Myers et al v. Marietta Memorial Hospital
Filing
31
ORDER denying 17 Motion for Summary Judgment. Signed by Judge Algenon L. Marbley on 3/18/2019. (cw)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
LYNNETT MYERS,
Plaintiff,
v.
MEMORIAL HEALTH SYSTEM
MARIETTA MEMORIAL HOSPITAL,
Defendant.
:
:
:
:
:
:
:
:
:
:
Case No. 2:17-CV-438
JUDGE ALGENON L. MARBLEY
Magistrate Judge Chelsey M. Vascura
OPINION & ORDER
This matter comes before the Court on Defendant’s Motion for Summary Judgment.
(ECF No. 17). For the reasons below, Defendant’s Motion is DENIED.
I.
BACKGROUND
Plaintiff Lynnett Myers worked for Defendant Marietta Hospital as a nurse before she
resigned in October 2015. She is also the lead plaintiff in a Fair Labor Standards Act (FLSA)
collective action against Defendant. See Myers v. Marietta Memorial Health System, 15-CV2956. Plaintiff and others allege Defendants systematically deducted a thirty-minute lunch from
the paychecks of their employees without regard to whether that lunch was actually taken.
In this case, however, Plaintiff alleges Defendant retaliated against her for bringing the
Myers collective action by creating a hostile work environment and by interfering with a position
she had agreed to with a travel nursing organization called Jackson Nursing (“Jackson”).
Defendants argue that Plaintiff resigned and so cannot maintain an FLSA retaliation claim, and
that the Hospital cannot be liable because it did not know of the Myers collective action nor of
Plaintiff’s plans to work for Jackson.
II.
STANDARD OF REVIEW
A. Summary Judgment
Federal Rule of Civil Procedure 56(a) provides, in relevant part, that summary judgment
is appropriate “if the movant shows that there is no genuine issue as to any material fact and the
movant is entitled to judgment as a matter of law.” A fact is deemed material only if it “might
affect the outcome of the lawsuit under the governing substantive law.” Wiley v. United States,
20 F.3d 222, 224 (6th Cir. 1994) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986)). The nonmoving party must then present “significant probative evidence” to show that
“there is [more than] some metaphysical doubt as to the material facts.” Moore v. Philip Morris
Cos., Inc., 8 F.3d 335, 340 (6th Cir. 1993). The mere possibility of a factual dispute is
insufficient to defeat a motion for summary judgment. See Mitchell v. Toledo Hospital, 964 F.2d
577, 582 (6th Cir. 1992). Summary judgment is inappropriate, however, “if the dispute about a
material fact is ‘genuine,’ that is, if the evidence is such that a reasonable jury could return a
verdict for the nonmoving party.” Anderson, 477 U.S. at 248.
The necessary inquiry for this Court is “whether ‘the evidence presents a sufficient
disagreement to require submission to a jury or whether it is so one-sided that one party must
prevail as a matter of law.’” Patton v. Bearden, 8 F.3d 343, 346 (6th Cir. 1993) (quoting
Anderson, 477 U.S. at 251-52). The mere existence of a scintilla of evidence in support of the
opposing party’s position will be insufficient to survive the motion; there must be evidence on
which the jury could reasonably find for the opposing party. See Anderson, 477 U.S. at 251;
Copeland v. Machulis, 57 F.3d 476, 479 (6th Cir. 1995). It is proper to enter summary judgment
against a 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.”
2
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Where the nonmoving party has “failed to
make a sufficient showing on an essential element of her case with respect to which she has the
burden of proof,” the moving party is entitled to judgment as a matter of law. Celotex, 477 U.S.
at 322 (quoting Anderson, 477 U.S. at 250).
In evaluating a motion for summary judgment, the evidence must be viewed in the light
most favorable to the nonmoving party. S.E.C. v. Sierra Brokerage Servs., Inc., 712 F.3d 321,
327 (6th Cir. 2013). Therefore, for purposes of Defendants’ Motion, the Court will view the facts
in the light most favorable to Plaintiffs.
