Zisumbo v. Ogden Regional Medical Center
Filing
212
MEMORANDUM DECISION AND ORDER denying 198 Defendant's Renewed Motion for Judgment as a Matter of Law. Signed by Judge Ted Stewart on 1/27/14. (ss)
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH
NORTHERN DIVISION
RAYMOND L. ZISUMBO,
MEMORANDUM DECISION AND
ORDER ON DEFENDANT’S RENEWED
MOTION FOR JUDGMENT AS A
MATTER OF LAW
Plaintiff,
v.
OGDEN REGIONAL MEDICAL
CENTER,
Case No. 1:10-CV-73 TS
Judge Ted Stewart
Defendant.
This matter is before the Court on Defendant Ogden Regional Medical Center’s (“Ogden
Regional”) Renewed Motion for Judgment as a Matter of Law. 1 For the reasons discussed
below, the Court will deny Defendant’s renewed Motion.
I. BACKGROUND
This matter came before the Court for trial on July 29, 2013, through August 2, 2013.
During trial, Ogden Regional moved for judgment as a matter of law. The Court denied Ogden
Regional’s Motion. 2 The matter was submitted to the jury. After its deliberations, the jury
found in favor of Plaintiff Raymond L. Zisumbo (“Zisumbo”) on his unlawful retaliation claim
and against Zisumbo on his race discrimination claim. In the instant Motion, Ogden Regional
renews its motion, arguing that “the jury’s verdict was not supported by the evidence.” 3
1
Docket No. 198.
2
Docket No. 191.
3
Docket No. 198, at 2.
1
Specifically, Ogden Regional argues that there was insufficient “evidence upon which a
jury could find for Zisumbo on his retaliation claim when it is undisputed that the person who
made the decision to terminate his employment . . . was unaware that Plaintiff had engaged in
any protected conduct.” 4 Zisumbo spoke to Anthony Rodebush (“Rodebush”), Zisumbo’s
supervisor, about filing a complaint with the ethics hotline, and to Judd Taylor (“Taylor”), who
investigated the complaint. But, according to Ogden Regional, the ethics hotline complaint did
not allege discrimination based on race.
Ogden Regional admits that Chris Bissenden (“Bissenden”), the purported decisionmaker, also knew about the ethics hotline complaint but maintains that the call cannot constitute
a protected activity because Zisumbo’s complaint did not allege discrimination based on race.
Ogden Regional further argues that since Bissenden did not know about any protected activity on
Zisumbo’s part, he cannot meet the causal connection element of the retaliation claim.
II. DISCUSSION
The Federal Rules of Civil Procedure instruct a court to render judgment as a matter of
law when “a party has been fully heard on an issue and there is no legally sufficient evidentiary
basis for a reasonable jury to find for that party on that issue.” 5 The Tenth Circuit has made it
clear that judgment as a matter of law is to be “cautiously and sparingly granted” 6 and is only
4
Id. at 3.
5
Fed. R. Civ. P. 50(a)(1).
6
Weese v. Schukman, 98 F.3d 542, 547 (10th Cir. 1996).
2
appropriate when “the evidence so overwhelmingly favors the moving party as to permit no other
rational conclusion.” 7
In entertaining a motion for judgment as a matter of law, the court must draw all
reasonable inferences in favor of the nonmoving party, and it may not make credibility
determinations or weigh the evidence. 8 “Credibility determinations, the weighing of the
evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of
a judge.” 9
Ogden Regional argues that it is entitled to judgment as a matter of law because Zisumbo
cannot establish a causal connection between his protected activities and the materially adverse
action. Specifically, Ogden Regional argues that Zisumbo did not present evidence that
Bissenden, the decision-maker, knew about any complaint of discrimination when she terminated
Zisumbo’s employment.
Ogden Regional argues that Zisumbo’s ethics hotline call cannot constitute a protected
action because the report from the call does not mention racial discrimination. The Ethics Line
Case Manager noted that the caller asserts “unfair behavior” towards him by coworkers. 10 The
report of the call does not mention discrimination based on race. It does mention allegations that
Rodebush “behaved unprofessionally and inappropriately” by confronting Zisumbo about his
7
Shaw v. AAA Eng’g & Drafting, 213 F.3d 519, 529 (10th Cir. 2000).
8
Lytle v. Household Mfg., Inc., 494 U.S. 545, 554 (1990).
9
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).
