Quick v. VistaCare, Inc.
Filing
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Memorandum Opinion and Order granting 18 Motion for Summary Judgment. The remaining claim of intentional infliction of emotional distress against VistaCare, which is governed exclusively by state law, is REMANDED to the 298th District Court for Dallas County, Texas, from which it was removed. (Ordered by Senior Judge A. Joe Fish on 3/29/2012) (twd)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
SHARON QUICK,
Plaintiff,
VS.
VISTACARE, INC.,
Defendant.
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CIVIL ACTION NO.
3:10-CV-1531-G
MEMORANDUM OPINION AND ORDER
On or about August 18, 2003, the defendant VistaCare, Inc. (“VistaCare”)
hired the plaintiff Sharon Quick (“Quick”) as a registered nurse case manager.
Plaintiff’s Original Petition and Request for Disclosure (“Petition”) ¶ 6, attached to
Defendant VistaCare, Inc.’s Notice of Removal (docket entry 1) as Exhibit A (docket
entry 1-2). At the time VistaCare hired Quick, Quick disclosed that she suffered
from insomnia, a “disability” for which she was under medical care and thus required
“certain reasonable accommodations.” Id. Consequently, VistaCare set Quick’s
workday to begin at 12:00 noon and to end at 8:00 p.m. Id. VistaCare, however,
contends that Quick’s workday was scheduled from 12:00 p.m. until 8:00 p.m.
because she requested these hours as a “night person” and did not disclose a disability
to case manager Marlene Casco, who hired Quick. Defendant’s Brief in Support of
its Motion for Summary Judgment (“Motion”) at 3 (docket entry 19). As a case
manager, Quick attended, either by speaker phone or in person, “sporadic” Monday
meetings that began at 8:00 a.m. or 8:30 a.m. Id.
In December of 2004, VistaCare hired Elise Powers (“Powers”) as a director.
Petition ¶ 7. According to Quick, Powers “repeatedly harassed” Quick about her
work hours. Id. In August of 2006, at the insistence of Powers, Quick provided
VistaCare with documentation that Quick was unable to work from midnight to
10:00 a.m. Id. ¶ 8. In her review that same month, Quick’s work hours changed
from 11:00 a.m. to 8:00 p.m., and she received a merit raise. Id.
In August of 2006, as a result of a state Medicare audit, Powers implemented
Monday 8:30 a.m. meetings, meetings which had previously been held sporadically.
Motion at 4. Powers instructed Quick to attend these meetings. Id. Quick then
submitted a note from Dr. Gustavo Day which indicated that she could not work
from midnight until 10:00 a.m. Id. Dr. Day did not diagnose Quick with insomnia.
Id. at 5.
In August of 2007, Quick took a leave of absence from VistaCare under the
Family and Medical Leave Act (“FMLA”) in order to have shoulder surgery. Petition
¶ 9; Motion at 6. At that time, Quick avers, “[d]uring her 4 years as a Registered
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Nurse Case Manager, [she] received regular positive evaluations and merit raises.”
Petition ¶ 9. Though she exhausted her FMLA leave, VistaCare extended Quick’s
leave period. Motion at 6.
In January of 2008, Quick returned from her leave of absence, and VistaCare
offered her a position as director of public relations.1 Petition ¶ 10. Quick declined
the offer as it required her to attend early morning meetings. Id. Instead, Quick
accepted a position as hospital liaison and transitioned into the director of public
relations position after a couple of months. Id. Quick accepted the director of public
relations position only because VistaCare agreed that the only morning meeting
which required her attendance was the Monday marketing meeting at 10:00 a.m. Id.
In January of 2008, Powers first became primarily responsible for Quick’s work
schedule. Id. ¶ 11. Powers purportedly ridiculed and criticized Quick in front of
other VistaCare employees for Quick’s inability to arrive at work by 8:30 a.m. Id. In
August of 2008, Quick’s supervisor gave her a merit raise, but the harassment
continued. Id. ¶ 12.
In April of 2008, Power received a complaint from the Medical City Hospital
Director of Social Work that Quick had committed serious HIPAA2 violations at the
hospital and was no longer welcome there. Motion at 6.