B. FLSA Retaliation Claim
The Fair Labor Standards Act makes it unlawful to “discharge or in any other manner
discriminate against any employee because such employee has filed any complaint or instituted
… any proceeding under or related to this chapter….” 29 U.S.C. § 215(a)(3). A plaintiff alleging
retaliation under the FLSA may offer either direct or circumstantial evidence to support her case.
In discrimination cases, “direct evidence is that evidence which, if believed, requires the
conclusion that unlawful discrimination was at least a motivating factor in the employer’s
actions.” Jacklyn v. Schering-Plough Healthcare Products Sales Corp., 176 F.3d 921, 926 (6th
Cir. 1999). See also Mansfield v. City of Murfreesboro, 706 Fed. Appx. 231, 235 (6th Cir. 2017)
(unpublished) (describing direct evidence in the context of FLSA claims). In most cases, the
plaintiff “will be able to produce direct evidence that the decision-making officials knew of the
plaintiff’s protected activity…[b]ut direct evidence of such knowledge or awareness is not
required….” Mulhall v. Ashcroft, 287 F.3d 543, 554 (6th Cir. 2002). Instead, a plaintiff may
instead present circumstantial evidence which tends to show an improper reason for her
3
dismissal. If the plaintiff is offering circumstantial evidence, the court engages in the familiar
McDonnell Douglas burden-shifting analysis.
The Supreme Court established a burden-shifting analysis in McDonnell Douglas Corp.
v. Green, 411 U.S. 792 (1973), and the Sixth Circuit has applied that burden-shifting to FLSA
retaliation claims. Moore v. Freeman, 355 F.3d 558 (6th Cir. 2004). This familiar test has four
parts. To establish a prima facie case of retaliation, an employee must prove: (1) she was
engaged in a protected activity under the FLSA; (2) her exercise of this right was known by the
employer; (3) she was the subject of an adverse employment action; and (4) there is a causal
connection between the protected activity and the adverse employment action. See Williams v.
Gen. Motors Corp., 187 F.3d 553, 568 (6th Cir. 1999). A prima facie showing of retaliation
“creates a presumption that the employer unlawfully discriminated against the employee.” St.
Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 506 (1993). If the plaintiff can establish such a case,
the burden then shifts to the defendant to offer a legitimate, non-discriminatory – or, as here,
non-retaliatory – reason for the adverse employment action. McDonnell Douglas, 411 U.S. at
802. If the employer is able to do this, the burden shifts back to the plaintiff, who must now
prove by a preponderance of the evidence that the proffered reasons were mere pretext and not
the true reasons for the adverse action. Kocsis v. Multi-Care Mgmt., Inc., 97 F.3d 876, 883 (6th
Cir. 1996). See also Adair v. Charter Cty. of Wayne, 452 F.3d 482, 489 (6th Cir. 2006).
C. Tortious Interference
Ohio recognizes both the torts of interference with a business relationship and
interference with contract rights. These torts “generally occur when a person, without privilege
to do so, induces or otherwise purposely causes a third person not to enter into or continue a
business relation with another, or not to perform a contract with another.” A & B-Abell Elevator
4
Co. v. Columbus/Cent. Ohio Bldg. & Constr. Trades Council, 1995-Ohio-66. Although the two
torts are similar, tortious interference with a business relationship “occurs when the result of the
improper interference is not the breach of a contract, but the refusal of a third party to enter into
or continue a business relationship with the plaintiff.” Franklin Tractor Sales v. New Holland
North America, Inc., 106 Fed. Appx. 342, n.1 (6th Cir. 2004). See also Super Sulky, Inc. v. U.S.
Trotting Ass’n, 174 F.3d 733, 741 (6th Cir. 1999) (distinguishing between the elements of each
tort). Plaintiff here has pleaded tortious interference with a business relationship.
III.
ANALYSIS
A. FLSA Retaliation Claim
Both parties present their arguments in the framework of the McDonnell Douglas burdenshifting analysis.
