Perry v. Charleston Area Medical Center, Inc.
Filing
27
MEMORANDUM OPINION & ORDER granting Charleston Area Medical Center, Inc.'s 21 MOTION for Summary Judgment. Signed by Judge Joseph R. Goodwin on 5/23/2014. (cc: attys; any unrepresented party) (taq)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
CHARLESTON DIVISION
RACHEL E. PERRY,
Plaintiff,
v.
CIVIL ACTION NO. 2:13-cv-13598
CHARLESTON AREA MEDICAL CENTER, INC.,
Defendant.
MEMORANDUM OPINION & ORDER
Now before the court is Charleston Area Medical Center, Inc.’s Motion for Summary
Judgment [Docket 21]. The motion is ripe for review. For the reasons set forth below, the motion
is GRANTED.
I.
Background and Undisputed Facts
This is an employment discrimination case filed by the plaintiff, Rachel E. Perry, against
Charleston Area Medical Center, Inc. (“CAMC”). CAMC employed Ms. Perry beginning in 2009,
and employed her as a Registered Nurse beginning in April 2009. (See Pl.’s Resp. in Opp’n to
Def.’s Mot. for Summ. J. (“Pl.’s Resp.”) [Docket 23], at 2). In October 2012, CAMC granted Ms.
Perry’s request for intermittent leave under the Family and Medical Leave Act (“FMLA”) due to
herniated disks in her back. (See id.; Cert. of Health Care Provider for Employee’s Serious Health
Condition (“FMLA Cert.”) [Docket 23-2], at 1). According to Ms. Perry’s physician, she would
have “episodic flare-ups” because of her back injury that would prevent her from performing her
job functions. (FMLA Cert. [Docket 23-2], at 2, 3). Ms. Perry’s physician stated these flare-ups
would occur approximately one time per month. (Id. at 3).
CAMC provided Ms. Perry with a form informing her of her FMLA rights after her request
for leave was granted. (See FMLA Rights & Responsibilities [Docket 21-5]). This form stated:
For leave not foreseeable, you must comply with usual and customary call-in
procedures for reporting an absence, absent unusual circumstances. Although an
employee may have an approved/active intermittent FML letter, the employee must
continue to give this same advance notice to the department designee when ‘calling
off’ for all or any part of a scheduled shift.
(Id.). CAMC required Registered Nurses to call in two hours before the start of their scheduled
shift. (See Policy Manual [Docket 21-6]). The purpose of that rule is “[t]o provide sufficient time
to ensure adequate staffing for all shifts.” (Id.). Ms. Perry was aware of the policy and its purpose.
(See Perry Dep. [Docket 21-1], at 15:24-17:4). Under CAMC’s attendance policy, employees
receive occurrences for absences and tardiness. Employees receiving occurrences under the
attendance and tardiness policy were to be given a verbal warning, a written warning, a second
written warning, and then discharged. (See Dec. 4, 2012 Employee Attendance/Tardy Discipline
Form [Docket 21-7]). If a Registered Nurse calls in within two hours of her shift, it is treated as
two occurrences. (See Edwards Dep. [Docket 23-4], at 51:4-51:9).
Ms. Perry received her second written warning on September 11, 2012, prior to taking
FMLA leave. (See Sept. 11, 2012 Employee Attendance/Tardy Discipline Form [Docket 21-4]).
On December 4, 2012, Ms. Perry was scheduled to begin her shift at 7:00 a.m. (See Burkholder
Dep. [Docket 23-3], at 38:2-4). Ms. Perry states that when she woke up at 6:00 a.m., she could
barely walk and made the decision to call CAMC and tell them she would be unable to work that
day. (See id. at 38:7-13). She called CAMC at 6:05 a.m. (See id. at 39:4-6). Ms. Perry knew that
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she was violating the call-in policy and that the call-in policy was applicable to her while she was
on intermittent leave, but stated that it was “out of [her] control.” (Id. at 39:10-15). This was
counted as two occurrences against Ms. Perry. (See Dec. 4, 2012 Employee Attendance/Tardy
Discipline Form [Docket 21-7]). On the following day, Ms. Perry was discharged. (See id.). The
form provided by CAMC indicates that Ms. Perry was discharged for her failure to follow
department call-in policy. (See id.). Ms. Perry argues that she was discharged because of her
disability, in violation of the West Virginia Human Rights Act (“WVHRA”) and FMLA.