1
VistaCare contends the position was in fact director of professional
relations. Motion at 6.
2
The Health Insurance Portability and Accountability Act of 1996.
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On November 17, 2008, Powers allegedly told Quick that if Quick could not
arrive at work by 8:30 a.m., then Quick no longer had a job at VistaCare. Petition
¶ 13. Quick claims that Powers “acting as an agent of VistaCare, terminated [Quick]
by ceasing to provide [Quick] with the reasonable accommodations that she required
to perform her job” and thus discriminated against Quick based on her disability. Id.
VistaCare contends that Quick resigned. Motion at 8-9.
On July 24, 2009, Quick jointly filed a charge of discrimination (“charge”)
with the Texas Workforce Commission and the Equal Employment Opportunity
Commission (“EEOC”) alleging discrimination due to denial of a reasonable
accommodation to adjust her work hours on November 15, 2008, and her discharge
on November 17, 2008. Id. at 9; see also Appendix to Defendant’s Brief in Support of
its Motion for Summary Judgment (“App.”) at App. 157. Quick including a
statement that “I believe I have been discriminated against because of my disability in
violation of the Americans with Disabilities Act of 1990.” There is no mention of
any other grounds for relief. In support of her charge, Quick included a note from a
new doctor, which Quick admits was submitted after she left VistaCare. Motion at 9.
On June 3, 2010, the EEOC issued a dismissal and notice of right to sue. Id. at 10.
On July 6, 2010, Quick filed a case in the 298th Judicial District Court of
Dallas County, Texas. On August 6, 2010, VistaCare timely removed the case to this
court. Under a theory of respondeat superior, Quick contends that VistaCare
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(1) violated the Americans with Disabilities Act (“the ADA”), 42 U.S.C. § 12101, et
seq., and the Texas Commission on Human Rights Act, TEX. LAB. CODE ANN.
§ 21.001, et seq. (Vernon 1996) (“TCHRA”), by discharging her because of her
disability and failing to make reasonable accommodation to her disability,
(2) violated Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C.
§ 2000e, et seq., by creating and allowing a hostile work environment, and
(3) intentionally inflicted emotional distress on her. See Petition at 4-6.
VistaCare moves for summary judgment on all of Quick’s claims. Quick has
failed to respond to VistaCare’s arguments regarding her hostile work environment
claim under Title VII and her intentional infliction of emotional distress claim, as
well as VistaCare’s arugment that Quick failed to exhaust her TCHRA disability
claim. Defendant’s Reply to Plaintiff’s Response to Defendant’s Motion for
Summary Judgment (“Reply”) at 1 (docket entry 29). Quick only responded to
VistaCare’s motion for summary judgment on her ADA claim. See generally Plaintiff’s
Brief in Support of Her Response to Defendant’s Motion for Summary Judgment
(docket entry 27).
II. ANALYSIS
A. The Summary Judgment Standard
Summary judgment is proper when the pleadings and evidence before the court
show that no genuine issue exists as to any material fact and that the moving party is
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entitled to judgment as a matter of law. FED. R. CIV. P. 56(a); see also Celotex
Corporation v. Catrett, 477 U.S. 317 (1986). The disposition of a case through
summary judgment “reinforces the purpose of the Rules, to achieve the just, speedy,
and inexpensive determination of actions, and, when appropriate, affords a merciful
end to litigation that would otherwise be lengthy and expensive.” Fontenot v. Upjohn
Company, 780 F.2d 1190, 1197 (5th Cir. 1986). While all of the evidence must be
viewed in a light most favorable to the nonmovant, Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 255 (1986) (citing Adickes v. S.H. Kress & Company, 398 U.S. 144, 158-59
(1970)), neither conclusory allegations nor unsubstantiated assertions will satisfy the
nonmovant’s summary judgment burden. Calbillo v. Cavender Oldsmobile, Inc., 288
F.3d 721, 725 (5th Cir. 2002) (citing Little v. Liquid Air Corporation, 37 F.3d 1069,
1075 (5th Cir. 1994) (en banc)). A genuine issue of material fact exists “if the
evidence is such that a reasonable jury could return a verdict for the nonmoving
party.” Anderson, 477 U.S. at 248.
