Adams v. Williamson Medical Center
Filing
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MEMORANDUM Signed by District Judge Aleta A. Trauger on 10/1/19. (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(dt)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
SHEA T. ADAMS,
Plaintiff,
v.
WILLIAMSON MEDICAL CENTER,
Defendant.
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Case No. 3:18-cv-00384
Judge Aleta A. Trauger
MEMORANDUM
Before the court is defendant Williamson Medical Center’s Motion for Summary
Judgment (Doc. No. 29), seeking dismissal of plaintiff Shea Adams’ claims of hostile work
environment, retaliation, and retaliatory harassment in violation of Title VII of the Civil Rights
Act of 1964 (“Title VII”), 42 U.S.C. § 2000e et seq.
For the reasons set forth herein, the defendant’s motion will be granted in part and denied
in part. Specifically, the court finds that material factual disputes preclude summary judgment on
the plaintiff’s hostile work environment claim but will grant summary judgment for the
defendant on the plaintiff’s retaliation and retaliatory harassment claims.
I.
MATERIAL FACTS1 and PROCEDURAL BACKGROUND
Shea Adams began her employment with Williamson Medical Center (“WMC”) in 2011
as an EKG Technician. She obtained her nursing degree and license in 2012, after which she
began working for WMC as a full-time registered nurse in the Critical Care Unit (“CCU”). She
1
The facts stated herein are drawn from the plaintiff’s Response to the Defendant’s
Statement of Undisputed Material Facts, the pleadings, and the evidentiary materials submitted
by both parties in support of their respective positions. Unless otherwise indicated, the facts are
undisputed.
2
transitioned to “as needed,” or “PRN,” status in August 2015, which she maintained until her
resignation on December 3, 2017.
A.
Allegations Regarding Hostile Work Environment
Adams claims that she was subjected to a hostile work environment based on sex while
she was employed at WMC. Her claim is based on the comments and conduct of a former
colleague named William “Buddy” Dodson and on WMC’s response to her complaints about
Dodson.
In her Complaint, Adams alleged that Dodson made sexually inappropriate comments to
her and to others in her presence, including, but not limited to, the following: (1) while Dodson
was assisting a male patient in using the urinal, he called another nurse into the room and asked
her if she could handle unzipping the patient’s pants and pulling out his penis; (2) he placed a
cucumber in an “erect” position on the seat of a chair and told another nurse to “come take a
ride”; and (3) he described his son’s girlfriend’s genitalia while at the nurse’s station. (Compl.,
Doc. No. 1 ¶ 12.)
Adams related these incidents in greater detail during her deposition. The first, involving
the patient and the urinal, occurred in 2014. The comment was directed to another colleague,
Michelle Clauson. The plaintiff did not witness the initial incident, but she witnessed Dodson’s
reenactment of it, which occurred when Clauson called her into the room. The plaintiff asked
what was wrong, and Dodson repeated his question to Clauson. (Adams Dep. 72–73, Doc. No.
29-1, at 29–30.) Adams did not make a report about the comment, but she believed that Clauson
reported it to Jennifer Murphy, director of the CCU and the plaintiff’s and Dodson’s direct
supervisor. (Adams Dep. 73, Doc. No. 29-1, at 30.) Murphy testified that she discussed the
incident with Dodson during his annual evaluation, a few months after Clauson complained.
(Murphy Dep. 116–18, Doc. No. 29-2, at 24–26.)
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The cucumber comment was made to another colleague. Again, the plaintiff did not
witness the original incident, but she witnessed the reenactment of it:
So I don’t know the original circumstances. I know Buddy reenacted that for us.
Myself, Deborah Stevenson, I think Wes Buchanan was present. . . . [Buddy]
walked into our break room and Deborah immediately started telling him to get
out of there, he was not welcome. And I said what have you done to Deborah, and
Deborah said show her. And so he sat down at the break table, picked up . . . a
pen. And he said this was a cucumber and he set it on top of the table erect. And
. . . he told everyone in the room that he told Deborah to hop on and take a ride.
(Adams Dep. 74, Doc. No. 29-1, at 31.) Adams claims this incident occurred in the spring of
2016. She and her colleagues who had witnessed the reenactment reported it that day to Jennifer
Murphy while they were sitting around the break room table. Murphy told them that they “would
just have to overlook Buddy.” (Id.) Phyllis Molyneux, WMC’s former Associate Administrator
for Compliance and Human Resources, testified that “Debra Stephens Smith,” presumably the
same person as “Deborah Stevenson,” reported the cucumber incident to her but “long after the
fact that it had happened. And she said she chose to deal with it herself.” (Molyneux Dep. 33,
Doc. No. 29-1, at 5.)
The plaintiff personally heard Dodson’s comments about the son’s girlfriend’s genitalia.
On or about Monday, April 25, 2016, Adams made a formal report about the incident to
Molyneux, stating that Dodson had made the comments to the plaintiff and another colleague,
Daphne Garrett, earlier that month. The plaintiff also claims, in a Declaration filed in response to
the defendant’s Motion for Summary Judgment, that she “reported to Ms. Molyneux that [she]
had repeatedly reported Mr. Dodson’s ongoing inappropriate conduct and sexual comments to
Jennifer Murphy,” but that Murphy told her she “had to ignore or overlook Mr. Dodson’s
conduct because he makes inappropriate comments all the time.” (Adams Sept. 4, 2019 Decl.,
Doc. No. 33-4 ¶ 2.)
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The defendant objects that the plaintiff, prior to the statements in her Declaration, never
disclosed that she had made a report to Jennifer Murphy prior to her report to Molyneux or that
she complained about Murphy to Molyneux. During her deposition, asked whether she “ever
ma[d]e any complaints about [her] work environment while [she was] employed at WMC,”
Adams responded that she made a report to Phyllis Molyneux in April 2016 regarding Dodson’s
comments about his son’s girlfriend’s genitalia. (Adams Dep. 53–54, Doc. No. 29-1, at 19–20.)
The defendant’s Interrogatories asked the plaintiff to “[i]dentify every individual” she believed
had discriminated or retaliated against her in violation of Title VII and to “describe in detail the
alleged violation(s) and the role of the individual in the violation(s).” (Doc. No. 35-1, at 6.) The
plaintiff described Jennifer Murphy’s involvement, in relevant part, as follows:
After Plaintiff reported to Phyllis Molyneux in HR the hostile work environment
due to Buddy Dodson’s sexually graphic comments and discussion, the issue was
evidently turned over to Ms. Murphy, because she sent Plaintiff a text message to
meet with Plaintiff. . . . Ms. Murphy admitted Mr. Dodson’s behavior was
inappropriate, but stated that if she was going to keep him from behaving
inappropriately, she would have to crack down on everyone. . . . In the end, Ms.
Murphy did nothing to control Mr. Dodson’s behavior and it continued.
(Doc. No. 35-1, at 7.)
