Madrid v. Legend Senior Living LLC
Filing
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ORDER granting in part and denying in part 35 36 Motion for Summary Judgment and Brief in Support. Defendants motion directed to Plaintiffs Title VII discriminatory termination, FMLA and OADA claims is GRANTED and its motion directed to Plaintiffs Title VII discriminatory demotion claim is DENIED. Signed by Honorable David L. Russell on 4/20/12. (kw, )
IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
KAMA MADRID,
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Plaintiff,
-vsLEGEND SENIOR LIVING, L.L.C.,
d/b/a Legend At Council Road,
Defendant.
Case No. CIV-11-488-R
ORDER
Before the Court is Defendant’s motion for summary judgment on Plaintiff’s
Complaint. Doc. No. 35. Plaintiff has filed a response and objection to the motion [Doc. No.
40], and Defendant has filed a reply in support of its motion and memorandum in support
thereof [Doc. Nos. 41 & 43]. Plaintiff makes no response to Defendant’s arguments directed
to Plaintiff’s claims under the Family Medical Leave Act (“FMLA”), 29 U.S.C. § 2601, and
under the Oklahoma Anti-Discrimination Act, (“OADA”), Okla. Stat. tit. 25, § 1101 et seq.
Accordingly, pursuant to LCvR 7.1(g), Defendant’s motion directed to Plaintiff’s FMLA and
OADA claims is deemed confessed. Additionally, it is undisputed that Plaintiff was not an
eligible employee under the FMLA because she had not been employed by Defendant for at
least 12 months. Therefore, Plaintiff was not entitled to FMLA leave so Defendant could not
have interfered with her right to take it. And no private cause of action for sex or pregnancy
discrimination exists under the OADA. Thus, Defendant’s motion directed to Plaintiff’s
FMLA and OADA claims is GRANTED.
In support of its motion directed to Plaintiff’s Title VII claims for gender/pregnancy
discrimination in Plaintiff’s demotion and termination, Defendant argues that Plaintiff cannot
establish the second, third and fourth essential elements of those claims. However, as to
Plaintiff’s discriminatory termination claim, Defendant argues only that Plaintiff cannot
establish a prima facie case of gender discrimination because she can’t establish the second
essential element that is, demonstrate that she was doing satisfactory work. However, there
is evidence that Plaintiff received a pay raise while employed by Defendant, that Plaintiff
received the Legendary Service Award in September of 2009 and testimony that Plaintiff was
“fantastic in her job.” Deposition of Karen Jones (Exhibit “5” to Plaintiff’s Response) at p.
64. This evidence is sufficient to establish the second element of a Title VII prima facie
case. See e.g., Denison v. Swaco Geolograph Co., 941 F.2d 1416, 1420-21 (10th Cir.
1991)(employee can meet his/her burden of production on second element of a prima facie
case by some evidence of good performance); MacDonald v. Eastern Wyoming Mental
Health Center, 941 F.2d 1115, 1121 (10th Cir. 1991)(second essential element of prima facie
case can be established by credible evidence that the employee continued to possess the
objective qualifications she had when hired, her own testimony that her work was
satisfactory, even when disputed by her employer, or by evidence that she held her position
for a significant period of time), abrogated on other grounds in Randle v. City of Aurora, 69
F.3d 441 (10th Cir. 1995).
Defendant has articulated two legitimate, nondiscriminatory reasons for Plaintiff’s
termination. Plaintiff has presented evidence that one of the asserted reasons for terminating
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the Plaintiff – that she encouraged or told Jasmine Bradley and Meoshe Bradley to falsify
their job applications – was false. However, while Plaintiff in her Response to Defendant’s
Statement of Uncontroverted Facts denies that she engaged in “any negative conversations
in violation of any corporate policy,” Plaintiff has wholly failed to support the denial, i.e.,
present any evidence, even so much as an affidavit. Thus, there is no evidence before the
Court that one of Defendant’s articulated legitimate nondiscriminatory reasons for
terminating the Plaintiff was false and/or a pretext for gender/pregnancy discrimination. As
a general rule, an employee must proffer evidence that shows that each of an employer’s
articulated nondiscriminatory justifications for termination is pretextual. Tyler v. RE/MAX
Mountain States, Inc., 232 F.3d 808, 814 (10th Cir. 2000). Sometimes, however, a plaintiff’s
evidence that one justification is unworthy of belief or pretextual casts doubt on or calls into
question other proffered justifications. See id.; see also Bryant v. Farmers Insurance
Exchange, 432 F.3d 1114, 1126-27 (10th Cir. 2005)(demonstrating that one reason for
termination which predominated over the other reasons is pretextual is enough to avoid
summary judgment). Here, however, neither reason for Plaintiff’s termination has any
apparent predominance over the other and Plaintiff’s evidence that one of Defendant’s
reasons is unworthy of belief does not cast substantial doubt on Defendant’s other proffered
reason. Therefore, Defendant is entitled to summary judgment on Plaintiff’s Title VII
discriminatory termination claim. See Luster v. Vilsack, 667 F.3d 1089, 1093-94 (10th Cir.
