Oliver v. St. Luke's Dialysis LLC et al
Filing
42
Opinion and Order signed by Judge James S. Gwin on 8/11/11 granting defendants' motion for summary judgment. (Related Doc. 31 ) (M,G)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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GLORIA OLIVER,
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Plaintiff,
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v.
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ST. LUKE’S DIALYSIS, LLC d/b/a
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SHAKER SQUARE DIALYSIS, et al.,
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Defendants.
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CASE NO. 1:10-CV-2667
OPINION AND ORDER
[Resolving Doc. No. 31]
JAMES S. GWIN, UNITED STATES DISTRICT JUDGE:
In this age, race, and gender discrimination suit, Defendants St. Luke’s Dialysis, Janet
Hutchins, and Ann Vogt move for summary judgment on each of Plaintiff Gloria Oliver’s claims.
[Doc. 31.] The Defendants say Oliver’s claims that St. Luke’s Dialysis fired her because of her age,
race, and gender are unsupported by evidence, and that Oliver was instead fired because she
threatened a patient. [Doc. 31-1.] Plaintiff Oliver opposes the motion. [Doc. 38.] In deciding the
Defendants’ motion for summary judgment, then, the Court must consider whether Oliver shows that
she was fired because of her age, race, or gender.
For the following reasons, the Court GRANTS the Defendants’ motion.
I. Background
Plaintiff Gloria Oliver brings this discrimination action against her former employer St.
Luke’s Dialysis, LLC—a company that operates a kidney dialysis center in Shaker Heights,
Ohio—and her direct and regional supervisors at St. Luke’s, Janet Hutchins and Ann Vogt. [Doc.
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24.] Oliver, an African-American woman, worked as a patient care technician for St. Luke’s Dialysis
beginning in 1999. In August 2007, DaVita, Inc. acquired St. Luke’s. As part of that acquisition,
DaVita hired Oliver as a technician and kept her at the same pay level. Oliver was forty-nine years
old at the time she was hired.
Though Oliver says she received awards for excellent service during her employment at St.
Luke’s, [Doc. 31-3 at 31], she was also disciplined for several performance issues. In November
2007, Oliver received two written warnings, one for insubordination and the other for altering her
assignments without authorization. [Doc. 31-3 at 57-60.] In November 2008, Oliver received another
written warning for an attendance policy violation. [Doc. 31-3 at 54.] The written warnings noted
that “[a]ny violation going forth of behavior policy and procedure may lead to further corrective
action, suspension up to and including termination.” [Doc. 31-3 at 55, 58.]
Oliver incurred additional disciplinary action on September 15, 2009, when St. Luke’s Group
Facility Administrator Francesco Reale and a group of visiting pharmaceutical company
representatives heard Oliver say to a patient: “Are you bleeding all over the floor and not telling me?
I should slap you in the head.” [Doc. 31-3 at 23; Doc. 31-4 at 1-2.] Reale reported Oliver’s comment
to Defendant Janet Hutchins, a Facility Administrator, and to Human Resources representative
Yolanda Fowler. [Doc. 31-4 at 2.] When Reale and Hutchins spoke with Oliver about the incident,
Oliver admitted making the comment but said that she was merely joking with the patient, and that
the patient understood the joke. [Id.; Doc. 31-3 at 7, 23, 25, 61.] Oliver acknowledged, however, that
someone “could have misconstrued” her comment as a threat. [Doc. 31-3 at 26, 36.]
Later that day, St. Luke’s terminated Oliver for threatening a patient, citing the DaVita
company’s zero tolerance policy for workplace threats and Plaintiff Oliver’s history of disciplinary
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actions. [Doc. 31-3 at 59-60; Doc. 31-4 at 2-3 (failure to comply with “zero tolerance” policy for
workplace violence “may result in discipline, up to and including termination.”).] After her
termination, Oliver filed an age discrimination charge with the Ohio Civil Rights Commission.
[Doc. 31-2.] Oliver says she also filed the charge with the Equal Employment Opportunity
Commission. [Doc. 38 at 2-3.]