10
Docket No. 211 Ex. B, at 2.
3
reputation. 11 The report mentions Zisumbo feeling “verbally attacked” and he reported he might
be “unfairly terminate[d].” 12 While the ethics hotline complaint makes no mention of
discrimination or other conduct that is protected by Title VII, Zisumbo was not in control of how
the hotline worker described Zisumbo’s complaint. Additionally, Zisumbo testified that he
reported to the ethics hotline that he felt he was the victim of race discrimination.
Q.
A.
Did you make sure to tell the ethics guy that you believed it was race
discrimination?
He asked me, do you feel this is racial discrimination. I said, yes,
absolutely. 13
The jury simply may have believed Zisumbo that he filed the ethics complaint to allege
racial discrimination. Zisumbo also presented substantial evidence that Bissenden was aware
Zisumbo had complained about discrimination to the ethics hotline. Bissenden’s testimony at
trial confirms that she knew about the ethics line complaint.
Q.
A.
Q.
A.
Q.
A.
At some point you knew that Mr. Zisumbo had filed an ethics line complaint,
correct?
I did not until it was—until in October.
You mean before he was terminated?
Correct.
So you did learn that he had filed an ethics line complaint, correct?
I knew in the beginning of October, yes. 14
Taylor and Rodebush met together with Zisumbo about the ethics complaint, even though
some of Zisumbo’s complaints were specifically about Rodebush’s conduct. The day after
Taylor and Rodebush met with Zisumbo about his complaint to the ethics line, Rodebush gave
11
Id. at 4.
12
Id.
13
Docket No. 178, at 60.
14
Docket No. 181, at 53–54.
4
Zisumbo a written warning for incidents that occurred years previous, some of which occurred
prior to Rodebush becoming Zisumbo’s supervisor. Bissenden was also aware that Rodebush
had disciplined Zisumbo for these incidents and that the discipline occurred after Rodebush and
Taylor met with Zisumbo about his ethics complaint. Bissenden’s trial testimony provides:
Q.
A.
Q.
A.
You were present at a meeting on October 2nd in which Anthony Rodebush gave
Mr. Zisumbo written discipline, correct?
Yes, I was.
And you were aware that Mr. Zisumbo had just met with Mr. Rodebush and Judd
Taylor as part of the ethics investigation the day before, correct?
I found that out on the day of the meeting, yes. 15
Finally, at one point during trial Bissenden testified that when making a termination
decision, she works together with the employee’s supervisor while at another point she said she
alone made the decision to terminate Zisumbo. When asked at trial if the supervisor makes
termination decisions, which Bissenden then carries out, she responded, “The supervisor and I
make the decision together.” 16 The jury may simply not have believed Bissenden when she
testified that she made Zisumbo’s termination decision alone.
Plaintiff has provided sufficient evidence from which a reasonable jury could conclude
that Defendant’s stated reasons for terminating Plaintiff were pretextual. Thus, the jury could
infer that the real reason Zisumbo was fired was because he had complained about
discrimination. Viewing the evidence in the light most favorable to Plaintiff, the Court finds that
a reasonable jury could find that Plaintiff would not have been terminated but for his complaints
of discrimination to the ethics hotline.
15
Id. at 56–57.
16
Docket No. 180, at 15.
5
The Court notes that Ogden Regional alternately argues it is entitled to judgment as a
matter of law based on a “cat’s paw” theory of liability. However, because the Court finds there
is sufficient evidence that Bissenden was aware that Zisumbo engaged in a protected activity, the
Court does not consider Ogden Regional’s alternative argument.
Finally, Ogden Regional also renewed its Motion for Judgment as a Matter of Law on
Zisumbo’s discrimination claim. The jury did not find for Zisumbo on this claim and, therefore,
the Court will not consider Ogden Regional’s argument.
In all other regards, the Court adopts the reasoning laid out in its Order 17 denying Ogden
Regional’s original Motion for Judgment as a Matter of Law. 18 For the reasons stated above, the
Court will deny Ogden Regional’s Renewed Motion for Judgment as a Matter of Law.
III. CONCLUSION
Based on the foregoing, it is hereby
ORDERED that Defendant’s Renewed Motion for Judgment as a Matter of Law (Docket
No. 198) is DENIED.
DATED this 27th day of January, 2014.
BY THE COURT:
Ted Stewart
United States District Judge
17
Docket No. 191.
18
Docket No. 150.
6
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