A different interrogatory asked the plaintiff to identify each instance in which she
complained about the alleged discrimination and retaliation, providing, inter alia, the dates on
which she complained, the name of the person to whom she complained, any witnesses, the
response to her complaint, and whether her complaints were written or oral. (Doc. No. 35-1, at
9.) Adams responded that she reported Dodson’s behavior to Molyneux verbally on April 25,
2016 and that she discussed her report to Molyneux with Murphy on June 9, 2016. (Id.) She
described additional complaints to Molyneux but no other complaints to Murphy. (Id. at 10.) She
nowhere alleged that she “repeatedly” reported Dodson’s inappropriate behavior to Murphy prior
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to her formal complaint to Molyneux in April 2016 or that she told Molyneux that she had done
so.
Other evidence in the record, however, corroborates the plaintiff’s statement in her
Declaration that Murphy was aware of the incident before the plaintiff reported it to Molyneux.
First, Murphy testified that Molyneux reported to her that Adams had complained about
Dodson’s sexually inappropriate comments about his son’s girlfriend and that Adams believed
that Dodson was getting special treatment because of Murphy’s friendship with Dodson’s wife.
While Murphy did not recall investigating the incident—she believed Molyneux and Scott
Buchanan, then WMC’s Director of Employee Relations and Education, investigated it—she did
talk to Daphne Garrett about it, at Molyneux’s request. (Murphy Dep. 25–26, Doc. No. 33-2, at
8–9.) Murphy stated that she and Cathy Reinhart, WMC’s Assistant Director of Critical Care,
met with Daphne Garrett on May 25, 2016. Although Murphy’s testimony is somewhat unclear,
a memorandum she prepared contemporaneously to document the discussion indicates that she
explained to Garrett that she “vaguely recall[ed] a conversation with [Garrett] at the nurses’
station several weeks/months ago regarding Buddy discussing his son’s sexual encounters.”
(Doc. No. 29-5, at 45.) In her deposition, Murphy testified that Molyneux wanted her to talk to
Garrett because Garrett had related the incident to her around the time it happened, and Garrett
and Adams had “told [Molyneux] that [Garrett] had complained, and I didn’t listen to her.”
(Murphy Dep. 124, Doc. No. 29-2, at 29; see id. (“So that’s why [Molyneux] wanted me to go
back.”).) Murphy “apologized” to Garrett that she “had not recognized that as a formal
complaint.” (Murphy Dep. 123–24, Doc. No. 29-2, at 29–30.) In the Memorandum, Murphy
stated that she told Garrett that, if she had recognized Garrett’s statements about the incident as a
“formal complaint . . . , [she] would have formally investigated it.” (Doc. No. 29-5, at 45.) She
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asked what she could do at that point to fix the problem. Garrett told her that it “wasn’t that big
of a deal.” (Id.) Murphy also testified that Garrett, Adams, and two other employees told
Molyneux that “Daphne had complained” but that Murphy “didn’t listen to her.” (Murphy Dep.
124, Doc. No. 29-2, at 29.)
Murphy, along with Scott Buchanan and Cathy Reinhart, met with Dodson on May 25,
2016, for a Performance Accountability Discussion, a formal step in WMC’s discipline process.
Dodson was counseled at that time against making any sexually inappropriate comments.
Murphy stated that the purpose of the discussion was to let Dodson “know that . . . any kind of
behavior like that would not be tolerated, nor should he . . . go out and tell people he was getting
special treatment. That was wrong, and we were letting him know that was wrong.” (Murphy
Dep. 95, Doc. No. 29-2, at 22.)
Following this incident, Adams requested that she not be scheduled to work with Dodson.
Molyneux informed Adams that they would try to accommodate her request but that it would not
always be possible to schedule them on separate shifts. Adams reiterated that she did not want to
work with him. (Adams Dep. 72, Doc. No. 29-1, at 29.) An email from Murphy to “Nursing
Supervisors,” directing them to avoid scheduling Adams and Dodson on the same shift, was not
distributed until July 5, 2016. (Doc. No. 29-5, at 41.)
Adams and Dodson were working the same shift the day in early September 2016 when
Dodson approached her and another colleague, Amanda Lee, in the cafeteria and asked, “in a
very snickery, inappropriate way, what are you going to do with those bananas?” (Adams Dep.
57, Doc. No. 29-1, at 23.) This incident occurred in late August or early September 2016. Adams
contacted Molyneux by email on September 3, 2016, informing her that Dodson had made
another inappropriate comment to her.
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Molyneux initiated an investigation, and Buchanan interviewed both Dodson and Lee.
While the investigation was ongoing, WMC discovered that Dodson had discussed the nature of
the allegations and the existence of the investigation with another employee. Dodson had been
instructed, consistent with WMC policy, to keep the interview confidential. Upon learning that
Dodson had breached that confidentiality, Molyneux prepared documentation to terminate
Dodson’s employment on September 20, 2016, for insubordination. Before Molyneux had the
opportunity to terminate his employment, Dodson resigned in order to avoid being terminated.
The plaintiff was asked about other comments by Dodson, in addition to the four
instances related above. She responded, “All the time. He made inappropriate comments all the
time.” (Adams Dep. 75, Doc. No. 29-1, at 32.) She provided other examples and also indicated
that, with respect to at least some of these, “they,” meaning she and the other nurses with whom
she worked, reported the comments “off the cuff” to Jennifer Murphy, who told them, “you guys
are just going to have to ignore Buddy. He makes inappropriate comments all the time.” (Adams
Dep. 75–76, Doc. No. 29-1, at 32–33.) These comments included a story about Dodson’s wife
wanting to have sex in the woods, which repulsed him; comments about how good the other
nurses’ hair smelled and “[w]hy couldn’t his wife’s hair smell like that”; and a complaint that his
wife was not as attractive as his general contractor’s wife. (Id.) Adams testified that the
inappropriate comments were “too numerous to count.” (Adams Dep. 77–78, Doc. No. 29-1, at
34–35.)
When asked how Dodson’s comments interfered with her work, she responded: “Well, it
was completely inappropriate. You know, it interfered because you didn’t know what he was
going to say to you.” (Adams Dep. 88, Doc. No. 29-1, at 42.) Although she conceded that his
comments never kept her from treating a patient, she would at times have to “compose herself”
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after he made “comments like that” and, as a result, “took time away from [her] patients.” (Id.)
An example of such an instance was when he described his son’s girlfriend’s genitalia. (Adams
Dep. 88, Doc. No. 29-1, at 43.) His comments caused her not to want to go to work, but she went
because has “ha[d] to have a job.” (Id.) His comments never made her unable to complete any
work tasks, care for a patient, or go to work, but she found the comments “emotionally
distressing.” (Adams Dep. 88–89, Doc. No. 29-1, at 43–44).
Adams and Dodson worked on different floors, and the plaintiff spent most of her day
caring for patients, with only two fifteen-minute breaks and a thirty-minute lunch break per day,
which she was frequently too busy to take. (Adams Dep. 89–90, Doc. No. 29-1, at 44–45.) But
the nurses often stepped into the break room for water, and Dodson would frequently come down
to the break room on her floor to get coffee and “make inappropriate comments.” (Adams Dep.