II.
Legal Standard
To obtain summary judgment, the moving party must show that there is no genuine issue
as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed. R.
Civ. P. 56(a). In considering a motion for summary judgment, the court will not “weigh the
evidence and determine the truth of the matter.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
249 (1986). Instead, the court will draw any permissible inference from the underlying facts in the
light most favorable to the nonmoving party. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio
Corp., 475 U.S. 574, 587-88 (1986).
Although the court will view all underlying facts and inferences in the light most favorable
to the nonmoving party, the nonmoving party nonetheless must offer some “concrete evidence
from which a reasonable juror could return a verdict in his [or her] favor[.]” Anderson, 477 U.S.
at 256. Summary judgment is appropriate when the nonmoving party has the burden of proof on
an essential element of his or her case and does not make, after adequate time for discovery, a
showing sufficient to establish that element. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).
The nonmoving party must satisfy this burden of proof by offering more than a mere “scintilla of
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evidence” in support of his or her position. Anderson, 477 U.S. at 252. Likewise, conclusory
allegations or unsupported speculation, without more, are insufficient to preclude the granting of
a summary judgment motion. See Felty v. Graves Humphreys Co., 818 F.2d 1126, 1128 (4th Cir.
1987); Ross v. Comm’ns Satellite Corp., 759 F.2d 355, 365 (4th Cir. 1985), abrogated on other
grounds, Price Waterhouse v. Hopkins, 490 U.S. 228 (1989).
III.
Discussion
In the Complaint, Ms. Perry asserted the following claims against CAMC: (1) violation of
the WVHRA, W. Va. Code § 5-11-9; (2) violation of the interference provision of the FMLA, 29
U.S.C. § 2615(a)(1); (3) violation of the retaliation provision of the FMLA, 29 U.S.C. §
2615(a)(2); (4) intentional infliction of emotional distress; and (5) negligent infliction of emotional
distress. (See Compl. [Docket 1-1]). Ms. Perry has agreed to voluntarily dismiss Counts IV and V.
(See Pl.’s Resp. [Docket 23], at 13). Therefore, I will only address CAMC’s motion for summary
judgment with regard to the remaining claims.
A. Discrimination under the WVHRA
Ms. Perry argues that she was unlawfully discriminated against because of her disability,
in violation of the WVHRA. The WVHRA provides that “[i]t shall be an unlawful discriminatory
practice . . . [f]or any employer to discriminate against an individual with respect to compensation,
hire, tenure, terms, conditions or privileges of employment if the individual is able and competent
to perform the services required even if such individual is . . . disabled[.]” W. Va. Code § 5-119(1).
In order to make a prima facie case of employment discrimination under the West
Virginia Human Rights Act, W. Va. Code § 5-11-1 et seq. (1979), the plaintiff must
offer proof of the following:
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(1) That the plaintiff is a member of a protected class.
(2) That the employer made an adverse decision concerning the plaintiff.
(3) But for the plaintiff’s protected status, the adverse decision would not
have been made.
Syl. Pt. 3, Conaway v. E. Associated Coal Corp., 358 S.E.2d 423, 425 (W. Va. 1986). After a
prima facie case is established, “[t]he complainant’s prima facie case of disparate-treatment
employment discrimination can be rebutted by the employer’s presentation of evidence showing a
legitimate and nondiscriminatory reason for the employment-related decision in question which is
sufficient to overcome the inference of discriminatory intent.” Syl. Pt. 2, W. Va. Inst. of Tech. v.
W. Va. Human Rights Comm’n, 383 S.E.2d 490, 491 (W. Va. 1989).
It is undisputed that Ms. Perry can establish a prima facie case against CAMC.
Additionally, it is clear that CAMC has presented evidence of a legitimate and nondiscriminatory
reason for Mr. Perry’s termination—her failure to adhere to CAMC’s call-in policy for Registered
Nurses. Once a plaintiff’s prima facie case has been rebutted, “the inquiry proceeds to a new level
of specificity.” Skaggs v. Elk Run Coal Co., 479 S.E.2d 561, 582 (W. Va. 1996) (quoting Tex.
Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 255 (1981) (internal quotation marks omitted).
At that point, “the onus is once again on the employee to [provide evidence] that the proffered
legitimate reason is a mere pretext rather than the true reason for the challenged employment
action.” Id. “[A]t all times the burden of proof or the risk of nonpersuasion on the issue of whether
the employer intended to discriminate remains on the plaintiff.” Id.
Ms. Perry argues that she has presented a genuine issue of material fact regarding pretext
because CAMC never considered whether her absence was an “unusual circumstance” provided
for in the form CAMC gave her to outline her rights and responsibilities while on intermittent
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leave. This form stated that “[f]or leave not foreseeable, you must comply with usual and
customary call-in procedures for reporting an absence, absent unusual circumstances.” (FMLA
Rights & Responsibilities [Docket 21-5]) (emphasis added). Ms. Perry also provides testimony
indicating that CAMC could have let her retroactively use an emergency day for one of her
absences, and in that case she would not have been terminated. (See Burkholder Dep. [Docket 233], at 45:2-47:3). Ms. Perry additionally argues that CAMC’s call-in policy is not always strictly
adhered to. She bases this argument on the fact that in 2010, before she was put on intermittent
leave, she did not receive a warning for violating the policy. (See Edwards Dep. [Docket 23-4],
59:11-23). However, it also appears to be undisputed that Ms. Perry had received a verbal warning,
written warning, and second written warning prior to taking FMLA leave. (See Sept. 11, 2012
Employee Attendance/Tardy Discipline Form [Docket 21-4]).
None of these facts demonstrate pretext. “To get to the jury, the employee must offer
sufficient evidence that the employer’s explanation was pretextual to create an issue of fact.”
Skaggs, 479 S.E.2d at 583. Here, there is simply no evidence, either direct or indirect, that indicates
CAMC fired Ms. Perry for any reason other than her failure to follow its call-in procedure.
Notably, “a disparate treatment claim cannot succeed unless the employee’s protected trait actually
played a role in that process and had a determinative influence on the outcome.” Id. at 585 (quoting
Hazen Paper Co. v. Biggins, 507 U.S. 604, 610 (1993)). Nothing in the record indicates that Ms.
Perry’s disability had any effect on her employment status at CAMC. At the summary judgment
stage, “[w]hile the underlying facts and all inferences are viewed in the light most favorable to the
nonmoving party, the nonmoving party must nonetheless offer some concrete evidence from which
a reasonable finder of fact could return a verdict in its favor or other significant probative evidence
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tending to support the complaint.” Williams v. Precision Coil, Inc., 459 S.E.2d 329, 336-37 (W.
Va. 1995) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986)) (internal quotation
marks omitted).
Ms. Perry also argues that CAMC violated her rights under the WVHRA by refusing to
provide her with a reasonable accommodation. The Supreme Court of Appeals of West Virginia
has recognized a claim for breach of duty of reasonable accommodation under the FMLA.
To state a claim for breach of the duty of reasonable accommodation under the
West Virginia Human Rights Act, W. Va. Code, 5-11-9 (1992), a plaintiff must
allege the following elements: (1) The plaintiff is a qualified person with a
disability; (2) the employer was aware of the plaintiff’s disability; (3) the plaintiff
required an accommodation in order to perform the essential functions of a job; (4)
a reasonable accommodation existed that met the plaintiff’s needs; (5) the employer
knew or should have known of the plaintiff’s need and of the accommodation; and
(6) the employer failed to provide the accommodation.
Syl. Pt. 1, Haynes v. Rhone-Poulenc, Inc., 521 S.E.2d 331, 332 (W. Va. 1999). However, Ms.
Perry has not demonstrated that she required an accommodation in order to perform the essential
functions of her job. Ms. Perry does not argue that she could not work or follow CAMC’s call-in
procedures because her back pain was too sudden. During her deposition, Ms. Perry indicated that
the only reason she did not call in two hours early was because she did not wake up with sufficient
time to do so.
Q.
Okay. So December—you were scheduled to start your shift on December
4, 2012, at 7 a.m. Correct?
A.
Yes.
Q.
What time did you wake up?
A.