1. Protected Activity
The first question is whether Plaintiff engaged in activity that is protected under the
FLSA. Plaintiff did not file the underlying collective action Myers until after she resigned from
employment with Defendant. Nevertheless, she still engaged in protected activity within the
meaning of the FLSA. A complaint need not be reduced to writing and be filed with the Courts
to constitute a complaint that puts an employer on notice. Even an informal complaint to a
supervisor can constitute protected activity. In E.E.O.C. v. Romero Community Schools, the
Sixth Circuit reversed a district court’s finding as clearly erroneous when it concluded that a
plaintiff must have instituted formal proceedings with the E.E.O.C to have undertaken protected
activity. 976 F.2d 985, 989. Before the plaintiff “filed her charge” with the E.E.O.C., she “had
complained to the school district of unlawful sex discrimination and had told them she believed
they were ‘breaking some sort of law’ by paying her lower wages.” Id. As a result, she had
5
engaged in protected activity and the District Court clearly erred by granting the defendants
summary judgment. Id. It is the “assertion of statutory rights which is the triggering factor, not
the filing of a formal complaint.” Id.
Here, Plaintiff Myers engaged in protected activity when she raised with her supervisors
the issue of the automatic lunch deduction, which her deposition testimony indicates she did
multiple times during her employment. There is no genuine dispute as to this element.
2. Employer Knew of the Activity
The second part of the analysis is to determine whether Defendant knew of Plaintiff’s
participation in FLSA protected activity. In many cases, a plaintiff will have direct evidence of
the decision-maker’s knowledge, because, for example, that decision-maker was the supervisor
to whom they had previously made complaints. But such direct evidence is not necessary, and “a
plaintiff may survive summary judgment by producing circumstantial evidence to establish this
element of her claim.” Mulhall, 287 F.3d at 552. At least one district court inferred knowledge
about a plaintiff’s protected activity “from evidence of the prior interaction of individuals with
such knowledge and those taking the adverse employment action.” Id. at 553 (citing Kralowec v.
Prince George’s County, Maryland, 503 F. Supp. 985 (D. Md. 1980), aff’d 679 F.2d 883 (4th.
Cir), cert. denied 459 US. 872 (1982). In Kralowec, the court concluded it was “highly
improbable” that the two parties – the one to whom the plaintiff complained and the one who
eventually dismissed the plaintiff – “would not have discussed the plaintiff’s complaint as soon
as” they learned of it. Mulhall at 553 (citing Kralowec at 1010).
Here, the record reflects that Plaintiff had raised with her supervisors concerns about the
lunch deduction policy, and that she had tried to put Defendant on notice that changes needed to
be made. (ECF No. 18, Ex. 2 at 12:21-22). It would be reasonable to conclude from this record
6
that a decision-maker knew of these actions by Plaintiff when they engaged in what she terms
“retaliation” and when they engaged in practices that created a hostile work environment. There
remains uncertainty on the record about precisely which decision-makers knew which key facts,
however, and as a result, there remains a genuine dispute of material fact on this element.
3. Plaintiff Was the Subject of an Adverse Employment Action
The Sixth Circuit, adopting a test from the Seventh Circuit, defines a “materially
adverse” employment action as a
change in the terms and conditions of employment must be more disruptive than a
mere inconvenience or an alteration of job responsibilities. A materially adverse
change might be indicated by a termination of employment, a demotion evidenced
by a decrease in wage or salary, a less distinguished title, a material loss of
benefits, significantly diminished material responsibilities, or other indices that
might be unique to a particular situation.
Hollins v. Atlantic Co., Inc., 188 F.3d 652, 662 (6th Cir. 1999) (adopting these factors in the
Title VII context); see also Bowmann v. Shawnee State University, 220 F.3d 456, 461 (6th Cir.
2000) (same); Pettit v. Steppingstone, Center for the Potentially Gifted, 429 Fed. Appx. 524, 532
(6th Cir. 2011) (unpublished) (applying these factors to an FLSA claim).