2001)(plaintiff’s failure to show that the defendant’s second justification for non-selection
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of plaintiff for a position as Forestry Technician entitled the defendant to summary
judgment).
In support of its motion directed to Plaintiff’s discriminatory demotion claim,
Defendant argues that Plaintiff cannot establish the third essential element of a prima facie
case of discriminatory demotion. Defendant states that Plaintiff did not suffer a demotion
because she never received an authorized promotion to the position of Resident Care
Coordinator (RCC) and that such a promotion was not authorized because the position did
not exist and had never existed. While purporting to address the element of “adverse
employment action,” Defendant goes on to state that “[i]ndeed, the plaintiff lacked the
education necessary for the fictitious position,” Defendant’s Brief at pp. 20-21, pointing out
in its “Statement of Uncontroverted Facts” that the job description for the position of RCC
required that the employee be a graduate of an accredited school of nursing, citing Exhibit
“15,” and that Plaintiff admits she is not a nurse and is not a graduate of an accredited
nursing school. See Defendant’s Brief at p. 10. In its reply, however, Defendant apparently
recognizes that Plaintiff’s alleged failure to meet the qualifications for the position of RCC
(which Defendant in any event maintains is a fictitious position) prevents Plaintiff from
establishing the second essential element of a prima facie case of discriminatory demotion.
See Defendant’s Memorandum in Support of Reply at p. 4. And the Court is of the opinion
that Defendant’s assertion that Plaintiff was not qualified for the purportedly fictitious
position of RCC should be considered either in determining whether Plaintiff can establish
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the second essential element of a prima facie case or as an articulated legitimate
nondiscriminatory reason for Plaintiff’s demotion.
In response to Defendant’s argument addressed to the third essential element of her
demotion claim, that Plaintiff suffered an adverse employment action, Plaintiff has submitted
evidence that the position of Resident Care Coordinator (RCC) did exist at Plaintiff’s place
of employment with Defendant. See Plaintiff’s Deposition (Exhibit “3” to Plaintiff’s
Response) at pp. 167 & 283; Affidavit of Terry Lewis (Exhibit “2” to Plaintiff’s Response)
at ¶ 3; Resident Care Coordinator Job Description signed by Plaintiff (Exhibit “4” to
Plaintiff’s Response); and Deposition of Karen Jones (Exhibit “5” to Plaintiff’s Response)
at pp. 16, 21, 22, 57 & 64). Indeed, an email from Defendant’s Vice President of Operations
which both Defendant and Plaintiff submitted to the Court strongly suggests that the RCC
position did exist at Defendant and that he approved Plaintiff’s promotion to it, just not a
$3.00 hourly raise: “This is not approved. The RCC positions do not carry $3.00 hourly
raise. This title will carry with it a maximum of $0.75 hourly raise. This must be addressed
with this associate in person. Eliminate the position if necessary.” See email from Matthew
Thornton to Caryl Ridgeway dated February 8, 2010 (Exhibit “15” to Defendant’s Motion
and Exhibit “10” to Plaintiff’s Motion. There is also evidence before the Court that the
position of RCC carried with it considerably different duties and responsibilities from that
of Certified Nursing Assistant/Medication Administrative Technician, which duties and
responsibilities were taken away from Plaintiff. Accordingly, Plaintiff has met her burden
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of production of showing that she suffered an adverse employment action when she was
demoted.
With respect to the second essential element of a prima facie case of discriminatory
demotion, that is, that the plaintiff was qualified for the position from which he or she is
demoted, see Matthews v. Denver Newspaper Agency, LLP, 649 F.3d 1199, 1208 (10th Cir.
