Opinion
Civil Action No. 3:01CV-92-H.
January 22, 2003
MEMORANDUM OPINION
Plaintiff, Katie English, filed suit against Defendant, Baptist Healthcare System, Inc., d/b/a/ Baptist Hospital East, her former employer, for violations of the Americans with Disabilities Act ("ADA"), Title VII of the Civil Rights Act of 1964, and the Family Medical Leave Act ("FMLA"). Defendant has moved for summary judgment on each of Plaintiff's claims. The Court will consider each claim in turn.
I.
In the fall of 1999, Plaintiff worked in Defendant's radiology department, hanging x-rays and faxing radiology reports. No other clerk in the radiology department performed these same duties. In October, 1999, Plaintiff's son was seriously injured in an automobile accident. As a result, on November 8, 1999, Plaintiff requested FMLA leave to care for her son and was allowed to take three weeks of leave, retroactive to the first day she missed work.
Plaintiff returned to work on November 16, 1999. That afternoon Plaintiff informed her supervisor, Triston Mullins, that she needed time off again the next day to take her son to a scheduled doctor's appointment. Mullins initially refused and became upset because the request had come with such late notice, and because other employees had to perform Plaintiff's work for her when she was not present. After Mullins denied her request, Plaintiff went to Pam Colburn, the assistant director of radiology, and again requested permission for time off. Colburn also refused to approve Plaintiff's request. Finally, Plaintiff went to the human resources department where Brenda Marlin approved the request.
In February, 2000, the radiology department obtained a new "R-2 Image Checker," a machine which greatly reduced Plaintiff's job duties. Executive Director of Radiology Ellis Blanton and Colburn determined that Plaintiff's remaining duties did not warrant a full-time position. Blanton and Colburn identified a staffing need in the mammography unit of the radiology department assisting Cathy Wright with various clerical, receptionist, and patient assistance duties. As a result, they transferred Plaintiff to the mammography unit.
Plaintiff remained in mammography until April 10, 2000, when Blanton informed her that she was being transferred to a transporter position effective April 24, 2000. Defendant maintains that Plaintiff was transferred because she experienced great difficulties performing many of the tasks required by the mammography unit position. In fact, Wright claims that prior to the transfer Plaintiff told her that she could not do the mammography job. Plaintiff denies making any such statement. Plaintiff was provided with a written notification of transfer letter that states that "due to recent changes that have occurred in the department such as moving the mammogram reading to the department from the ER reading room, and the reduction in call for faxes via telephone we have to change the position of Katie English from clerk to transporter . . ." (Letter from Blanton to English of 4/10/200 at 1.) The letter does not indicate that any performance related difficulties precipitated the transfer.
Even though transporters are typically paid less than Plaintiff's wages before the transfer, Plaintiff maintained her previous, higher rate of pay. Before the transfer officially took effect, Plaintiff told Blanton that she did not think that she could perform the transporter job because of her inability to lift. In response, Blanton told Plaintiff that she could apply for another available job prior to when the transfer was to take effect. Plaintiff indicated that she would be on vacation during that time and requested an additional week before the transfer would take effect. Blanton agreed and gave her an extra week.
On April 27, 2000, Plaintiff provided a note from her physician, Dr. Sutkamp, that she would be unable to work from April 27 to May 18, 2000, due to work-related anxiety. Defendant gave Plaintiff the time off according to Dr. Sutkamp's note. On May 12, 2000, Plaintiff provided another note from Dr. Sutkamp that she could not lift twenty pounds or transport patients due to back and shoulder injuries. Also on May 12, 2000, Plaintiff requested FMLA leave until May 18, 2000. She provided the physician's portion to Dr. Sutkamp, whose office completed and returned the form to Defendant on approximately May 16, 2000. The medical portion of the FMLA request indicated that Plaintiff should not lift twenty pounds or transport patients once she returned from leave. Defendant granted Plaintiff's request for FMLA leave until May 18, 2000.