Oliver then brought the instant suit, alleging that the Defendants discriminated against her
on the basis of age, race, and gender. [Doc. 1-1; Doc. 24.] Oliver says circumstantial evidence
supports finding that St. Luke’s decision to discharge her was motivated by a prohibited animus.
Oliver contends that two St. Luke’s employees—Erica Moorer, a Caucasian female who Oliver says
was twenty-five years old at the time, and Tim Rhein, a Caucasian male who Oliver says was twentysix years old at the time—committed similar misconduct but were not similarly disciplined.
Specifically, Oliver says Rhein directly threatened a patient but was not terminated. [Doc. 31-3 at
30-33.] Oliver adds that she believes she was replaced by Lynette Fellows, who Oliver says was
twenty-five years old at the time and paid less than Oliver, because Fellows finished some of
Oliver’s work on the day of Oliver’s discharge. [Doc. 38 at 7; Doc. 38-1.]
The Defendants now move for summary judgment on Oliver’s claims. They say that St.
Luke’s legitimately fired Oliver for making statements to a patient that could be construed as a direct
threat. [Doc. 31-1.]
II. Legal Standard
Under Federal Rule of Civil Procedure 56(a), a grant of summary judgment is proper if “the
movant shows there is no dispute as to any material fact and the movant is entitled to judgment as
a matter of law.” Fed. R. Civ. 56(a). The moving party bears the initial burden to show the absence
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of a genuine dispute of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). This
burden is met by showing the court that there is an absence of evidence on a material fact on which
the nonmoving party has the ultimate burden of proof at trial. Id. at 325. The burden then shifts to
the nonmoving party to “come forward with some probative evidence to support its claim.” Lansing
Dairy, Inc. v. Espy, 39 F.3d 1339, 1347 (6th Cir. 1994). It is not sufficient for the nonmoving party
merely to show that there is some existence of doubt as to the material facts. See Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).
In deciding a motion for summary judgment, the Court “considers the facts in the light most
favorable to the nonmoving party and draws all reasonable inferences in favor of the nonmoving
party.” Lenscrafters, Inc. v. Robinson, 403 F.3d 798, 802 (6th Cir. 2005) (citations omitted).
III. Analysis
A. Age, Race, and Gender Discrimination Claims
Oliver brings claims for discriminatory termination based on her age, race, and gender, under
Ohio Revised Code § 4112.02 and the Age Discrimination in Employment Act.1 Because Oliver
bases her discrimination claims on circumstantial evidence, the Court evaluates those claims under
the McDonnell Douglas burden-shifting framework. See Aldridge v. City of Memphis, 404 F. App’x
29, 40 n.12 (6th Cir. 2010) (McDonnell Douglas proof structure applies to ADEA age discrimination
claim); Lockett v. Marsh USA, Inc., 354 F. App’x 984, 991-92 (6th Cir. 2009) (applying McDonnell
1
In her amended complaint, Oliver does not specify the state law or federal law basis for her gender
discrimination claim. Based on Oliver’s prior filings, the Court construes her claim as one brought under ORC
§ 4112.02, and clarifies that 42 U.S.C. § 1981 prohibits race, not gender, discrimination. The Court dismissed
Oliver’s gender discrimination claims under Title VII for failure to state a claim; Oliver’s amended complaint
asserts a race discrimination claim only under Ohio state law. Moreover, Oliver may bring her ADEA claim
only against St. Luke’s Dialysis, as the ADEA does not provide for individual liability. In any case, because
all of Oliver’s discrimination claims are subject to McDonnell Douglas’s burden-shifting test, the Court
analyzes them together.
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Douglas test to race, gender, and age discrimination claims brought under O.R.C. § 4112.02). Under
this test, a plaintiff must first establish a prima facie case of discrimination. The burden then shifts
to the defendant to articulate a legitimate, non-discriminatory reason for its actions. Finally, the
burden shifts back to the plaintiff to prove that the defendant’s offered reason was mere pretext for
discrimination. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-03 (1973).