2011)(elements of prima facie discriminatory demotion case), it is undisputed that the Job
Description for Resident Care Coordinator requires a graduate of an accredited nursing
school who holds a current nursing license in the state of employment, see Exhibit “15” to
Defendant’s Motion, and that the Plaintiff did not have these qualification. See Deposition
of Plaintiff (Exhibit “3” to Defendant’s Motion) at p. 169. However, Plaintiff has submitted
evidence that an individual named Andrew Berg was introduced to her as the RCC and that
he was not a licensed nurse but rather a Certified Nursing Assistant and Medication
Administration Technician (CNA/MAT). Deposition of Plaintiff (Exhibit “3” to Plaintiff’s
Response) at p. 283. She has also submitted evidence that she was told that she was being
demoted from the position of RCC because she was not a nurse but was told she was being
replaced by Connie Pratt, who was also not a nurse. Id. This evidence suggests that
notwithstanding the objective qualification listed on the RCC Job Description, Defendant did
not require that an employee holding the position of RCC actually have those qualifications.
Accordingly, Plaintiff’s own testimony that she performed the duties of RCC for nearly three
months, see Deposition of Plaintiff (Exhibit “3” to Plaintiff’s Response) at p. 133, as well as
the testimony of Karen Jones that Plaintiff performed all her duties as the RCC and was
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“fantastic” in her job, see Deposition of Karen Jones (Exhibit “5” to Plaintiff’s Response)
at pp. 22, 57 & 64, in conjunction with evidence that Defendant employed others who did
not have nursing degrees in the position of RCC, is sufficient to establish for purposes of a
prima facie case of discriminatory demotion that Plaintiff was qualified for the position of
RCC.
In her response brief, Plaintiff sought to establish the fourth essential element of a
prima facie case of discriminatory demotion by showing that the “position remained open
and was ultimately filled by a non-pregnant employee,” quoting Atchley v. Nordam Group,
180 F.3d 1143, 1148 (10th Cir. 1999), while noting that a plaintiff can satisfy the fourth
essential element of a prima facie case “in a number of ways.” Atchley, 180 F.3d at 1195 n.
6. Plaintiff attempts to show that she was replaced in the position of RCC by a non-pregnant
individual by citing to her testimony that she was replaced by Connie Pratt. See Deposition
of Plaintiff (Exhibit “3” to Plaintiff’s Response) at p. 283. Defendant in its reply, however,
points out that Plaintiff’s testimony does not support her assertion that she was replaced by
a non-pregnant individual. Defendant’s Memorandum in Support of Reply at pp. 6-7. This
is true because Plaintiff didn’t testify as to whether or not Connie Pratt was pregnant. And
there is no other evidence before the Court that Connie Pratt was not pregnant. Thus,
Plaintiff cannot establish the fourth essential element of her discriminatory demotion claim
in this manner. However, another way Plaintiff can establish the fourth essential element of
a prima facie case of discriminatory demotion is simply by showing that “the position was
not eliminated.” Matthews v. Denver Newspaper Agency, LLP, 649 F.3d at 1208, citing
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Jones v. Denver Post Corp., 203 F.3d 748, 753 (10th Cir. 2000). The testimony of Karen
Jones that following Plaintiff’s demotion, Defendant hired a new girl to replace Plaintiff as
RCC, see Deposition of Karen Jones (Exhibit “5” to Plaintiff’s Response) at pp. 64-65, and
Plaintiff’s testimony that she was told she was being replaced as RCC by Connie Pratt, is
sufficient to establish that the position of RCC was not eliminated. Thus, Plaintiff has
established the fourth essential element of her discriminatory demotion claim.
Defendant has not specifically proffered a legitimate nondiscriminatory reason for
demoting the Plaintiff, maintaining instead that the position of RCC never existed, a
promotion to such a position was never authorized and Plaintiff wasn’t qualified for such
fictitious position anyway, and thus that Plaintiff can’t show an adverse employment action
and, possibly, that she was not qualified for it. However, even if the Court considers
Defendant’s position that Plaintiff was not qualified for the allegedly fictitious position as
an articulated legitimate nondiscriminatory reason for Plaintiff’s demotion, the evidence,
cited above, that other individuals who were not nurses having graduated from accredited
nursing schools and holding nursing licenses held the position of RCC at Plaintiff’s place of
employment with Defendant before and after Plaintiff held that position is sufficient to show
that Plaintiff’s lack of nursing degree as the reason for her demotion is unworthy of belief
and a mere pretext. Accordingly, Defendant is not entitled to summary judgment on
Plaintiff’s Title VII discriminatory demotion claim.
In accordance with the foregoing, Defendant’s motion for summary judgment [Doc.
Nos. 35 & 36] is GRANTED in part and DENIED in part. Defendant’s motion directed to
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Plaintiff’s Title VII discriminatory termination, FMLA and OADA claims is GRANTED and
its motion directed to Plaintiff’s Title VII discriminatory demotion claim is DENIED.
IT IS SO ORDERED THIS 20th day of April, 2012.
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