91, Doc. No. 29-1, at 46.) He did not come to her floor on a specific schedule; he came down at
“random times” on “random days.” (Adams Dep. 92, Doc. No. 29-1, at 47.)
B.
Allegations Regarding Retaliation
Prior to 2014, WMC contracted with Cogent Healthcare, an independent entity, to
provide hospitalist services to WMC patients. During the period that hospitalists were provided
by Cogent, coordination between WMC and the hospitalists was the responsibility of a program
manager. The program manager served as administrative support and a liaison between the
hospitalists and WMC; the position at that time was non-clinical.
In 2014, Cogent was acquired by Sound Physicians (“Sound”), which continued to
provide hospitalists to WMC under the same contract. However, when Sound purchased Cogent,
the program manager position was replaced with a hospitalist RN (“HRN”) position. Although
the person filling the role was still intended to serve as a liaison, Sound required a clinical
background. Cogent’s program manager was not an RN and did not have clinical experience.
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Sound employed Tonya Parrish, RN, to fill the HRN position. Parrish had the requisite clinical
background, but she was not able to manage the hospitalists or act as a true liaison and, as a
result, was wholly unsuccessful in the role.
Sound began accepting applications to replace Parrish in 2016. Lori Orme, WMC’s Chief
Nursing Officer, testified that she and Adam West, Sound’s Regional Director of Operations,
discussed “on several occasions” that a person with management and leadership skills, rather
than clinical skills, was needed for the position. (Orme Dep. 34, Doc. No. 29-7, at 16.) West
testified that he had discussions about the program manager Cogent had employed in the position
and that he was aware that Orme liked that individual’s management style and thought he had
performed well in the position. West did not specifically recall that Orme had “identif[ied] . . .
anything specific that she was looking for in the hospitalist RN position.” (West Dep. 28, Doc.
No. 33-8, at 9.) If she had, he would have passed that information on to the people hiring for the
position. (Id.) Vonetta Bonner, Sound’s Regional Nurse Manager at the time, testified that Sound
did not include any requirement for management experience in the job description for the HRN
position. (Bonner Dep. at 19–24, Doc. No. 33-7, at 7–12.)
Adams applied for the HRN position in June 2016. She was interviewed several times by
Sound. Bonner testified that, after the initial rounds of interviews, Adams was one of the top two
candidates for the position. (Bonner Dep. 41, Doc. No. 33-7, at 18.) After another round of
interviews, Adams was selected as the successful candidate, subject to some additional
interviews. (Bonner Dep. 47–48, Doc. No. 33-7, at 20–21; see also Bonner Dep. Ex. 9, Doc. No.
33-7, 46 (8/4/2016 email from E. Hilliker v. M. Whitver (“I wanted to provide you on an update
on our interviews that went really well!! We really like all of them though our selection will be
Shea Adams. We cannot proceed until she has another interview with the Chief. . . .”)).) In
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addition, West notified Bonner that Lori Orme wanted to “meet with the candidates.” (Bonner
Dep. 51, Doc. No. 33-7, at 23.) Bonner attempted to communicate to Orme that Sound was
looking at Adams for the position, but she never heard back from Orme. (Bonner Dep. 52–53,
Doc. No. 33-7, at 24–25.) Orme denies receiving a message from Bonner. (Orme Dep. 35, Doc.
No. 33-6, at 17.)
Some individuals at Sound had concerns about Adams’ “dynamic personality” and
questioned whether her personality was “a little too strong for the team and for the hospital
partner.” (Bonner Dep. 54, 57, Doc. No. 33-7, at 26, 27.) Bonner recognized that the “key was
making sure she was a fit.” (Bonner Dep. 57, Doc. No. 33-7, at 27.) Following some discussion
about these concerns, a decision was made to continue to proceed with considering Adams for
the position. (Id.) While Bonner was waiting to hear back from Denise Britt, following her
interview with Adams, Bonner agreed with another Sound employee, Matthew Whitver, that,
once she heard back from Britt, he would “go ahead and move on with the approvals. And he
stated that if the CNO [Lori Orme] said no, then we could look at other candidates, but if not,
fine, then we would have everything in place.” (Bonner Dep. 61, Doc. No. 33-7, at 30; see also
Bonner Dep. Ex. 14, Doc. No. 33-7, at 49 (8/19/2016 email from M. Whitver to V. Bonner).) In
other words, viewed in the light most favorable to the plaintiff, the evidence indicates that Sound
had made the decision to offer the job to Adams unless Orme disapproved.
Bonner testified that Orme’s approval of the hire was “not mandated, per se,” but that it
was important to take the “hospital partner’s” concerns or thoughts about any candidate into
consideration. (Bonner Dep. 63, Doc. No. 33-7, at 32.) That is, although Sound was not required
to follow Orme’s wishes, her opinion was a factor that Sound would consider. (Bonner Dep. 64–
65, Doc. No. 29-9, at 21–22.) Rather than meet with Adams, Orme met with Adam West, who
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reported to Bonner that Orme requested that Sound “look at additional candidates.” (Bonner
Dep. 66, Doc. No. 29-9, at 23.) Bonner never personally spoke with Orme. However, Bonner
communicated to Matthew Whitver and others involved in the hiring process that “the CNO at
Williamson did not agree to Shea Adams” and, therefore, that they should begin additional
interviews with other candidates. (Bonner Dep. Ex. 15, Doc. No. 33-7, at 51.) Whitver’s
response was, “Ok wow that was not expected at all,” to which Bonner replied, “I know. I am not
happy but we need to move ahead.” (Id.) Several days later, Bonner asked Whitver to notify
Adams that Sound had “decided to pursue other candidates.” (Bonner Dep. Ex. 16, Doc. No. 337, at 54.) Adams was notified on August 31, 2016 that she would not be offered the position. (Id.
at 53.)
West testified that he spoke briefly with Orme about Adams as a potential candidate for
the HRN position. According to West, Orme told him that, “from what she knew about [Sound’s]
program’s history, it might not be the best fit for what we were probably looking for, but yet it
was our program and we could do what we wanted.” (West Dep. 16, Doc. No. 33-8. at 6.)
According to West, Orme did not explain why she though Adams might not be a good fit, and he
did not ask. (West Dep. 19, Doc. No. 33-8, at 7.) West then reported to Bonner what Orme had
told him. (West Dep. 21, Doc. No. 33-8, at 8.) He also told Bonner that the decision of whom to
hire was ultimately up to Sound. (Id.)
Orme testified that, when West informed her that Sound’s candidate for the HRN position
was Shea Adams, Orme was “concerned in that there had been some history with placing an RN
in that position, and I was just very concerned that Shea did not have the leadership and
management . . . skills that were needed for that position.” (Orme Dep. 29, Doc. No. 33-6, at 13.)