1. Prima Facie Case
To establish a prima facie case of age, race, or gender discrimination, Oliver bears the burden
of demonstrating that (1) she was a member of a protected class; (2) she was qualified for her job;
(3) she suffered an adverse employment action; and (4) either she was replaced by a person outside
the protected class, or she was treated differently than a similarly-situated non-protected employee.
See, e.g., Mitchell v. Toledo Hosp., 964 F.2d 577, 582-83 (6th Cir. 1992); Harris v. Metro. Gov’t of
Nashville and Davidson Cnty., Tenn., 594 F.3d 476, 485 (6th Cir. 2010).
The Defendants do not dispute the first and third prongs of this test. Instead, they argue that
Oliver cannot show she was qualified for her job or that she was treated differently than any
similarly-situated younger, white, or male employees. To establish that she was “qualified” for a
position already held, an employee “must demonstrate that she was meeting her employer’s
legitimate expectations and was performing to her employer’s satisfaction.” Warfield v. Lebanon
Correctional Inst., 181 F.3d 723, 729 (6th Cir. 1999). “[W]hen assessing whether a plaintiff has met
her employer’s legitimate expectations at the prima facie stage of a termination case, a court must
examine plaintiff’s evidence independent of the nondiscriminatory reason ‘produced’ by the defense
as its reason for terminating plaintiff.” Cline v. Catholic Diocese of Toledo, 206 F.3d 651, 660-61
(6th Cir. 2000). In addition, to show disparate treatment, an employee must show that she was
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treated differently than individuals outside the protected class who are nearly identical in all relevant
respects. Noble v. Brinker Intern., Inc., 391 F.3d 715, 728-29 (6th Cir. 2004); Perry v. McGinnis,
209 F.3d 597, 601 (6th Cir. 2000) (Courts “should not demand exact correlation, but should instead
seek relevant similarity.”). Because Oliver offers insufficient admissible evidence to show that she
was treated differently from a similarly situated and non-protected employee, she fails to make out
a prima facie case of discrimination.
Oliver offers some material evidence that was qualified for her position at St. Luke’s: Oliver
says she received pins and gift cards for good work performance. [Doc. 31-3 at 86; Doc. 38-1 at 1.]
However, she does not provide sufficient admissible evidence to show that any similarly-situated St.
Luke’s employee was treated more favorably. Though Oliver says two younger, Caucasian, female
and male employees—Erica Moorer and Tim Rhein—used profanity around patients but were not
discharged, this comparison fails because Oliver was discharged for the more serious violation of
making statements perceived as direct threats to a patient. See Johnson v. Interstate Brands Corp.,
351 F. App’x 35, 40 (6th Cir. 2009) (finding conduct of similarly-situated employees “must be of
comparable seriousness—i.e., similar in kind and severity.” (citations omitted)). And, though Oliver
presents evidence that Rhein threatened a patient, [Doc. 31-3 at 34; Doc. 38-2], Oliver admits that
she did not report Rhein’s conduct and presents no admissible evidence that the relevant decision
makers at St. Luke’s even knew about Rhein’s threat.2 Cf. Johnson, 351 F. App’x at 39 (finding
2
This case is unlike Campbell v. Univ. of Akron, 211 F. App’x 333 (6th Cir. 2006), where the Sixth Circuit
found, based on evidence that an employer’s policy was commonly violated, a “juror could easily make the
small inferential step that the [employer] must have known” individuals similarly situated to the plaintiff
were violating the policy but were not similarly disciplined. Id. at 344. Here, Plaintiff Oliver’s arguments
would have this Court draw the larger and unjustified inference that the Defendants knew of Rhein’s threat
though Oliver says she did not report the incident, provides no evidence that anyone else reported it, and
does not present admissible evidence that Rhein’s behavior was so pervasive that the Defendants must have
known of it.
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whether plaintiff and similarly-situated coworker’s “discipline was determined by the same ultimate
decision makers” to be the relevant disparate treatment inquiry in discriminatory discharge).