Six o’clock. When I woke up, I could barely walk. I could barely walk, and
I went to the restroom. When I came back from the restroom, I made the
decision to call work and let them know that I would be unable to make it
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because I was not functional, and rather than injure myself attempting to
work, I called in late.
...
Q.
So you knew when you called in after 6—[d]o you know exactly what time
you called in?
A.
I believe it was 6:05.
Q.
Okay. That you were violating the call-in policy when you called in?
A.
Yes, I did.
Q.
And you understood when you called in that you still—even though you
had FMLA, you still needed to abide by the call-in policy. Correct?
A.
Yes, but unfortunately it was out of my control. I would have had to
purposely set my alarm for earlier than I normally wake up.
Q.
Why wouldn’t you do that? Knowing that you were dealing with back
issues, knowing you could violate the call-in policy, knowing that you had
received your second written warning, why wouldn’t you do that?
A.
I thought it more important to be well-rested for a shift rather than to wake
up early every single day on the off chance that I might not be able to make
it to work. I mean, for 10 years to wake up an hour early just in case, that’s
a little excessive.
(Perry Dep. [Docket 21-1], at 38:2-39:24). If Ms. Perry’s back pain were sudden and unpredictable,
perhaps it would be an “unusual circumstance” and require CAMC to depart from its normal
attendance policies. However, Ms. Perry does not argue that her pain is sudden, and does not
dispute the fact that she would have been able to follow CAMC’s policy if she had woken up one
hour earlier. (See Perry Dep. [Docket 21-1], at 38:2-29:24). Ms. Perry’s case can be likened to the
case of a person who comes down with the flu overnight. A person may not be able to predict the
night before if she is going to wake up with the flu; however, she can prevent disobeying the callin policy by waking up more than two hours before her shift is scheduled to begin.
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CAMC’s employment policy is burdensome and it is easy to understand why Ms. Perry did
not want to wake up before 5:00 a.m. However, CAMC has good reason for the policy. That reason
is stated on the policy itself, which notes that its purpose is “[t]o provide sufficient time to ensure
adequate staffing for all shifts.” (Policy Manual [Docket 21-6]). It is important for a hospital to
ensure that it has a sufficient number of Registered Nurses working on any given shift. While the
policy may be harsh, it is nonetheless reasonable considering CAMC’s needs. And in this case,
Ms. Perry has not presented any evidence that she should have been exempted from the standard
procedure.
Based upon the foregoing, I FIND that Ms. Perry has not presented evidence indicating
that CAMC’s proffered reason for her termination was a pretext for discrimination.
B. FMLA Claims
Ms. Perry brings claims for interference and retaliation under the FMLA. Interference
claims arise under 29 U.S.C. § 2615(a)(1), which makes it illegal for an employer to deny an
employee the protective rights set out by the FMLA, such as twelve weeks of leave time and job
protection while on leave. See Yashenko v. Harrah’s NC Casino Co., LLC, 446 F.3d 541, 546 (4th
Cir. 2006). An interference claim, then, requires the plaintiff to show that she was entitled to rights
or protections under the FMLA. Retaliation claims, also known as discrimination claims, arise
under 29 U.S.C. § 2615(a)(2), which makes it illegal for an employer to fire an employee “for
opposing any practice made unlawful by” the FMLA. See Yashenko, 446 F.3d at 546. In other
words, a retaliation claim arises when an employee is discharged for demanding the rights to which
she is entitled under the FMLA.
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1. Interference
Ms. Perry argues that CAMC unlawfully interfered with her FMLA rights. “[T]o proceed
on an interference claim asserting a violation of substantive rights under the FMLA, an employee
bears the burden of proof in establishing that he is entitled to the benefit at issue under the
statute[.]” Yashenko v. Harrah’s NC Casino Co., 446 F.3d 541, 549 (4th Cir. 2006). Importantly,
“FMLA leave does not provide an employee any greater rights than he or she would have had
without taking leave.” Mercer v. Arc of Prince Georges Cnty., Inc., 532 F. App’x 392, 396 (4th
Cir. 2013). CAMC argues that it properly terminated Ms. Perry’s employment for her failure to
adhere to its ordinary call-in procedures.