The movant makes the necessary showing by informing the court of the basis
of its motion and by identifying the portions of the record which reveal there are no
genuine material fact issues. Celotex, 477 U.S. at 323. The pleadings, depositions,
admissions, and affidavits, if any, must demonstrate that no genuine issue of material
fact exists. FED. R. CIV. P. 56(c).
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If the movant makes the required showing, the nonmovant must then direct
the court’s attention to evidence in the record sufficient to establish that there is a
genuine issue of material fact for trial. Celotex, 477 U.S. at 323-24. To carry this
burden, the “opponent must do more than simply show that there is some
metaphysical doubt as to the material facts.” Matsushita Electric Industrial Co., Ltd. v.
Zenith Radio Corporation, 475 U.S. 574, 586 (1986). Instead, the nonmovant must
show that the evidence is sufficient to support a resolution of the factual issue in her
favor. Anderson, 477 U.S. at 249. When conflicting evidence is presented, the court
is not permitted to make credibility determinations regarding the evidence. See
Lindsey v. Prive Corporation, 987 F.2d 324, 327 (5th Cir. 1993). The nonmovant
cannot survive a motion for summary judgment, however, by merely resting on the
allegations in her pleadings. Isquith for and on behalf of Isquith v. Middle South Utilities,
Inc., 847 F.2d 186, 199 (5th Cir.), cert. denied, 488 U.S. 926 (1988); see also Celotex,
477 U.S. at 324.
B. The Charge
A condition precedent for bringing suit on an employment discrimination
claim under Title VII is the timely filing and exhaustion of an EEOC charge. See 42
U.S.C. § 2000e-5(e)(1); Taylor v. Books A Million, Inc., 296 F.3d 376, 379 (5th Cir.
2002), cert. denied, 537 U.S. 1200 (2003). “The scope of a Title VII complaint is
limited to the scope of the EEOC investigation which can reasonably be expected to
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grow out of the charge of discrimination.” Thomas v. Texas Department of Criminal
Justice, 220 F.3d 389, 395 (5th Cir. 2000) (citing Young v. City of Houston, 906 F.2d
177, 179 (5th Cir. 1990)).
When Quick filed her charge with the EEOC, she did not include any
allegations under Title VII, including a hostile work environment. Quick complained
only that VistaCare violated the ADA. See App. 157 (“I believe I have been
discriminated against because of my disability in violation of the Americans with
Disabilities Act of 1990.”). Thus, Quick has failed to exhaust her administrative
remedies, and her Title VII claims must be dismissed. Furthermore, Quick only
responded to VistaCare’s motion for summary judgment as to her ADA claim, and
she did not respond to VistaCare movement for summary judgment on her hostile
work environment claim.3
VistaCare argues that Quick’s TCHRA claim is time-barred because the
corresponding charge of discrimination was not timely filed. Motion at 11. Under
the TCHRA, a plaintiff is required to file her charge within 180 days of the date of
the alleged discrimination, and under Title VII, the deadline is 300 days. Messer v.
Meno, 130 F.3d 130, 134 (5th Cir. 1997), cert. denied, 525 U.S. 1067 (1999);
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Quick also failed to respond to VistaCare’s motion for summary
judgment as to her intentional infliction of emotional distress claim, as well as
VistaCare’s argument that Quick failed to exhaust her TCHRA disability claim.
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Mennor v. Fort Hood National Bank, 829 F.2d 553, 555 n.8 (5th Cir. 1987). Quick
claims that she was discriminated against on November 15, 2008, but she filed her
charge on July 24, 2009, 251 days later. Motion at 11. Quick does not dispute this
fact. See Rule 56(e), F.R. CIV. P. Thus, her TCHRA claim is time barred.
C. ADA Claim
The ADA prohibits discrimination in employment against qualified persons
with a disability.4 Dupre v. Charter Behavioral Health Systems of Lafayette Inc., 242 F.3d
610, 613 (5th Cir. 2001); see also 42 U.S.C. § 12112(a). To establish a prima facie
case under the ADA, Quick must prove (1) that she has a disability within the
meaning of the ADA; (2) that she was qualified for her job; and, (3) that an adverse
employment decision was made solely because of her disability. Zenor v. El Paso
Healthcare System, Limited, 176 F.3d 847, 852-53 (5th Cir. 1999); Hamilton v.