Oliver’s additional conclusory assertion that she was replaced by a younger employee,
Lynette Fellows, is insufficient to support a prima facie case of age discrimination. Though evidence
that a plaintiff was discharged and replaced by a significantly younger employee may, in some cases,
support an inference of age discrimination, Oliver’s mere speculation that Fellows replaced her does
not warrant such an inference in this case. See Fed. R. Civ. P. 56(c)(4) (requiring party to set forth
specific facts that would be admissible in evidence to forestall summary judgment); Matsushita, 475
U.S. at 587 (same). In fact, Oliver admits that Fellows did not possess the required certifications to
perform Oliver’s job and that she does not know whether Fellows ultimately assumed Oliver’s
position or responsibilities. [Doc. 31-3 at 40]; see Clevidence v. Wayne Sav. Cmty. Bank, 143 F.
Supp. 2d 901, 908 (N.D. Ohio 2001) (“The first person who dealt with [the plaintiff’s]
responsibilities after her firing does not become a ‘replacement’ for the purpose of her prima facie
case. A person is considered ‘replaced’ when another employee is hired or reassigned to perform
the plaintiff’s duties.” (citation omitted)).
Accordingly, because Oliver fails to raise an issue of material fact as to whether she was
treated less favorably than a similarly-situated younger, Caucasian, or male employee or was
replaced by a significantly younger employee, Oliver has not made out a prima facie case of
discrimination.
2. Pretext
Moreover, even if Oliver could establish a prima facie case of age, race, or gender
discrimination, Oliver’s claims also fail at the pretext step. The Sixth Circuit has explained that “[a]t
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the summary judgment stage, the [pretext] issue is whether the plaintiff has produced evidence from
which a jury could reasonably doubt the employer’s explanation.” Chen v. Dow Chem. Co., 580
F.3d 394, 400 n.4 (6th Cir. 2009). The plaintiff has at least three avenues for showing pretext: “(1)
that the [employer’s] proffered reasons had no basis in fact, (2) that the proffered reasons did not
actually motivate the employer’s action, or (3) that they were insufficient to motivate the employer’s
action.” Id. at 400.
Here, the Defendants have enunciated a legitimate, nondiscriminatory reason for terminating
Oliver—that Oliver spoke to a patient in a manner that could be interpreted as a threat in front of St.
Luke’s supervisors, pharmaceutical representatives, and two trainees—and Oliver has not raised an
issue of material fact as to whether the Defendants’ stated reason is pretextual.
First, there is no evidence that the Defendants’ stated reason for terminating Oliver lacks a
factual basis, see id. at 400, as Oliver herself admits to making the statement and acknowledges that
the statement could be interpreted as a threat. In fact, Oliver says that her communication skills
needed improvement, a weakness she says contributed to the incident resulting in her discharge.
[Doc. 31-3 at 6-7.]
Second, Oliver’s evidence does not suggest that the Defendants’ stated reason did not
actually motivate the decision to terminate Oliver. See id.; see also Allen v. Highlands Hosp. Corp.,
545 F.3d 387, 396 (6th Cir. 2008) (plaintiff must show “the sheer weight of the circumstantial
evidence of discrimination makes it more likely than not that the employer’s explanation is a pretext”
(quoting Manzer v. Diamond Shamrock Chem. Co., 29 F.3d 1078, 1083-84 (6th Cir. 1994),
overruled in part on other grounds by Geiger v. Tower Automotive, 579 F.3d 614 (6th Cir. 2009))).
St. Luke’s disciplined Oliver several times for violating company policy and warned her that future
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violations could result in corrective action, suspension, or termination. When Facility Administrator
Reale, along with a group of visiting pharmaceutical representatives, overheard what Reale
interpreted as a direct threat to a patient, Reale and other St. Luke’s administrators discussed this
policy violation with Oliver, who admitted making the statement. Despite any understanding
between Oliver and the patient that she meant her comments as a joke, Oliver admits that those
unfamiliar with her communication style could interpret the statement as a threat. [Doc. 31-3 at 7,
26, 61.]