All she knew about Adams at the time was that she “had been a new RN and part of our new
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grad program, . . . that she had only been a nurse for a few years and had not been in any
management role for the hospital.” (Orme Dep. 30, Doc. No. 33-6, at 14.) She knew Adams had
not been in a management role at the hospital, because, if she had been a clinical coordinator or
nursing director at the hospital, Orme would have known. She did not know exactly when
Adams had graduated from nursing school, but she knew that Adams was a “relatively new
nurse.” (Id.) She did not tell West that Sound should not hire Adams, but she told him that it
should look at additional candidates. (Orme Dep. 32, Doc. No. 33-6, at 16.) She did not do any
investigation into Adams’ background or see her resume; “[i]t was just a phone call.” (Orme
Dep. 35–36, Doc. No. 33-6, at 17–18.) She had no knowledge of Adams’ ability to interact with
the hospitalist physicians or hospital staff. (Orme Dep. 40, Doc. No. 33-6, at 19.)
When Sound presented a subsequent candidate, Amanda Dawes, Orme met with her for
thirty to forty-five minutes, following which she offered her opinion that Dawes would be a good
fit for the position. (Orme Dep. 41, Doc. No. 33-6, at 20.) She had Dawes’ resume and knew that
she had an MBA and had been at Vanderbilt, in a position where she had staff reporting to her
and was managing and leading a team. (Orme Dep. 41–42, Doc. No. 33-6, at 20–21.)
Orme testified that, at the time she spoke with West about Adams, she did not know that
Adams had made any complaints to WMC. (Orme Dep. 23, Doc. No. 29-7, at 6.) She was not
aware that any employees had made complaints about Dodson and would not have expected
Murphy to report those complaints to her. (Id.) Nor was she aware that employees had
complained that Dodson was receiving favorable treatment from Murphy because of Murphy’s
friendship with Dodson’s wife. (Id.) She had been made aware during the evaluation process that
there were some issues with Murphy’s leadership of the CCU, but she did not “know particulars
other than there was some disharmony going on in Critical Care.” (Orme Dep. 25, Doc. No. 29-
13
7, at 8.)
Murphy testified that she did not believe she spoke with Orme about the issues
concerning Dodson: “I didn’t generally . . . go to Lori [Orme] for this kind of stuff. Usually I
went to her for a physician-related or like process related, but not employee [matters],” and
particularly not if she was “working with Scott [Buchanan] and Phyllis [Molyneux].” (Murphy
Dep. 95, Doc. No. 29-2, at 22.)
The plaintiff points to evidence in the record that she believes supports a conclusion that
Murphy did talk to Orme about the plaintiff’s complaints about Dodson. Specifically, she points
out that Orme reviews the evaluations of approximately 850 employees a year and had no
specific recollection of ever reviewing one of Adams’ performance appraisals. (Orme Dep. 18,
Doc. No. 33-6, at 7.) Orme had never met Adams and would not even know what she looked
like. (Id.) When West called her to tell her that Sound had selected Adams as its candidate for the
liaison position, Orme conducted no investigation to determine what experience Adams had and,
although West was supposed to send her a copy of Adams’ resume, he had not done so. (Orme
Dep. 35–36, Doc. No. 33-6, at 17–18.) Orme had no knowledge of Adams’ ability to interact
with the hospitalist physicians or the hospital staff. (Orme Dep. 40, Doc. No. 33-6, at 19.) Yet,
despite her lack of knowledge of Adams’ background and not having seen a resume, she
recommended in the phone call with West, off the top of her head, that Sound consider other
candidates. The plaintiff suggests that the fact that Orme even recalled who Adams was and
remembered anything about her at that moment suggests that she had discussed Adams with
Murphy. (See Doc. No. 33, at 10–11.)
In addition, Murphy reported directly to Orme. (Orme Dep. 15, Doc. No. 33-6, at 6.)
There are documents in the record that show that Murphy sent an email to Orme and others on
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June 15, 2015 describing a conversation between Murphy and Adams regarding a market
adjustment in pay and Adams’ dissatisfaction with Murphy’s leadership. (Murphy Dep. 83–86 &
Ex. 4, Doc. No. 33-2, at 14–17 & 40–42.) In addition, Murphy wrote a note to Orme regarding
the calculation of the plaintiff’s scan rate for medication and patients. (Murphy Dep. Ex. 3, Doc.
No. 33-2, at 34.)2 The plaintiff insists that Orme knew that Murphy was having difficulties in her
position, knew that her staff were complaining about her, and therefore likely knew that Adams
was among those complaining about Murphy. (Doc. No. 33, at 6.)
In early September 2016, Adams contacted Molyneux and Scott Buchanan, claiming that
she believed she had received an unfavorable reference from WMC with respect to the Sound
HRN position and that she was being retaliated against for her prior complaints. Molyneux and
Buchanan investigated the claim. They obtained statements from both Orme and Murphy.
Molyneux also communicated with Lindsey Vaughan, Associate Counsel for Sound, who
assured her that none of its representatives had received negative feedback from WMC regarding
Adams. Molyneux concluded that neither Orme nor Murphy had provided an employment
reference to Sound regarding Adams. (Molyneux Dep. 91–93, Doc. No. 29-5, at 30–32.)
Molyneux communicated her findings to the plaintiff via letter dated October 5, 2016.
(Molyneux Dep. Ex. 17, Doc. No. 29-5, at 63–64.)
In mid-September 2016, Murphy transitioned to a different role, and Mike Stone became
Director of CCU and the plaintiff’s direct supervisor. Stone did not have any knowledge of the
plaintiff’s complaints to WMC. According to the plaintiff, Cathy Reinhart incorrectly accused
the plaintiff of stealing medication at some point in 2016. The medication was found and the
plaintiff was not disciplined. (Adams Dep. 131–34, Doc. No. 29-1, at 56–59; see also Reinhart
2
This exhibit is undated, and the excerpts of Murphy’s deposition provided by the parties
do not encompass her testimony regarding this exhibit.
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Dep. 84–85, Doc. No. 29-6, at 10–11 (denying that she ever accused Adams of stealing
medication or even thinking that she had stolen medication).) On another occasion, Reinhart
relayed a story to Adams to illustrate the goals she should strive for, in which Reinhart used the
term “nursing bitch from hell.” (Reinhart Dep. 83–84, Doc. No. 29-6, at 9–10.)
The plaintiff voluntarily resigned from WMC effective December 3, 2017.
II.
LEGAL STANDARD
Summary judgment is appropriate where there is no genuine issue as to any material fact
and the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). “By its very
terms, this standard provides that the mere existence of some alleged factual dispute between the
parties will not defeat an otherwise properly supported motion for summary judgment; the
requirement is that there be no genuine issue of material fact.” Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 247–48 (1986). In other words, even if genuine, a factual dispute that is irrelevant
or unnecessary under applicable law is of no value in defeating a motion for summary judgment.
On the other hand, “summary judgment will not lie if the dispute about a material fact is
‘genuine.’” Id.
A fact is “material” within the meaning of Rule 56(c) “if its proof or disproof might
affect the outcome of the suit under the governing substantive law.” Reeves v. Swift Trans. Co.,
446 F.3d 637, 640 (6th Cir. 2006). A genuine dispute of material fact exists if the evidence is
such that a reasonable jury could return a verdict for the nonmoving party. Harris v. Klare, 902
F.3d 630, 634–35 (6th Cir. 2018).