Plaintiff returned from leave on May 18, 2000, and was expressly given the opportunity to apply for jobs within the hospital which she could perform within her lifting restrictions and for which she was qualified. Plaintiff applied for six positions between May 18, 2000, and August 25, 2000. She did not receive any of these positions. On November 3, 2000, Defendant informed Plaintiff by letter that she was terminated because her leave of absence had expired and she had not obtained another position. At the time of her termination, Plaintiff had not worked since she began her FMLA leave on April 27, 2000.
II.
The ADA prohibits covered employers from discriminating against "a qualified individual with a disability because of the disability of such individual in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment." 42 U.S.C. § 12112(a). "To state a claim under the ADA, a plaintiff must establish that: 1) he is an individual with a disability; 2) he is otherwise qualified to perform the job requirements, with or without reasonable accommodation; and 3) he was discharged solely by reason of his handicap." Cotter v. Ajilon Serv., Inc., 287 F.3d 593, 597-98 (6th Cir. 2002). The issue before the Court on summary judgment is whether Plaintiff is disabled within the meaning of the ADA.
The ADA defines "disability" as: "(A) a physical or mental 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). Plaintiff now contends only that she is disabled under subsection (A).
"Disability" is defined by the ADA as "a physical or mental impairment that substantially limits one or more of the major life activities of such individual. . . ." 42 U.S.C. § 12102(2)(A). The Equal Employment Opportunity Commission ("EEOC") has promulgated regulations stating that major life activities "means functions such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working." 29 C.F.R. § 1630.2(i). For major life activities other than working, the regulations define "substantially limits" as: "(i) Unable to perform a major life activity that the average person in the general population can perform; or (ii) Significantly restricted as to the condition, manner or duration under which an individual can perform a particular major life activity as compared to the condition, manner, or duration under which the average person in the general population can perform that same major life activity." 29 C.F.R. § 1630.2(j)(1)(i)(ii).
Plaintiff says that her back and shoulder injuries substantially limit her ability to engage in the major life activity of performing manual tasks. The Supreme Court recently ruled in Toyota Motor Mfg., Kentucky, Inc. v. Williams, 534 U.S. 184, 122 S.Ct. 681, 151 L.Ed.2d 615 (2002), that, "to be substantially limited in performing manual tasks, an individual must have an impairment that prevents or severely restricts the individual from doing activities that are of central importance to most people's daily lives." Id. A plaintiff must present evidence of the effect of an impairment in terms of his or her own experience to allow an individualized assessment of whether she is substantially impaired. Id. at 691-92. Courts should not disregard evidence that one can do household chores and tend to her personal hygiene, which are the types of manual tasks of central importance to most people's daily lives. Id. at 693.
In our case, Dr. Sutkamp testified only that an impairment like Plaintiff's could possibly prevent her from engaging in activities such a washing dishes, cleaning, vacuuming, yard work, gardening and painting. Plaintiff does not allege that her impairment actually prevents her from engaging in these types of activities. In fact, Plaintiff testified that she can care for herself and her home despite her injuries. She is limited in her ability to lift heavy objects, run (an activity she stated she has no reason to perform), and sit for prolonged periods. However, Plaintiff has not presented any evidence that her injuries actually prevent her from performing essential manual tasks that are central to the lives of most people. Accordingly, the Court finds that Plaintiff does not qualify as disabled for the purposes of the ADA and her claim under that statute must be dismissed.
III.
This Court must analyze Title VII race discrimination claims in accordance with the burden-shifting analysis described in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). First, a plaintiff must first prove a prima facie case of discrimination. See id. at 802. In order to prove a prima facie case of race discrimination, Plaintiff must show that: 1) she is a member of a protected group; 2) she was subjected to an adverse employment action; and 3) similarly-situated non-protected employees received preferential treatment. See id. Once she establishes a prima facie case, the burden shifts to defendant to offer a legitimate, non-discriminatory reason for the adverse employment action at issue. Id. If Defendant meets this burden, then the burden of production shifts back to Plaintiff to demonstrate that the proffered reason is a pretext. Id. When the burden shifts back to Plaintiff, she must come forward with evidence that the company's reason for the employment action is false.