The regulations accompanying the FMLA state that:
An employer may require an employee to comply with the employer’s usual and
customary notice and procedural requirements for requesting leave, absent
unusual circumstances. For example, an employer may require that written notice
set forth the reasons for the requested leave, the anticipated duration of the leave,
and the anticipated start of the leave. An employee also may be required by an
employer’s policy to contact a specific individual. Unusual circumstances would
include situations such as when an employee is unable to comply with the
employer’s policy that requests for leave should be made by contacting a specific
number because on the day the employee needs to provide notice of his or her need
for FMLA leave there is no one to answer the call-in number and the voice mail
box is full. Where an employee does not comply with the employer’s usual notice
and procedural requirements, and no unusual circumstances justify the failure to
comply, FMLA–protected leave may be delayed or denied.
29 C.F.R. § 825.302(d) (emphasis added). Other courts have considered this regulation and found
that “an employer may enforce its usual and customary notice and procedural requirements against
an employee claiming FMLA-protected leave, unless unusual circumstances justify the
employee’s failure to comply with the employer’s requirements.” Srouder v. Dana Light Axle Mfg.,
725 F.3d 608, 615 (6th Cir. 2013). Ms. Perry argues that whether her circumstances constitute an
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“unusual circumstance” is a question for the jury. However, Ms. Perry has presented no evidence
that her situation should be considered an unusual circumstance. Indeed, Ms. Perry’s deposition
indicates that she was aware of and able to complete the steps she would have to take to comply
with CAMC’s call-in procedures yet failed to do so. (See Perry Dep. [Docket 21-1], at 38:2-39:24).
Although what constitutes an “unusual circumstance” would normally be a question for the
jury, the plaintiff is still required to come forward with some evidence showing that an unusual
circumstance existed. See, e.g., Srouder, 725 F3d at 615 (finding that an employer was justified
for terminating an employee and upholding a grant of summary judgment where the employee
“produced no evidence demonstrating the type of ‘unusual circumstance’ that would have justified
his failure to follow the call-in requirements”); Goff v. Singing River Health Sys., No. 1:13CV96LG-JMR, 2014 WL 991724, at *5 (S.D. Miss. Mar. 13, 2014) (“Without any evidence to present
to a jury regarding whether unusual circumstances existed that would excuse her failure to comply
with [her employer’s] call-in policy, [the plaintiff] cannot show a question of material fact on this
issue.”). In this case, Ms. Perry has not produced any evidence to support her claim, and has
actually admitted that she could have prevented violating the call-in policy simply by waking up
earlier. (See Perry Dep. [Docket 21-1], at 38:2-39:24).
After reviewing all of the evidence, I FIND that Ms. Perry has not demonstrated a genuine
issue of material fact with regard to her claim of interference with her FMLA rights.
2. Retaliation
Ms. Perry also argues that CAMC unlawfully retaliated against her for asserting her FMLA
rights. “FMLA claims arising under the retaliation theory are analogous to those derived under
Title VII and so are analyzed under the burden-shifting framework of McDonnell Douglas Corp.
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v. Green, 411 U.S. 792, 800-06 (1973).” Yashenko v. Harrah’s NC Casino Co., LLC, 446 F.3d
541, 550-51 (4th Cir. 2006). This is similar to the framework for analyzing a claim of
discrimination under the WVHRA, discussed supra. Once again, it is undisputed that Ms. Perry
has established a prima facie case and it is clear that CAMC has produced a non-discriminatory
motive for its employment decision. “If an FMLA plaintiff puts forth sufficient evidence to
establish a prima facie case of retaliation and the employer offers a non-discriminatory explanation
for the plaintiff’s termination, the plaintiff bears the burden of establishing that the employer’s
proffered explanation is pretext for FMLA retaliation.” Nichols v. Ashland Hosp. Corp., 251 F.3d
496, 502 (4th Cir. 2001). As with Ms. Perry’s WVHRA claim, I FIND Ms. Perry has not presented
evidence that CAMC’s proffered reason for her termination was a pretext for discrimination.
IV.
Conclusion
For the reasons discussed above, Charleston Area Medical Center, Inc.’s Motion for
Summary Judgment [Docket 21] is GRANTED. The court DIRECTS the Clerk to send a copy of
this Order to counsel of record and any unrepresented party.
ENTER:
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May 23, 2014
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