The party bringing the summary judgment motion has the initial burden of identifying
portions of the record—including, inter alia, depositions, documents, affidavits, or
declarations—that it believes demonstrate the absence of a genuine dispute over material facts.
Pittman v. Experian Info. Sols., Inc., 901 F.3d 619, 627–28 (6th Cir. 2018); Fed. R. Civ. P.
16
56(c)(1)(A). The non-moving party must set forth specific facts showing that there is a genuine
issue for trial. Pittman, 901 F.3d at 628.
The court should view the facts and draw all reasonable inferences in favor of the nonmoving party. Id. Credibility judgments and weighing of evidence are improper. Hostettler v.
Coll. of Wooster, 895 F.3d 844, 852 (6th Cir. 2018). As noted above, where there is a genuine
dispute as to any material fact, summary judgment is not appropriate. Id. The court determines
whether sufficient evidence has been presented to make the issue of fact a proper jury question.
Id. The mere existence of a scintilla of evidence in support of the nonmoving party’s position
will be insufficient to survive summary judgment; rather, there must be evidence upon which the
jury could reasonably find for the nonmoving party. Rodgers v. Banks, 344 F.3d 587, 595 (6th
Cir. 2003).
III.
ANALYSIS
A.
Hostile Work Environment Claim
“When the workplace is permeated with ‘discriminatory intimidation, ridicule, and
insult,’ that is ‘sufficiently severe or pervasive to alter the conditions of the victim’s employment
and create an abusive working environment,’ Title VII is violated.” Harris v. Forklift Sys., Inc.,
510 U.S. 17, 21 (1993) (quoting Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 65, 67 (1986)).
To establish a prima facie case of hostile work environment based on sex under Title VII, the
plaintiff must prove that (1) she is a member of a protected class; (2) she was subjected to
unwelcome harassment; (3) the harassment was based on sex; (4) the harassment created a
hostile work environment; and (5) the employer is liable. Smith v. Rock-Tenn Servs., Inc., 813
F.3d 298, 307 (6th Cir. 2016).
In this case, there is no dispute that the plaintiff, as a woman, is a member of a protected
class. For purposes of its motion, the defendant does not contest that Adams was subjected to
17
unwelcome harassment based on sex. However, WMC argues both that the alleged harassment
was not sufficiently severe or pervasive to alter the conditions of the plaintiff’s employment and
that there is no basis for finding the employer liable.
1.
Whether the Conduct Was Sufficiently Severe or Pervasive
To be actionable, the hostile work environment “must be both objectively and
subjectively offensive, one that a reasonable person would find hostile or abusive, and one that
the victim in fact did perceive to be so.” Faragher v. City of Boca Raton, 524 U.S. 775, 787
(1998). In determining whether alleged harassment is sufficiently severe or pervasive to rise to
the level of a “hostile work environment,” the court must look at the “totality of the
circumstances.” Williams v. Gen. Motors Corp., 187 F.3d 553, 562 (6th Cir. 1999) (citing
Harris, 510 U.S. at 23).
Under this test, “the issue is not whether each incident of harassment standing alone is
sufficient to sustain the cause of action in a hostile environment case, but whether—taken
together—the reported incidents make out such a case.” Id. Factors relevant to this analysis
include “the frequency of the discriminatory conduct; its severity; whether it is physically
threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes
with an employee’s work performance.” Harris, 510 U.S. at 23; Rock-Tenn, 813 F.3d at 309.
“‘[S]imple teasing,’ offhand comments, and isolated incidents (unless extremely serious) will not
amount to discriminatory changes in the ‘terms and conditions of employment.’” Faragher, 524
U.S. at 788 (quoting Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 82 (1998)). The
determination of whether harassing conduct is severe or pervasive is “quintessentially a question
of fact.” Rock-Tenn, 813 F.3d at 310 (citations omitted).
The Sixth Circuit has recognized that the determination of whether harassing conduct is
sufficiently severe or pervasive to establish a hostile work environment is not susceptible of a
18
“mathematically precise test.” Abeita v. TransAm. Mailings, Inc., 159 F.3d 246, 251 (6th Cir.
1998); see id. (noting that the Supreme Court’s test uses the phrase “severe or pervasive” rather
than “severe and pervasive” (citing Harris, 510 U.S. at 21)). While harassment involving an
“element of physical invasion” is more severe than harassing comments alone,” Hawkins v.
Anheuser-Busch, Inc., 517 F.3d 321, 334 (6th Cir. 2008) (quoting Williams, 187 F.3d at 563),
“verbal conduct alone can be the basis of a successful hostile work environment claim.” Black v.
Zaring Homes, Inc., 104 F.3d 822, 826 (6th Cir. 1997). In addition, while the fact that comments
are directed to the plaintiff is a factor that may contribute to their severity, “sex-based comments
need not be directed at a plaintiff in order to constitute conduct violating Title VII.” Id.
In Black, the Sixth Circuit reversed a jury verdict for the plaintiff, finding, as a matter of
law, that her allegations did not show the existence of a hostile work environment. There, the
plaintiff alleged that she was the target of sexually harassing comments, typically taking place at
biweekly meetings, including one colleague’s comment that there was nothing he “‘like[d] more
in the morning than sticky buns,’ while looking plaintiff up and down, smiling, and ‘wriggl[ing]’
his eyebrows,” id. at 823; sexually inappropriate suggestions about the name that should be given
a piece of property adjacent to a Hooters Restaurant, which occurred at “numerous meetings”
and affected the plaintiff’s ability to work because she worried that any comment she might
make would “throw everybody off for awhile,” id. at 824; telling the plaintiff she was “paid great
money for a woman,” id.; joking about an individual’s name, which was pronounced “bosom,”
id.; asking the plaintiff if she had been out dancing on the tables at a biker bar; and referring to
her as a “broad,” id. The court held that, “viewing the totality of the circumstances,” the conduct
as alleged by the plaintiff was “merely offensive” and, as such, was not severe or pervasive
enough to create an objectively hostile work environment. While the court acknowledged that
19
sex-based comments did not need to be directed to the plaintiff, “this fact contributes to our
conclusion that the conduct here was not severe enough to create an objectively hostile
environment.” Id. at 826 (citing Baskerville v. Culligan Int’l Co., 50 F.3d 428, 430 (7th Cir.
1995)).
On the other hand, in Abeita, the district court had granted summary judgment to the
defendant, relying on Black and finding that the conduct as alleged by the plaintiff was no more
severe than that alleged in Black. The Sixth Circuit reversed, finding a disputed issue of fact as to
whether the conduct in question was sufficiently pervasive to create a hostile work environment.