Plaintiff, an African American, is a member of a protected group. With respect to her race discrimination claim, she alleges five instances of adverse action due to racial discrimination: 1) Defendant's decision to transfer Plaintiff from the radiology department to the mammography department; 2) Defendant's decision to change Plaintiff's position from a mammography clerk to a transporter; 3) Defendant's denial of Plaintiff's May 18, 2000, transfer application for the position of mail processor; 4) Defendant's denial of Plaintiff's August 25, 2000, transfer application for the position of office specialist in the sleep center; and 5) Plaintiff's termination on November 3, 2000. The Sixth Circuit has adopted certain factors for determining what constitutes a materially adverse action in discrimination cases:
Defendant argues that the Court should not consider any of the instances of alleged discrimination that occurred after May 18, 2000, the date Plaintiff filed her charge with the EEOC, because Plaintiff did not amend her EEOC charge to include these instances. A plaintiff must timely file a charge of discrimination with the EEOC before filing a complaint in federal court. See 42 U.S.C. § 2000e-5(e). The purpose of the filing requirement is to trigger an investigation, which gives notice of potential liability to an alleged wrongdoer and permits the EEOC to initiate conciliatory procedures in an attempt to avoid litigation in federal court. Generally, a plaintiff may not bring claims under Title VII that were not originally brought among the charges to the EEOC. "Courts have expanded upon the charge filing requirement, however, to provide that a party's discrimination claim in the District Court may include claims `limited to the scope of the EEOC investigation reasonably expected to grow out of the charge of discrimination.'" Davis v. Sodexho, Cumberland College Cafeteria, 157 F.3d 460, 463 (6th Cir. 1998) ( quoting EEOC v. McCall Printing Corp., 633 F.2d 1232, 1235 (6th Cir. 1980)). Where facts related to the charged claim would prompt the EEOC to investigate a different, uncharged claim, the plaintiff is not precluded from bringing suit on that claim. See id. Here, the events that Plaintiff complains about that occurred after May 18, 2000, arise out of the same type of alleged discrimination that initially prompted Plaintiff to file her EEOC charge. Furthermore, each of these events occurred between the date of the initial complaint and the issuance of the right to sue letter. Plaintiff reasonably would have expected the EEOC's investigation of the original complaint to unearth these additional instances of alleged discrimination.
[A] materially adverse change in the terms and conditions of employment must be more disruptive than a mere inconvenience or an alteration of job responsibilities. A materially adverse change might be indicated by a termination of employment, a demotion evidenced by a decrease in wage or salary, a less distinguished title, a material loss of benefits, significantly diminished material responsibilities, or other indices that might be unique to a particular situation.Hollins v. Atlantic Co. Inc., 188 F.3d 652, 662 (6th Cir. 1999).
Without doubt, the denial of Plaintiff's two transfer applications and her ultimate termination constitute adverse actions. Plaintiff's first two transfers, however, require more analysis. Based on factors set forth in Hollins, the Court concludes that Defendant's decision to transfer Plaintiff from the general radiology department to the mammography unit does not constitute an adverse action. The transfer was not considered a demotion. Plaintiff worked the same hours and received the same salary in mammography as she did in radiology. Furthermore, while Plaintiff's duties changed to some degree, the change was not significant. Mammography is a unit of the radiology department. Thus, Plaintiff was working in the same general area of the hospital and her duties remained primarily radiology-based. In all material respects, the transfer appears to be a lateral one, and thus, not an adverse employment action. Policastro v. Northwest Airlines, Inc., 297 F.3d 535, 539 (6th Cir. 2002) (holding that reassignments or lateral transfers "without changes in salary, benefits, title, or work hours usually do not constitute adverse employment actions.")