Third, the Defendants’ stated reason was sufficient to motivate the decision to terminate
Oliver. See Chen, 580 F.3d at 400. Previous disciplinary action against Oliver warned her of
possible discharge upon future company policy violations. And the DaVita company’s guidelines,
which apply to St. Luke’s employees, state that “[a]cts or threats of physical violence whether
expressed or implied” may result in discipline, “up to and including termination.” [Doc. 31-4 at 3.]
Oliver additionally argues that the Court must find the Defendants’ stated reason for firing
her is pretext for age discrimination because Defendant Hutchins stated that St. Luke’s could replace
Oliver with two lower-paid employees. [Doc. 38 at 13; Doc. 31-3 at 25.] But employment decisions
based on financial motivations, rather than age, do not support an age discrimination claim, and
Oliver offers only her own speculation that any such replacements would be younger employees.
[Doc. 38-1 at 3.] See Lyon v. Ohio Educ. Ass’n and Prof’l Staff Union, 53 F.3d 135, 138 (6th Cir.
1995) (plaintiff cannot recover for age discrimination where employee’s cost, rather than age,
motivated adverse employment action (citing Hazen Paper Co. v. Biggins, 507 U.S. 604 (1993));
see also Harris, 594 F.3d at 485 (plaintiff retains ultimate burden of showing “age was the ‘but-for’
cause of the employer’s adverse action.” (quoting Gross v. FBL Fin. Servs., Inc., --- U.S. ----, 129
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S. Ct. 2343, 2351 (2009)).
Thus, because Oliver does not present admissible evidence sufficient to raise an issue of
material fact as to whether the Defendants’ stated reason for terminating her was pretextual, her
claims fail as a matter of law.
B. Election of Remedies
As a separate matter, Plaintiff Oliver’s prior age discrimination charge to the Ohio Civil
Rights Commission precludes her from now bringing a state-law age discrimination claim. [Doc. 311 at 16.] Where a plaintiff has filed an age discrimination charge with the Ohio Civil Rights
Commission, Ohio’s election of remedies scheme generally prohibits a later civil suit for age
discrimination. O.R.C. § 4112.05; Hillery v. Fifth Third Bank, No. 2:08CV1045, 2009 WL
1322304, at *2-5 (S.D. Ohio May 11, 2009); Senter v. Hillside Acres Nursing Ctr. of Willard, 335
F. Supp. 2d 836, 851 (N.D. Ohio 2004). Several exceptions to this scheme allow a plaintiff to bring
a later state law age discrimination claim—including where the plaintiff files the Ohio Civil Rights
Commission charge contemporaneously or after the civil lawsuit, or files the charge only for
procedural purposes. Hillery, 2009 WL 1322304, at *3. However, Oliver’s age discrimination
charge to the Ohio Civil Rights Commission expressly notes that filing the charge bars Oliver from
instituting later civil action. [Doc. 31-2 at 7.] And Oliver has presented no evidence—nor does she
make any argument in opposition to summary judgment—suggesting that any of these exceptions
applies in this case. Accordingly, the Court grants summary judgment to the Defendants on Oliver’s
state-law age discrimination claim on these grounds, as well.
C. State-Law Claims against Defendants Vogt and Hutchins
Lastly, Defendants Vogt and Hutchins argue that Plaintiff Oliver’s state-law discrimination
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claims against them must fail because Oliver presents no evidence that either Vogt or Hutchins made
the decision to fire Oliver. [Doc. 31-1 at 19.] The Court notes that Defendant Hutchins’s role in
investigating Oliver’s threat, and Hutchins’s signature on Oliver’s termination letter, likely creates
an issue of material fact at least as to Hutchins’s involvement in Oliver’s discharge. However,
because Oliver fails to make out a prima facie case of discrimination and fails to show that the stated
reason for firing her was pretextual, summary judgment is proper as to all the Defendants.
IV. Conclusion
For the foregoing reasons, the Court GRANTS the Defendants’ motion for summary
judgment.
IT IS SO ORDERED.
s/
James S. Gwin
JAMES S. GWIN
UNITED STATES DISTRICT JUDGE
Dated: August 11, 2011
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