P. 56(e);
Anderson, 477 U.S. at 248. The nonmoving party may not rest upon mere allegations or denials
of his pleading. Id.
In passing on a motion for summary judgment, the Court must view the facts in the light
most favorable to the nonmoving party, and all justifiable inferences are to be drawn in his favor.
Celotex Corp., 477 U.S. at 331. The Court's function is not to weigh the evidence but to

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determine whether there is a genuine issue for trial. Anderson, 477 U.S. at 249. "'Credibility
determinations, the weighing of the evidence, and the drawing of legitimate inferences from the
facts are jury functions, not those of a judge."' Torgerson, 643 F.3d at 1042 (quoting Reeves v.
Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000)).
B. Discussion
1. FMLA Retaliation Claim Standard

The FMLA prohibits employers from discriminating against an employee for asserting
her rights under the Act. Stallings v. Hussmann Corp., 447 F.3d 1041, 1051 (8th Cir. 2006);
Darby v. Bratch, 287 F.3d 673, 679 (8th Cir. 2002) (citing 29 U.S.C. § 2615(a)(2)). "This

prohibition necessarily includes consideration of an employee's use of FMLA leave as a negative
factor in an employment action." Darby, 287 F.3d at 679. "Basing an adverse employment
action on an employee's use of leave ... is therefore actionable." Smith v. Allen Health Sys., Inc.,
302 F.3d 827, 832 (8th Cir.2002).
When an employee does not have direct evidence of retaliation, the Court analyzes her
FMLA retaliation claim under the McDonnell Douglas burden-shifting framework. Phillips v.
Mathews, 547 F.3d 905, 912 (8th Cir. 2008) (citing McDonnell Douglas Corp. v. Green, 411

U.S. 792, 802-06, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973)). A plaintiff must first establish a prima
facie case. "To establish a prima facie case of FMLA retaliation, an employee must show that
she engaged in activity protected under the Act, that she suffered an adverse employment action
by the employer, and that a causal connection existed between the employee's action and the
adverse employment action." Darby, 287 F.3d at 679 (citing Richmond v. ONEOK, Inc., 120
F.3d 205, 208 (10th Cir. 1997)). If a plaintiff is able to establish a prima facie case of retaliation,
the burden shifts to the defendant to come forward with evidence of a legitimate,

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nondiscriminatory reason for the adverse action. Phillips, 547 F.3d at 912. This burden "is not
onerous and the showing need not be made by a preponderance of the evidence." Wallace v.

Sparks Health Sys., 415 F.3d 853, 860 (8th Cir. 2005). If the defendant does so, the plaintiff must
come forward with evidence that creates an issue of fact as to whether the asserted reason was
pretext for discrimination.

Smith, 302 F.3d at 833. "Throughout this analysis, the ultimate

burden of persuasion remains with the plaintiff to show the termination was motivated by
intentional retaliation." Macias Soto v. Core-Mark Int'!, Inc., 521 F.3d 837, 841 (8th Cir. 2008)
(citing St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 508, 113 S.Ct. 2742, 125 L.Ed.2d 407
(1993)).

2. Discussion

Defendant argues that Beckley has failed to present evidence of retaliatory animus on the
part of the decision-makers or Beckley's co-workers. Beckley's supervisors, Miller and
Babcock, were responsible for the terminations of all surgical nurses assigned to the ORD,
including Beckley. Defendant contends that Beckley can offer no evidence that either Miller or
Babcock acted with retaliatory animus.