In this case, Plaintiff testified about the difficult work environment, and about being
reprimanded for clocking “no lunch” when she accurately recorded on her time sheet that she did
not receive an uninterrupted thirty-minute lunch. See e.g. ECF No. 18, Ex. 2 at 29:16-20. And in
her complaint, she alleges that in addition to the reprimands and “hostile work environment,” she
was also constructively discharged and blacklisted when Defendant prevented Jackson Nursing
from hiring her.
Plaintiff has met her burden of demonstrating that she was subjected to a materially
adverse employment action. To do so, she must “show that a reasonable employee would have
found the challenged action materially adverse, which in this context means it might well have
7
dissuaded a reasonable worker from making or supporting a charge…” Pettit, 429 Fed. Appx. at
531-32. Plaintiff testified that after she complained to her supervisor about the automatic lunch
deduction, she was reprimanded, and as discussed infra, §IIIB, she was unable to take a
previously agreed-upon position with Jackson after she resigned. Her paperwork also included a
recommendation against re-hiring her. A reasonable worker could view these actions by the
employer as disincentives to challenge the automatic lunch deduction, and as a result, Plaintiff
was subject to a materially adverse employment action.
4. There Was a Causal Connection
The fourth step of the analysis concerns whether there was a causal connection between
the plaintiff’s protected activity and the adverse employment action. A plaintiff can demonstrate
a causal connection either through direct evidence or “through knowledge coupled with a
closeness in time that creates an inference of causation.” Parnell v. West, 1997 WL 271751 at *3
(6th Cir. 1997) (unpublished) (citing Wrenn v. Gould, 808 F.2d 493, 501 (6th Cir. 1987). For the
plaintiff to meet their burden, “temporal proximity, when coupled with other facts, may be
sufficient in certain cases to establish the causal-connection prong…” Mulhall, 287 F.3d at 551.
No single piece of circumstantial evidence is dispositive, but “evidence that the defendant treated
the plaintiff differently from identically-situated employees or that adverse action was taken
shortly after the plaintiff’s exercise of protected rights is relevant to causation.” Allen v.
Michigan Dept. of Corrections, 165 F.3d 405, 413 (6th Cir. 1999).
The question for courts has been how much proximity is required. The Sixth Circuit has
reasoned that a “time lag of seven months does not necessarily support an inference of a causal
link; previous cases that have permitted a prima facie case to be made based on the proximity of
time have all been short periods of time, usually less than six months.” Parnell at *3. However,
8
when the other supporting evidence has been compelling, this Circuit has found a temporal
connection even when the time lapse was fifteen months. Harrison v. Metropolitan Government
of Nashville, 80 F.3d 1107, 1999 (6th Cir. 1996).
In this case, Plaintiff spoke with her supervisor in 2014 and 2015 about the lunch
deduction, resigned in September 2015 and that same week was prevented from taking a position
with Jackson. Infra, §IIIB. This is sufficient temporal proximity that there remains a genuine
dispute of the material facts concerning the causal connection of Plaintiff’s informal complaints
and the circumstances of her resignation. Thus, Plaintiff has established a genuine issue of
material fact with respect to all four prongs of her FLSA retaliation claim, and Defendant’s
Motion for Summary Judgment on this claim is denied.
B. Tortious Interference
Plaintiff also alleges tortious interference with a business relationship. The record
indicates there is a genuine dispute of material fact about whether Defendant interfered to
prevent Plaintiff from entering into an employment contract with Jackson.
In order to maintain a claim for tortious interference with a business relationship, Plaintiff
needs to show she had a business relationship in which the Defendant knowingly interfered; that
as a result, Jackson refused to enter into the relationship; and that damages resulted. The primary
element in dispute here is about Defendant’s knowledge.
The record reflects that Plaintiff’s supervisor received notice of her resignation on
September 21, 2015, and Plaintiff worked her last shift on October 4, 2015.1 Plaintiff had been in
discussion with Jackson about a position there and filled out her references and “skills checklist”
1
There is some dispute about when Plaintiff handed in her notice. The notice seems to have been dated September
19, 2015, a Saturday, but both Plaintiff and her supervisor testify that Plaintiff handed the notice to her supervisor on
the 21st. In any event, September 21, 2015 was a Monday and October 4, 2014 was a Sunday.