Plaintiff's second transfer from mammography to patient transport is a more difficult call. The transporter position was materially different in many respects from Plaintiff's mammography position. While the mammography position involved primarily clerical type work (hanging films, faxing, assisting the receptionist, etc.), the transporter position was far more physically demanding (lifting and transporting patients). This fact standing alone, however, does make the transfer adverse. See White v. Burlington Northern Santa Fe Ry. Co., 310 F.3d 443, 451 (6th Cir. 2002) ("A job transfer that involves heavy lifting and more physically demanding tasks is not a demotion.") For example, in Kocsis v. Multi-Care Mgmt., Inc., 97 F.3d 876, 885 (6th Cir. 1996), a disability discrimination case, the Sixth Circuit held that a nurse's reassignment from a nurse supervisor position to a unit nurse position was not a materially adverse change in employment even though her new duties involved more physically demanding tasks because the nurse did not lose any pay, benefits, or prestige. See id. Here too, Plaintiff's salary, benefits, and hours would have remained the same in the transporter position. Even though Defendant planned to pay Plaintiff the same salary in the transporter position, however, the position itself actually commanded a lower salary and was a lower grade than Plaintiff's prior position in mammography. Furthermore, the evidence also suggests that the transporter position entailed less job responsibility than the mammography clerk position. Based on this evidence, a reasonable jury could find that Defendant's decision to transfer Plaintiff to a less prestigious and lower grade position with fewer job responsibilities actually amounted to an adverse action under these circumstances even though her pay and hours remained the same. See Brown v. Cox, 286 F.3d 1040, 1046 (8th Cir. 2002) (holding that jury was reasonable in finding adverse employment action where hospital transferred nurse into new position at same rate of pay where she was told that she should have received a pay cut based upon the work she was doing).
Next, the Court must next determine whether she can satisfy the final element of a prima facie race discrimination case: differential treatment, as to any of the four possible instances of adverse action (the denial of her two transfer requests, her ultimate termination, and her transfer to patient transport). Plaintiff may show differential treatment in one of two ways: first, by evidence that he or she was replaced by a person outside of the protected class, or second, by showing that a comparable non-protected person was treated better. See Mitchell v. Toledo Hosp., 964 F.2d 577, 582-84 (6th Cir. 1992). "[T]o make a comparison of a discrimination plaintiff's treatment to that of non-minority employees, the plaintiff must show that the `comparables' are similarly situated in all respects." Id. at 583 (emphasis in original). Thus, to be deemed "similarly-situated," the individuals with whom the plaintiff seeks to compare her treatment must have dealt with the same supervisor or through a similar decision-making process, have been subject to the same standards and have engaged in the same conduct without such differentiating or mitigating circumstances that would distinguish their conduct or the employer's treatment of them for it. See id.
As to the denial of transfer applications, Plaintiff has not come forward with any evidence that tends to suggest that non-minority employees were selected for these positions, or that the positions remained unfilled after she submitted her applications. Without such evidence a fact finder has no basis for finding discrimination. Moreover, Plaintiff admitted in her deposition that she was not qualified for the position of mail processor because it required accounting skills she did not possess, and that she never made Defendant aware that she possessed the computer skills necessary for the office specialist position. If one is not qualified for a job, it is difficult to claim that discrimination was the reason for the denial of it. Therefore, Plaintiff cannot establish a prima facie race discrimination case based on Defendant's denial of her two transfer applications. See Nguyen v. City of Cleveland, 229 F.3d 559, 563 (6th Cir. 2000).
Plaintiff had ample time during the discovery process to develop her case. She could have requested documents from Defendant related to the persons, if any, ultimately hired for the two positions Plaintiff sought.