Beckley, however, claims she has evidence of discriminatory animus. Beckley asserts
that she routinely suffered adverse actions following her exercise of FMLA rights. (ECF No. 41
at 6). Beckley notes that she went on intermittent FMLA leave from August 4, 2014 through
November 3, 2014. On or around August 12, 2014, Beckley received a Level 2 Warning by
Babcock for an incident that "allegedly occurred on or about July 27, 2014." (ECF No. 41 at 6).
On August 25, 2014, Beckley was issued a final warning by Babcock and Miller for an incident
"that allegedly occurred on or about August 2, 2014." (ECF No. 41 at 6). Beckley points out

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that her final warning had a handwritten note at the bottom of the page, written by Babcock or
Miller that said, "Karen went on FMLA, Reason for delay of corrective action." (ECF No. 41 at
6). Then, one month after Beckley's intermittent FMLA leave ended, Beckley received a verbal
reprimand on or about December 4, 2014, regarding concerns about basic surgical techniques
and sterility.

(ECF No. 41 at 7).

Beckley again went on consecutive FMLA leave from

December 31, 2014 through January, 2015. (ECF No. 41 at 7). She went on intermittent leave
from January 20, 2015 through April 20, 2015. (ECF No. 41 at 7). One day after she began her
intermittent leave, Beckley received another verbal reprimand regarding concerns about sterility
technique. (ECF No. 41 at 7). Then, on March 20, 2015, Beckley was terminated while still on
intermittent FMLA leave. (ECF No. 41 at 7-8). Beckley claims that prior to her request for
FMLA leave while working in the ORD, she had not received specific complaints about her
ability to follow procedures.

Beckley claims that her situation is similar to that in Hite v.

Vermeer Mfg. Co., 446 F.3d 858 (8th Cir.2006), 2 and the mere timing of her FMLA leave

2

Denise R. Hite sued her employer, Vermeer Manufacturing Company ("Vermeer") and her
supervisor, Rick Leedom, for retaliation in violation of the Family and Medical Leave Act
(FMLA). The jury returned a verdict in favor of Hite and awarded her back pay. The district
court awarded Hite front pay, liquidated damages plus interest, and attorney's fees. The district
court' subsequently denied Vermeer's and Leedom's motions for judgment as a matter of law or
for a new trial and to amend or alter the judgment. The Court of Appeals denied the motions.
Hite v. Vermeer Mfg. Co., 446 F.3d 858, 861 (8th Cir. 2006). Importantly, the Eighth Circuit
outlined the parameters for using temporal proximity as evidence of causation in a FMLA
retaliation case:
An employee can establish a causal link between her protected activity and the
adverse employment action through "the timing of the two events." Eliserio v.
United Steelworkers of Am., 398 F.3d 1071, 1079 (8th Cir.2005). "A pattern of
adverse actions that occur just after protected activity can supply the extra
quantum of evidence to satisfy the causation requirement." Smith, 302 F.3d at
832. The mere coincidence of timing, however, is rarely sufficient to establish the
causation element. Haas v. Kelly Serv., Inc., 409 F.3d 1030, 1037 (8th Cir.2005).
Cases in which we have determined that temporal proximity alone was sufficient
to create an inference of the causal link "have uniformly held that the temporal
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relative to her reprimands and termination are sufficient to establish a causal connection. (ECF
No. 41 at 6-8).
Beckley also claims she has evidence of Defendant's retaliatory motive. (ECF No. 41 at
8). Beckley maintains that numerous employees made comments about her use of FMLA leave
and coworkers made jokes about her FMLA leave in front of management, including Babcock.
(ECF No. 41 at 8-9). Beckley asserts that other coworkers commented on her accrual of vacation
hours and earned time off (ETO), made "digs" at her regarding her use of FMLA leave, and
warned her against taking time off for FMLA leave because Defendant would "get rid of' her.
Beckley identifies an incident in support of her FMLA retaliation claim where Babcock inquired
if Beckley could schedule any of her doctor's visits during off-duty hours. Beckley also refers to
the incident when Miller allegedly took Beckley's return-to-work paperwork from the fax
machine and asked, "[w]hat is this FMLA too?" (ECF No 41 at 9). Beckley claims that, instead
of handing the paperwork to her, Miller said she would take care of it, "as if she 'more or less'
did not want to be bothered by" Beckley. (ECF No. 41 at 9).
Finally, Beckley claims she was reprimanded and/or disciplined for minor infractions for
which other coworkers were not reprimanded and/or disciplined.