There, the harassing supervisor made comments to the plaintiff about wanting to sleep with the
models with whom they worked, addressed sexually charged comments to the plaintiff indicating
his attraction to her, and repeatedly made sexual comments about wanting to have sex with a
model in a Frederick’s of Hollywood catalog. The plaintiff testified that the supervisor’s sexual
comments were “ongoing,” “commonplace,” “continuing,” and “too numerous to recall.” Abeita,
159 F.3d at 249. She also testified that he made comments about women that were not overtly
sexual but “arguably reflect[ed] degrading gender stereotyping,” including comments about other
female employees’ weight but not about male employees’ weight. Id. The Sixth Circuit agreed
that the conduct in question was not particularly severe, but nonetheless determined that
summary judgment was not warranted, noting that the district court’s analysis omitted the
plaintiff’s assertion that the supervisor’s sexual comments were “commonplace,” “ongoing,” and
“continuing.” Id. at 252. The appellate court stated:
This omission is critical because . . . the specific statements made by Katz [the
plaintiff’s supervisor] in the presence of Abeita and recounted by Abeita appear to
be of approximately equal severity to those found in Black. Only one of the
statements was about [the plaintiff] . . . and it does not appear objectively much
more hostile than the “sticky buns” or “dancing on tables” statements in Black.
The rest of the specific sexual and gendered statements by defendant Katz
20
concerned women other than the plaintiff, and appear to be of approximately
equal severity as those found in Black. If these specific statements were the only
ones that plaintiff alleged occurred over her nearly seven years of employment,
we would agree [that] these specific statements were neither so severe nor so
pervasive that a reasonable person could find a hostile work environment.
However, plaintiff’s assertion that comments like these were commonplace,
ongoing, and continual establishes that the statements were more pervasive or
widespread than the ones made in Black. . . . [The supervisor’s] remarks about his
sexual interest in female employees and models went beyond what was job
related. Unlike Black, the comments here were not the banter of a group.
Plaintiff’s inability to recount any more specific instances goes to the weight of
her testimony, a matter for the finder of facts. Also, Katz . . . made all of the
statements at issue here and the plaintiff worked with [him] on a daily basis.
These factors . . . help to distinguish the instant case from Black.
Id.; accord Armstrong v. Whirlpool Corp., 363 F. App’x 317, 318 (6th Cir. 2010) (reversing
summary judgment on hostile work environment claim where the plaintiffs adequately alleged
that the racially harassing comments were “ongoing, commonplace, and continuous”); Hawkins,
517 F.3d at 334 (reversing the district court’s grant of summary judgment on the hostile work
environment claims of two plaintiffs, in part because the plaintiffs alleged a “campaign of
harassment [that] was continuous”); Ellsworth v. Pot Luck Enters., Inc., 624 F. Supp. 2d 868,
879–80 (M.D. Tenn. 2009) (denying summary judgment on the plaintiff’s hostile work
environment claim, where the plaintiff alleged being propositioned for sex between six and eight
times in the six-month period that he worked for the defendant and that sexual comments were
made on a daily basis, noting that, “[l]ike the conduct in Abeita, the conduct that Ellsworth
alleges was continuous, ongoing, and commonplace”).
The defendant argues in this case that the plaintiff alleges only a series of non-severe,
isolated comments that are merely offensive and that her vague and conclusory allegations of
other conduct are not corroborated by other evidence and cannot be used to support her hostile
work environment claim. (Doc. No. 30, at 13.) The cases upon which the defendant relies,
21
however, are inapposite. For instance, in Ladd v. Grand Trunk Western Railroad, Inc., 552 F.3d
495 (6th Cir. 2009), the plaintiff testified that she was subjected to two isolated incidents of
equipment tampering and, further, complained very generally that she was subject to unwelcome
sexual comments on a daily basis. She had not complained about these comments when they
occurred and could only provide one specific example. The Sixth Circuit found that these
allegations did not establish discriminatory conduct that was either sufficiently severe or
pervasive:
Ladd in her deposition only testified that one specific incident of the use of a sexor race-based epithet was directed at her over the entire span of her employment.
Indeed, in drawing inferences in her favor for the purposes of summary judgment,
we are limited by her total lack of specificity as to verbal abuse she received apart
from the aforementioned remarks.
Id. at 501; see also Fuelling v. New Vision Med. Labs. LLC, 284 F. App’x 247, 259–60 (6th Cir.
2008) (granting summary judgment on hostile work environment claim where plaintiff alleged
that she was referred to with derogatory language “on numerous occasions” but was only able to
identify the speaker on one occasion); Fasone v. Clinton Twp., No. 97-3267, 1998 WL 165147,
at *1 (6th Cir. Apr. 3, 1998) (hostile work environment claim failed where plaintiff alleged
“constant harassment” but only identified “a few specific discriminatory comments”); Cooper v.
Jackson-Madison Cty. Gen. Hosp. Dist., 742 F. Supp. 2d 941, 956 (W.D. Tenn. 2010) (where the
plaintiff could only remember one specific instance of a racial remark, the court found that not
sufficient to support his “conclusory assertions” that his supervisor referred to him as “whitey”
or “white boy” every time he visited the Brownsville facility); Amadasu v. Donovan, No. 1:01CV-210, 2006 WL 1401648, at *9 (S.D. Ohio May 18, 2006) (holding that the plaintiff’s
unsupported and conclusory allegations that he was “subjected to unwelcome conduct
22
constituting harassing racial slurs, epithets, stereotypes, disrespect, verbal abuse and innuendoes”
were insufficient to state a prima facie case of hostile work environment).
The court finds that the facts of this case are more similar to those of Abeita than to those
of Black or the other cases finding that the plaintiffs’ conclusory allegations of constant
harassment were insufficient. Dodson’s alleged harassing conduct was not particularly severe,
but the plaintiff has identified at least seven specific incidents of inappropriate conduct and
alleges, further, that his harassing behavior was ongoing and continuing: “All the time. He made
inappropriate comments all the time.” (Adams Dep. 75, Doc. No. 29-1, at 32.) As in Abeita, the
plaintiff’s “inability to recount any more specific instances goes to the weight of her testimony, a
matter for the finder of facts.” Abeita, 159 F.3d at 252. In addition, although the plaintiff failed to
provide specifics as to how frequently she was in contact with Dodson, she alleged that he came
down to her floor and into the break room on her floor frequently for no reason. It also appears
that, at times at least, they were assigned to work on the same floor. The evidence in her favor is
not strong, but it is sufficient to create a material factual dispute as to whether Dodson’s conduct
was sufficiently severe or pervasive to give rise to an objectively hostile work environment.
The defendant also argues that the plaintiff has not shown that she subjectively perceived
the conduct to be harassing. However, she and others reported Dodson’s conduct numerous times
to Murphy, her direct supervisor, who failed to take any effective action and appeared to
minimize or excuse the behavior. Adams finally made two formal reports to Molyneux. See
Powers v. Chase Bankcard Servs., Inc., No. 2:10-cv-332, 2012 WL 1021704, at *9 (S.D. Ohio
Mar. 26, 2012) (“Plaintiffs consistently complained to their mangers about the environment,
which demonstrates they were subjectively offended by the working conditions . . . .”).