Likewise, Plaintiff can not proceed on her race discrimination claim regarding her final termination in November 2000. She has failed to show that she was treated less favorably than other similarity situated employees. Plaintiff allegedly could not physically perform the transporter position. Thus, she requested the opportunity to find another position in the hospital. However, after almost seven months Plaintiff still had not been able to secure a position. As a result, Defendant terminated her employment. The evidence reveals, and Plaintiff even admitted, that Defendant actually gave her more time to find a new position than most other similarity situated employees were given. Thus, in relation to her termination, Plaintiff was actually treated better, not worse, than her peers. She presents no evidence that she was treated worse than white employees similarly situated.
Plaintiff comes closer to satisfying the fourth element regarding Defendant's decision to transfer her from mammography to transport. Here, Plaintiff argues that there is evidence to support a conclusion that after her transfer her position was filled by a white female employee. In support of this contention, Plaintiff offers her own testimony that she visited the hospital one day and was told by the white employee that she was now performing some of Plaintiff's previous duties. As presently offered, such testimony may well be inadmissible as hearsay that should not be considered here. Even if admitted, however, this evidence suggests at most that someone was performing some of duties previously performed by Plaintiff, not that Plaintiff's former position was actually filled by another employee. Again, Plaintiff fails to come forward with any actual evidence that would tend to show either that she was replaced by a non-protected employee or treated less favorably than other similarly situated employees.
Mindful that the Court should view the facts in the light most favorable to the nonmoving party, the Court nevertheless concludes that a reasonable jury, taking all inferences in the light most favorable to Plaintiff, could not find that Defendant discriminated against Plaintiff because of her race.
IV.
To establish a prima facie case of FMLA retaliation, Plaintiff must show that: 1) she availed herself of a protected right under the FMLA; 2) that she was adversely affected by an employment decision; and 3) that there was a causal connection between her exercise of a right afforded by the FMLA and an adverse employment action. Skrjanc v. Great Lakes Power Serv. Co., 272 F.3d 309, 314 (6th Cir. 2001). Once Plaintiff establishes a prima facie case of FMLA retaliation, then the burden shifts to Defendant employer to articulate a legitimate, non-discriminatory reason for the adverse action. Should Defendant offer a non-discriminatory reason for the adverse employment action then the burden shifts back to Plaintiff to prove that the proffered reason for the action was merely a pretext to discrimination.
Defendant concedes that Plaintiff can satisfy the first element of the prima facie case by her November 1999 application for FMLA leave. As for the second element, adverse action, Plaintiff asserts that she suffered ten separate adverse employment actions as a direct and proximate result of her decision to use FMLA leave: 1) on November 16, 1999, Mullins, Plaintiff's supervisor at the time, initially refused her request to take off a portion of the day to transport her son to a doctor's appointment; 2) Colburn told Plaintiff she should be able to understand Mullins's position about Plaintiff being absent so much; 3) the fax machine procured for Plaintiff's use in mammography was moved to a location between two bathroom doors; 4) Wright, Plaintiff's supervisor in mammography, prepared an extensive list of job duties specifically for Plaintiff to perform; 5) Wright gave Plaintiff a written reprimand for having five absences even though those absences were FMLA approved; 6) Wright informed Plaintiff that she would be required to sweep and dust and to let Wright know her whereabouts at all times; 7) the April 10, 2000, transfer of Plaintiff from mammography to patient transport; 8) Defendant's failure to hire Plaintiff for the mail processor position she applied for on May 18, 2000; 9) Defendant's failure to hire Plaintiff for the office specialist position she applied for on August 25, 2000; and 10) Defendant's decision to terminate Plaintiff on November 3, 2000. Of the these alleged instances, only the final four rise to the level of adverse employment actions, for the same reasons already discussed in section II of this opinion. The remaining seven are at best categorized as mere annoyances, disagreements, and inconveniences which are not themselves actionable. See Hollins, 188 F.3d at 662.