Southwestern Bell Telephone Company, 136 F.3d 1047, 1050 (5th Cir. 1998); Turco v.
Hoechst Celanese Corporation, 101 F.3d 1090, 1092 (5th Cir. 1996). Such proof may
be established either by direct evidence or by indirect evidence using the burdenshifting regimen established in McDonnell Douglas Corporation v. Green, 411 U.S. 792
(1973). The ADA defines the term “disability” as: “(A) a physical or mental
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The current version of the ADA incorporates the ADA Amendments Act
of 2008 (“ADAAA”), PUB.L. NO. 110-325, 122 STAT. 3553 (2008). The ADAAA,
however, only applies to claims arising on or after January 1, 2009, and thus does not
apply to Quick’s claims. See Amsel v. Texas Water Development Board, 2012 WL
913676, *3 n.2 (5th Cir. March 19, 2012).
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impairment that substantially limits one or more of the major life activities of such
individual; (B) a record of such an impairment; or (C) being regarded as having such
an impairment.” 42 U.S.C. § 12102(2). Quick must also establish that the
impairment, if it existed as perceived, would be substantially limiting. McInnis v.
Alamo Community College District, 207 F.3d 276, 281 (5th Cir. 2000); see also Deas v.
River West, L.P., 152 F.3d 471, 475-76 (5th Cir. 1998), cert. denied, 527 U.S. 1035
(1999) and cert. denied, 527 U.S. 1044 (1999).
To establish a violation of the ADA, Quick must show “that (1) she has a
disability; (2) she was qualified for the job; and (3) an adverse employment decision
was made solely because of her disability.” Rizzo v. Children’s World Learning Centers,
Inc., 84 F.3d 758, 763 (5th Cir. 1996); see also Talk v. Delta Airlines, Inc., 165 F.3d
1021, 1024 (5th Cir. 1999). Due to the absence of direct evidence of discrimination
in this case,5 Quick must use the three-step, “indirect” or “pretext” method of proof
detailed in McDonnell Douglas; see also Daigle v. Liberty Life Insurance Company, 70 F.3d
394, 396 (5th Cir. 1995); Rizzo, 84 F.3d at 762. In the first step, Quick must
establish a prima facie case of discrimination. McDonnell Douglas, 411 U.S. at 802. If
she produces proof of the elements of a prima facie case, a presumption of
discrimination arises. See Bodenheimer v. PPG Industries, Inc., 5 F.3d 955, 957 (5th
5
Direct evidence is evidence which, if believed, proves the fact of
discriminatory animus without inference or presumption. See Mooney v. Aramco
Services Company, 54 F.3d 1207, 1217 (5th Cir. 1995); Brown v. East Mississippi Electric
Power Association, 989 F.2d 858, 861 (5th Cir. 1993).
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Cir. 1993). At the second step, VistaCare can rebut this presumption of
discrimination by offering a legitimate, nondiscriminatory reason for its actions. See
Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). If
VistaCare satisfies this burden of production, the prima facie case dissolves, and the
case proceeds to the third step of the analysis. See St. Mary’s Honor Center v. Hicks,
509 U.S. 502, 507 (1993). At this third stage, the burden is on Quick to prove that
the reasons offered by VistaCare are pretexts for prohibited discrimination. See id. at
507-08.
VistaCare argues that insomnia is not a recognizable impairment. Motion at
12. For the purpose of deciding its motion, however, the court will assume arguendo
that, at all relevant times, Quick suffered from a “disability” within the ADA’s
definition of that term. To meet her initial burden under McDonnell Douglas, however,
Quick must still provide competent evidence that she was qualified for her position,
and that VistaCare discharged her because of her disability.