The defendant further argues that there is no evidence that the plaintiff’s job performance
23
was affected by Dodson’s conduct. Indeed, courts have found that, where there is no evidence
that the harassment caused a plaintiff not to perform her job duties, or to perform them in a
substandard fashion, there is no genuine issue of fact as to whether the harassment unreasonably
interfered with her ability to do her job. See, e.g., Kelly v. Senior Ctrs., Inc., 169 F. App’x 423,
430 (6th Cir. 2006). In this case, however, the plaintiff alleges that she personally found
Dodson’s conduct to be “emotionally distressing” to the point that it caused her not to want to go
to work; that it interfered with her performance of her job “because you didn’t know what he was
going to say to you”; and that, although she was never prevented from treating a patient, she
would at times have to “compose herself” after he made comments, which “took time away from
[her] patients.” (Adams Dep. 87–89 Doc. No. 29-1, at 41–44.) That is, she adequately alleges
that Dodson’s conduct made it more difficult to do her job. See Gallagher v. C.H. Robinson
Worldwide, Inc., 567 F.3d 263, 274 (6th Cir. 2009) (“[T]he district court also erred in requiring
evidence that Gallagher’s work performance suffered measurably as a result of the
harassment. . . . In Williams, the court made it clear that a plaintiff need not prove a tangible
decline in her work productivity; only ‘that the harassment made it more difficult to do the job.’”
(quoting Williams, 187 F.3d at 567).
Again, the court cannot find that the evidence is so one-sided that no reasonable jury
could find in favor of the plaintiff on the question of whether the harassment was subjectively
offensive to the plaintiff to the point of creating a hostile work environment.
2.
Whether the Employer May Be Liable
Even after a hostile work environment has been established, for an employer to be liable,
the plaintiff must show both that the employer knew or should have known of the conduct and
failed to take prompt and appropriate corrective action. Rock-Tenn, 813 F.3d at 307. Generally,
“when the allegations of sexual harassment involve a coworker and the employer has fashioned a
24
response, the employer will only be liable ‘if its response manifests indifference or
unreasonableness in light of the facts the employer knew or should have known.’” McCombs v.
Meijer, Inc., 395 F.3d 346, 353 (6th Cir. 2005) (quoting Blankenship v. Parke Care Ctrs., Inc.,
123 F.3d 868, 872 (6th Cir. 1997)). “The act of discrimination by the employer in such a case is
not the harassment, but rather the inappropriate response to the charges of harassment.” Id.
Evidence that a supervisor knew of the harassing conduct suffices to establish constructive
notice. Baugham v. Battered Women, Inc., 211 F. App’x 432, 439 (6th Cir. 2006) (citing
Randolph v. Ohio Dep’t of Youth Servs., 453 F.3d 724, 735 (6th Cir. 2006)).
The defendant argues that the plaintiff only reported two instances of sexual harassment
to WMC, by making formal reports to Molyneux. It argues that WMC responded appropriately
to both: Jennifer Murphy addressed the first in a formal disciplinary session, and Molyneux
investigated the second, but Dodson resigned before any formal disciplinary action arising from
the alleged harassment could be taken. The plaintiff, however, has alleged sufficient facts to
show that her direct supervisor, Jennifer Murphy, was aware of Dodson’s inappropriate behavior
but repeatedly minimized it, telling the plaintiff and her colleagues that they should ignore or
overlook his conduct. Moreover, Dodson had a documented history of making inappropriate
comments, as another employee had reported harassing behavior in 2014. The evidence in the
record is sufficient to give rise to a question of fact as to whether WMC knew or should have
known about Dodson’s harassing behavior well before the plaintiff reported it directly to
Molyneux. To be clear, a jury could also find that the plaintiff and other employees, in making
their complaints about Dodson to Murphy, were complaining generally that his conduct was
inappropriate and offensive but not that it that it was sufficiently offensive to create a hostile
work environment. Regardless, this is an issue for the jury.
25
Likewise, viewing the evidence in the light most favorable to Adams, a jury could find
that Murphy’s inaction amounted to indifference or unreasonableness. Accord McCombs, 395
F.3d at 355. Murphy addressed the 2014 complaint only by discussing it with Dodson during his
annual performance appraisal, several months after the event. Even after the plaintiff reported the
comments about Dodson’s son’s girlfriend to Molyneux in the spring of 2016 and asked that she
not be required to work at the same time as Dodson, it appears that it took a period of several
months for this request to be distributed to the supervisors in charge of scheduling, and, even
then, the plaintiff received no guarantee that she would not be required to work at the same time
as Dodson. Further, the incident that took place in September 2016 established that she did, at
times, continue to be scheduled at the same time as he was and that the previous counseling he
had received had no effect. Based on this evidence, a jury could find that the defendant did not
take prompt and effective remedial action in response to the plaintiff’s complaints.
In sum, the court finds that the defendant is not entitled to summary judgment on the
plaintiff’s hostile work environment claim.
B.
Retaliation Claim
To make a prima facie showing of Title VII retaliation, an employee must show “(1)
he . . . engaged in protected activity, (2) the employer knew of the exercise of the protected right,
(3) the defendant took an action that was ‘materially adverse’ to the plaintiff, and (4) there was a
causal connection between the protected activity and the adverse employment action.” Laughlin
v. City of Cleveland, 633 F. App’x 312, 315 (6th Cir. 2015) (quoting Niswander v. Cincinnati
Ins. Co., 529 F.3d 714, 720 (6th Cir. 2008)). “If the employee makes this showing, the burden
shifts to the employer to articulate a legitimate, nondiscriminatory reason for its actions. If the
employer meets this burden, the employee must demonstrate that the legitimate reason offered by
the employer was a pretext designed to mask retaliation.” Id. (quoting Imwalle v. Reliance Med.
26
Prods., Inc., 515 F.3d 531, 544 (6th Cir. 2008)). A plaintiff can demonstrate pretext by showing
that the proffered reason (1) has no basis in fact, (2) did not actually motivate the defendant’s
challenged conduct, or (3) was insufficient to motivate the challenged conduct. Blizzard v.
Marion Tech. Coll., 698 F.3d 275, 285 (6th Cir. 2012) (citations omitted). “The three-part test
need not be applied rigidly. Rather, ‘[p]retext is a commonsense inquiry: did the employer fire
the employee for the stated reason or not?’” Id. (quoting Chen v. Dow Chem. Co., 580 F.3d 394,
400 (6th Cir. 2009)).
The defendant argues that the plaintiff cannot establish “knowledge of the protected
activity,” because Lori Orme did not know that Adams had engaged in protected activity. The
defendant also argues that the plaintiff cannot prove a “causal connection,” because she cannot
show that Orme’s failure to support her candidacy was the “but for” cause of Sound’s decision
not to hire her. (Doc. No. 30, at 17–18.) Finally, WMC argues that, even if the plaintiff could
make out a prima facie case of retaliation, she cannot show that Orme’s proffered reason for her
action is pretextual.