Q: Was October 4, 2015 the last date that you worked?
A: It would have been that morning was my last shift, yes.
…
Q: And this indicates that the date you provided notice was September 21, 2015; is that right?
A: It would have been around that time. (ECF No. 18, Ex. 2 at 133:7-16).
9
for Jackson on September 23, 2015. (ECF No. 18, Ex. 3). Then Plaintiff received a voicemail
from her recruiter at Jackson, explaining “[Jackson] did have a big pow-wow with Marietta last
couple of weeks and we can’t place anybody from there until they have been gone a year…so
I’m sorry about that.” (Id.). Plaintiff testified that she received this message “a week into the
two-week notice” (ECF No. 18, Ex. 2 at 87:11) and that this was the first she had heard about
Jackson’s purported arrangement with Marietta. This portion of the deposition is worth
reproducing at length:
Q: So Jackson had a contract with the hospital?
A: Yes.
Q: And I assume you’ve not seen that contract?
A: No.
…
Q: Did anybody at Jackson ever mention that to you?
A: Not until after we turned in our two-week notice. They notified us, saying they
couldn’t work with us because we haven’t left the hospital for a year.
Q: And did they refer to any particular document or provision that prevented them from
hiring you?
A: Not to me, they did not, no.
Q: So are you aware that third parties like Jackson are sometimes required to sign a
contract with the hospital which prevents them from poaching employees?
A: I have heard of that, yes.
Q: But you don’t know if they signed something in this case?
A: Well I’m going to assume they didn’t since they were recruiting us at the time.
(ECF No. 18, Ex. 2 at 87:20-88:16).
Plaintiff also received exit paperwork from Marietta that said she had provided insufficient
notice, that she was going to “travel with Jackson travel agency,” and ultimately recommending
against re-hire. (ECF No. 18, Ex. 1). Defendant is the county’s largest employer.2 The exit
paperwork is dated September 25, 2015. Plaintiff testified that she did not tell her supervisor that
she was going to work for Jackson.3 The record includes emails Plaintiff had been receiving from
the recruiter at Jackson going back to June 2015. (ECF No. 18, Ex. 4). And Defendants admit
2
Q: And now Marietta Memorial Hospital is the largest employer in the county, correct?
A: Correct. (ECF No. 18, Ex. 5 at 101:23-102:1).
3
Q: Did you provide two-weeks’ notice?
A: Yes
Q: And who did you provide it to?
A: I turned it in to [supervisor] Mandy. As far as the Jackson Travel Agency, I never mentioned I was going to
Jackson Travel Agency.
Q: Did you tell Mandy where you were going?
A: No
Q: Any reason why not?
A: I didn’t feel she needed to know. (ECF No. 18, Ex. 2 at 133:22-134:7).
10
that they learned in August 2015 that Jackson had been recruiting at the Hospital and so entered
into a non-solicitation agreement with Jackson on September 23, 2015. (ECF No. 16 at 2).
These facts taken together indicate a genuine dispute of material fact. Most essential to
the tortious interference claim is the genuine dispute about who at Marietta knew of the nurses’s
departure for Jackson, and when. That a non-solicitation agreement – which apparently applied
retroactively – seems to have been concluded contemporaneously with the nurses giving their
notice gives rise to a genuine dispute of material fact. In addition, the reference to Jackson on
Plaintiff’s termination paperwork – information Plaintiff says she did not provide her supervisor
– would allow a reasonable jury to conclude Defendants did tortiously interfere with a business
relationship. Because there is a genuine dispute of material fact, summary judgment would be
inappropriate at this time.
IV.
CONCLUSION
For the foregoing reasons, there remains a genuine dispute of material fact such that
summary judgment would be inappropriate at this time. Defendants’ Motion is DENIED.
IT IS SO ORDERED.
s/Algenon L. Marbley ___________
ALGENON L. MARBLEY
UNITED STATES DISTRICT JUDGE
DATED: March 18, 2019
11
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?