To determine whether a plaintiff is otherwise qualified for a given job, the
court must conduct a two-part inquiry. First, it must determine whether the plaintiff
could perform the essential functions of the job, i.e., functions that bear more than a
marginal relationship to the job at issue. Second, if the court finds that the plaintiff
is not able to perform the essential functions of the job, it must determine whether
any reasonable accommodation by the employer would enable her to perform those
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functions. See Chandler v. City of Dallas, 2 F.3d 1385, 1393-94 (5th Cir. 1993)
(citing Chiari v. City of League City, 920 F.2d 311, 315 (5th Cir. 1991)), cert. denied,
511 U.S. 1011 (1994); see also Jenkins v. Cleco Power LLC, No. 05-30744, 487 F.3d
309, 315 (5th Cir. 2007). VistaCare maintains that Quick could not perform an
essential function of her job -- attending Monday morning meetings. Reply at 4.
From the undisputed facts in the record, the court concludes that Quick could not
perform the essential functions of her job, and that VistaCare reasonably
accommodated Quick’s condition. See Cortez v. Raytheon Co., 663 F. Supp.2d 514,
522 (N.D. Tex. 2009).
Though Quick and VistaCare differ on whether Quick’s employment was
terminated or whether she resigned, Quick has adduced no facts suggesting that a
discriminatory reason likely motivated a decision to terminate her employment or
that VistaCare’s explanation was not credible, i.e., was probably pretextual. See Hicks,
509 U.S. at 515-18; Burdine, 450 U.S. at 256. Quick’s subjective belief that she was
a victim of discrimination is insufficient, without further evidentiary support, to
overcome VistaCare’s articulation of a legitimate, non-discriminatory motive. Elliott
v. Group Medical & Surgical Service, 714 F.2d 556, 567 (5th Cir. 1983), cert. denied,
467 U.S. 1215 (1984).
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D. Pendent State Law Claim
Federal court jurisdiction exists over an entire action, including state law
claims, when the federal and state law claims “‘derive from a common nucleus of
operative fact’ and are ‘such that [a plaintiff] would ordinarily be expected to try
them all in one judicial proceeding.’” Carnegie-Mellon University v. Cohill, 484 U.S.
343, 349 (1988) (quoting United Mine Workers of America v. Gibbs, 383 U.S. 715, 725
(1966)). Yet supplemental jurisdiction is a “doctrine of discretion, not of plaintiff’s
right.” Gibbs, 383 U.S. at 726. Consequently, “a federal court should consider and
weigh in each case, and at every stage of the litigation, the values of judicial economy,
convenience, fairness, and comity in order to decide whether to exercise jurisdiction
over a case brought in that court involving pendent state-law claims.” Carnegie-Mellon,
484 U.S. at 350.
When the federal claims are dismissed before trial and only a state law claim
remains, the balance of factors to be considered under the supplemental jurisdiction
doctrine weigh heavily in favor of declining jurisdiction; therefore, the federal court
should usually decline the exercise of jurisdiction over the remaining claims and
remand the case to state court. Id. at n.7. According to the Fifth Circuit, “[o]ur
general rule is to dismiss state claims when the federal claims to which they are
pendent are dismissed.” Parker & Parsley Petroleum Co. v. Dresser Industries, 972 F.2d
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580, 585 (5th Cir. 1992) (citing Wong v. Stripling, 881 F.2d 200, 204 (5th Cir.
1989)).
In the case before the court, the federal claims against VistaCare have been
dismissed and only the state law claim of intentional infliction of emotional distress
remains. Because the federal claims were dismissed before trial, the factors of judicial
economy, convenience, fairness, and comity suggest that this court ought to decline
jurisdiction over the remaining state law claim against VistaCare. See 28 U.S.C.
§ 1367(c)(3).
III. CONCLUSION
For the reasons stated, VistaCare’s motion for summary judgment is
GRANTED. The remaining claim of intentional infliction of emotional distress
against VistaCare, which is governed exclusively by state law, is REMANDED to the
298th District Court for Dallas County, Texas, from which it was removed. The
clerk shall mail a certified copy of this memorandum opinion and order to the
County Clerk of Dallas County, Texas. 28 U.S.C. ¶ 1447(c).
SO ORDERED
March 29, 2012.
___________________________________
A. JOE FISH
Senior United States District Judge
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