Regarding the second element of her claim, the plaintiff must establish Orme’s
knowledge of the protected activity, not simply WMC’s knowledge. Accord Taylor v. Geithner,
703 F.3d 328, 336 (6th Cir. 2013) (stating the plaintiff was required to show that the supervisor
who took the adverse action knew of the plaintiff’s protected activity); Frazier v. USF Holland,
Inc., 250 F. App’x 142, 148 (6th Cir. 2007) (“The decisionmaker’s knowledge of the protected
activity is an essential element of the prima facie case of unlawful retaliation.” (citing Mulhall v.
Ashcroft, 287 F.3d 543, 551 (6th Cir. 2002)); see also Scott v. Eastman Chem. Co., 275 F. App’x
466, 482 (6th Cir. 2008) (“[E]ven to prove a causal connection, Scott must establish that the
decisionmakers involved in the promotions at issue had knowledge of the protected activity, as
27
one cannot retaliate against an employee for engaging in protected activity unless he knew the
employee had done so.”).
The plaintiff does not allege that she informed Orme about her complaint, and Orme
denies any knowledge that anyone had complained about Dodson. (Orme Dep. 23, Doc. No. 297, at 6.) Murphy testified that she did not believe she told Orme and that this type of personnel
dispute was not the kind of thing she would ordinarily discuss with Orme, particularly if
Molyneux or Buchanan was involved, as was the case here. (Murphy Dep. 95–96, Doc. No. 33-2,
at 18–19.)
The plaintiff argues that “ample” circumstantial evidence supports the inference that
Orme had discussed the matter with Murphy. (Doc. No. 33, at 6.) She argues that Murphy
reported directly to Orme and that Murphy kept Orme “informed of matters in the CCU
pertaining to Plaintiff.” (Id.) Her examples of that assertion are that, on one occasion in June
2015, Murphy sent Orme and others an email “describing a conversation with Plaintiff regarding
a market adjustment in pay and Plaintiff’s dissatisfaction with Murphy’s leadership.” (Id. (citing
Murphy Dep. 83–84 & Ex. 4, Doc. No. 33-2, at 14–15 & 40–42).) In addition, Murphy wrote a
note to Orme “regarding the calculation of Plaintiff’s scan rate for medication and patients.” (Id.
(citing Murphy Dep. Ex. 3, Doc. No. 33-4, at 32).) The plaintiff also argues that Orme
admittedly knew that, around the same timeframe that Adams was making her complaints,
Murphy was experiencing personal and professional difficulties. Orme was aware of these
difficulties and the “disharmony” in the CCU. (Id. at 7.)
The evidence offered by the plaintiff is simply not enough to permit a reasonable jury to
draw the inference that Orme and Murphy discussed the plaintiff’s complaints about Dodson.
The plaintiff can point to only two instances of documented personnel-related contact between
28
Orme and Murphy regarding the plaintiff. The absence of additional contacts tends to
substantiate Murphy’s statement that she rarely went to Orme with personnel issues unless they
were “process-related” or “physician-related.” (Murphy Dep. 95, Doc. No. 33-2, at 18.) None of
the email exchanges in the record regarding the Dodson complaints reflects that Orme was
copied on them, and no witness testified that Orme would have been involved or had any reason
to know about the complaints. The plaintiff’s speculation that Orme must have known is just
that: speculation. While circumstantial evidence can support a reasonable inference of the
decisionmaker’s knowledge of protected activity, such evidence must be comprised of “specific
facts,” not merely “conspiratorial theories,” “flights of fancy, speculations, hunches, intuitions,
or rumors,” Mulhall, 287 F.3d at 552, particularly “[w]here the decisionmaker denies having
knowledge of the alleged protected activity.” Profitt v. Metro. Gov’t, 150 F. App’x 439, 443 (6th
Cir. 2005).
The plaintiff suggests that the only logical explanation for Orme’s recommendation to
Sound that it consider other candidates is that Orme was aware of the plaintiff’s protected
activity, because otherwise there is no reason that Orme should have even known who the
plaintiff was off the top of her head during the telephone call with Adam West. This objection,
again, amounts to pure speculation and does not rely on specific facts that constitute
circumstantial evidence of Orme’s knowledge.
The court finds that the plaintiff has failed to carry her burden of showing that Orme was
aware of the plaintiff’s protected activity and, therefore, cannot prove that Orme’s statement to
Sound was retaliatory. The defendant is entitled to summary judgment on this claim.
C.
Retaliatory Harassment
The Complaint may also be reasonably construed as asserting a claim of retaliatory
harassment. The plaintiff alleges that, after being removed from consideration for the HRN
29
position with Sound and making her second formal complaint to Molyneux about Dodson, she
was subjected to increased scrutiny of her job performance. (Doc. No. 1 ¶ 30.) WMC moves for
summary judgment on this claim. (Doc. No. 30, at 19–20.) Adams did not respond to this
argument, either factually or legally. In its Reply, WMC asserts that Adams has abandoned any
argument with respect to her claim of retaliatory harassment. (Doc. No. 35, at 7 n.2.)
Irrespective of the plaintiff’s failure to respond, “[t]he party bringing the summary
judgment motion has the initial burden of informing the Court of the basis for its motion and
identifying portions of the record that demonstrate the absence of a genuine dispute over material
facts.” Rodgers v. Banks, 344 F.3d 587, 595 (6th Cir. 2003). The moving party may satisfy this
burden by presenting affirmative evidence that negates an element of the non-moving party’s
claim or by demonstrating an absence of evidence to support the nonmoving party’s case. Id.
Rather than presuming that the plaintiff has abandoned the claim, the court must consider
whether the defendant has met its initial burden and demonstrated that it is entitled to judgment
as a matter of law on this claim.
The Sixth Circuit has recognized that retaliatory harassment by a supervisor is actionable
under Title VII. Barrett v. Whirlpool Corp., 556 F.3d 502, 516 (6th Cir. 2009) (citing Morris v.
Oldham Cty. Fiscal Court, 201 F.3d 784, 792 (6th Cir. 2000)). The elements of the claim are
identical to an ordinary Title VII retaliation claim, except that the plaintiff must show that she
was subjected to “severe or pervasive retaliatory harassment,” rather than a single materially
adverse action, that was causally connected to her engaging in protected activity. Id.
The court finds that WMC has met its burden of informing the court of the “basis for its
motion and identifying portions of the record that demonstrate the absence of a genuine dispute
over material facts.” Rodgers, 344 F.3d at 595. WMC discusses the evidence in the record and
30
points out that there is no evidence that one of the two supervisors who allegedly subjected
Adams to increased scrutiny—Mike Stone, Murphy’s successor—had knowledge of the
plaintiff’s complaints about Dodson. And the two incidents involving Cathy Reinhart that the
plaintiff identifies as harassing are not sufficiently severe or pervasive to constitute retaliatory
harassment. The court will grant the motion for summary judgment on this claim as well.
IV.
CONCLUSION
For the reasons set forth herein, the defendant’s Motion for Summary Judgment will be
granted in part and denied in part. An appropriate order is filed herewith.
____________________________________
ALETA A. TRAUGER
United States District Judge
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