(ECF No. 41 at 9).

For

example, Beckley testified that operating team members commonly took bathroom breaks during
procedures without reprimand, even though Beckley was reprimanded for taking a bathroom
break on March 10, 2015. (ECF No. 41 at 9-10). In addition, Beckley states that she had not

proximity must be 'very close.' " Wallace v. Sparks Health Sys., 415 F.3d 853,
859 (8th Cir. 2005).
Hite v. Vermeer Mfg. Co., 446 F.3d 858, 866 (8th Cir. 2006)

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been reprimanded for taking a bathroom break prior to her increased FMLA usage in the ORD.
(ECF No. 41 at 10). Similarly, Beckley claims that she was only reprimanded or written-up
regarding sterility issues, counts, on-call timeliness, and "any other procedure or policy" after her
increased FMLA usage.

(ECF No. 41 at 10).

In sum, Beckley claims that "the temporal

proximity between her protected activities and the adverse actions taken against her, the pattern
of adverse actions that occurred just after [her] protected actions, the discriminatory comments
made to [her] about her FMLA usage, and the escalating discipline imposed upon [her], this
Court should rule ... [that she] has established a causal link between the employee's exercise of
FMLA rights and her termination." (ECF No. 41 at 10).
Beckley further claims that she has provided evidence that the proffered legitimate
business decision for terminating her employment was mere pretext. Beckley states that she has
shown that Defendant "varied from its normal practice to address [her] situation." (ECF No. 41
at 12). For example, Beckley claims she was singled out for taking a bathroom break during a
procedure, even though there was no stated restroom policy. (ECF No. 41 at 12). Likewise,
Beckley points to the "strict treatment" she received compared to her coworkers regarding
sterility techniques, on-call timeliness, and in-procedure counts. (ECF No. 41 at 12-13). As
further evidence of pretext, Beckley claims that she did not receive such reprimands prior to her
increased use of FMLA leave. (ECF No. 41at13). Beckley also considers the warnings of her
coworkers against using FMLA leave as evidence of pretext. (ECF No. 41 at 13).
The Hospital, however, asserts that none of the events outlined by Beckley constitutes
evidence of FMLA retaliation. The Hospital told Beckley she was terminated for her conduct
during the March 9, 2015 surgical procedure (which included Beckley breaking sterility policy,
breaking scrub procedures, and use of poor judgment by emptying her mayo table to perform

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surgical counts) and based upon her previous progressive discipline and counseling. (DSOF,
172).

The Hospital notes that Beckley admitted to the conduct underlying her prev10us

reprimands, which placed her on a final warning. (DSOF, 173). The Hospital maintains that
Beckley admitted to leaving the operating room during the middle of the procedure and
remaining absent for over fifteen minutes, performing an equipment count in the middle of a
procedure that made the equipment less accessible to the surgeon, and becoming contaminated.
(DSOF, 174).
The Court holds that Beckley fails to state a claim for FMLA retaliation based upon the
undisputed evidence. Other than some temporal coincidences between her leave requests and
warnings she received, Beckley has failed to identify evidence that her FMLA leave had a causal
connection with her warnings received and her termination.

Beckley has not presented any

evidence that her supervisors, Babcock and Miller, discriminated against Beckley for using her
FMLA leave for a legitimate purpose. The Court holds that the mere temporal proximity of her
leave and the alleged retaliatory discipline she received is insufficient to show a "causal
connection." "Generally, more than a temporal connection between the protected conduct and
the adverse employment action is required to present a genuine factual issue on retaliation." Kiel
v. Select Artificials, Inc., 169 F.3d 1131, 1136 (8th Cir.1999) (en bane); Smith, 302 F.3d at 832).
In order for temporal proximity alone to be sufficient, "the temporal proximity must be very
close." Hite v. Vermeer Mfg. Co., 446 F.3d 858, 866 (8th Cir.2006) (internal quotation marks
omitted); see also Clark Cnty. Sch. Dist. v. Breeden, 532 U.S. 268, 273, 121 S.Ct. 1508, 149
L.Ed.2d 509 (2001) (per curiam). The Eighth Circuit "has not drawn a definitive line," and this
Court likewise finds no need to do so here. See Sisk v. Picture People, Inc., 669 F.3d 896, 90001 (8th Cir. 2012). Here, the temporal proximity is insufficient to create a factual dispute.

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Moreover, the Court notes that it would have been hard to discipline Beckley at any time without
it being temporally close to her leave requests, given the frequency that Beckley was on leave.
The Court also holds that Beckley has not provided any direct evidence of retaliation. Beckley
cites to general instances of people being aware of her FMLA leave status, but fails to cite to any
adverse statements made by supervisors. In fact, the only allegedly adverse experience she had
with a supervisor regarding her FMLA leave could easily be construed as that supervisor "taking
care of' the paperwork to process Beckley' s FMLA leave as she said she would. Therefore, the
Court holds that Beckley has not alleged direct evidence or a prima facie case of retaliation
because she has not alleged a causal connection between her FMLA leave and any adverse
employment action.
Likewise, Beckley has failed to demonstrate pretext as part of her second burden for a
retaliation claim under the McDonnell Douglas burden-shifting framework. Stallings, 447 F.3d at
1051.

Defendant has come forward with a legitimate, nondiscriminatory reason for firing

Beckley. Beckley, however, has failed to demonstrate that the stated reason for her termination
was merely pretextual for Defendant's retaliatory animus. "An employee may prove pretext by
demonstrating that the employer's proffered reason has no basis in fact, that the employee
received a favorable review shortly before he was terminated, that similarly situated employees
who did not engage in the protected activity were treated more leniently, that the employer
changed its explanation for why it fired the employee, or that the employer deviated from its
policies." Stalling., 447 F.3d at 1052. As the Court reviews Beckley's retaliation claim, it is
mindful that it does not "'sit as super-personnel departments reviewing the wisdom or fairness of
the business judgments made by employers, except to the extent those judgments involve

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intentional discrimination."' Stallings, 447 F.3d at 1052 (citing Hutson v. McDonnell Douglas

Corp., 63 F.3d 771, 781 (8th Cir.1995)).
The Court holds that Beckley has not identified any specific, similarly-situated
employees who were treated more favorably. See Smith, 302 F.3d at 835 ("An employee can
prove pretext by showing the employer meted out more lenient treatment to similarly situated
employees who were not in the protected class ... who did not engage in protected activity.").
Beckley's general reference to other employees who committed similar violations but were not
terminated does not suffice to create a pretextual inference. Beckley fails to come forwards with
any specific individual who was treated more favorably than her after similar disciplinary
violations.

Moreover, Defendant has never deviated from its stated reasons for terminating

Beckley. See Smith, 302 F.3d at 835 (quoting Kobrin v. Univ. of Minn., 34 F.3d 698, 703 (8th
Cir. 1994) ("Substantial changes over time in the employer's proffered reason for its employment
decision support a finding of pretext.").

In fact, Defendant provided ample evidence that

Beckley faced increasingly severe discipline for her infractions, was notified of the potential for
termination if her behavior continued, and then was terminated based upon her failure to rectify
her performance issues. Therefore, the Court grants summary judgment because Beckley failed
to demonstrate pretext.

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CONCLUSION
According! y,
IT IS HEREBY ORDERED that Defendant St. Luke's Motion for Summary Judgment
(ECF No. 34) is GRANTED.
An appropriate Judgment is filed herewith.

z1

/
Dated thi~ day of May, 2018.

RONNIE L. WHITE
UNITED STATES DISTRICT JUDGE

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