Next, the Court must determine whether Plaintiff has presented any evidence that tends to suggest a causal link between Plaintiff's use of FMLA leave and any of the four adverse actions. A temporal proximity standing alone is insufficient to support a causal relationship. See, e.g., Nguyen, 229 F.3d at 565-66. In addition to temporal proximity, however, Plaintiff has some additional evidence on the causation element: Mullins's reaction to Plaintiff's request to take her son to the doctor, Colburn's statement that Plaintiff should understand Mullins's position about Plaintiff taking time off, Wright's alleged statement that she needed to know Plaintiff's whereabouts at all times, and Wright's alleged written reprimand of Plaintiff for having five absences even though those absences were FMLA protected leave. Viewed most favorably toward Plaintiff, this evidence could suggest that during the relevant time period, Plaintiff's various supervisors harbored some resentment about her use of FMLA leave and absence from work, and that this resentment could have been the reason Defendant took adverse action against Plaintiff.
Since Plaintiff has made out a prima facie case of FMLA retaliation, at least for the purposes of summary judgment, the burden shifts to the Defendant to articulate a legitimate, non-discriminatory reason for its adverse actions. As for Plaintiff's failure to hire claims, as previously discussed, Defendant has presented evidence that Plaintiff was not qualified for the mail processor position, and that Plaintiff never informed Defendant of her qualifications for the office specialist position. As for its decision to transfer Plaintiff to the position of transporter, Defendant contends that the transfer was precipitated by Plaintiff's own statements to Wright that she could not perform the duties required in mammography. Finally, Defendant contends that it ultimately terminated Plaintiff because she failed to secure an acceptable position after her leave ended almost seven months earlier. On their face, Defendant's reasons for its actions are legitimate and non-discriminatory. Therefore, the burden shifts back to Plaintiff to prove pretext by showing that: 1) the stated reasons for Defendant's actions have no basis in fact; 2) the stated reasons for Defendant's action were not the actual reasons for its actions; or 3) the stated reasons did not suffice to warrant the adverse treatment. See Weigel v. Baptist Hosp. of East Tennessee, 302 F.3d 367, 378 (6th Cir. 2002).
Plaintiff admitted that she was not qualified for the accounting position, that she never made Defendant aware that she was qualified for the office specialist position in the Sleep Center, and that Defendant gave her longer to find a suitable transfer before she was terminated than most other employees were given. Thus, at least as to these three instances, the evidence is undisputed that Defendant articulated legitimate, non-discriminatory reasons for its actions, and Plaintiff has not presented any evidence to establish pretext. See id. The evidence as to Defendant's decision to transfer Plaintiff from mammography to transport is not quite so clear. Defendant contends that Plaintiff was transferred after she told Wright that she could not perform the mammography job. Plaintiff denies making this statement. Furthermore, the written notification of transfer letter from Blanton does not reference any problems with Plaintiff's ability to perform the mammography job. Rather the stated reason for the transfer in the letter is a lack of work, a fact Wright herself denied. These inconsistencies coupled with the statements made to Plaintiff about her leave, and Wright's alleged attempt to write Plaintiff up for her FMLA approved absences could demonstrate that the stated reasons for Defendant's decision to transfer Plaintiff to transport were not the actual reasons Plaintiff was transferred. Plaintiff has established enough evidence of pretext regarding Defendant's decision to transfer her to the transport job to survive Defendant's motion for summary judgment on her FMLA claim.
Defendant may have an entirely permissible explanation for the inconsistencies. At this stage, however, the Court must view the evidence in the light most favorable to Plaintiff
Whether Plaintiff is likely to prevail before a jury is another question entirely. Certainly the case law is replete with far more egregious instances of discrimination and callousness by employers. In this case, Defendant appears to have bent over backwards to assist Plaintiff, and enable her to remain in its employ. After her original position in radiology was eliminated due to new equipment (a fact which had nothing to do with Plaintiff's decision to exercise her FMLA rights), Defendant made efforts to find Plaintiff a new, similar position even though it was aware she was exercising her rights under the FMLA at the time. Furthermore, even though Defendant did, for whatever reason, ultimately decide to transfer Plaintiff to a lower grade position, it allowed her to maintain her higher rate of pay. Additionally, after Plaintiff informed Defendant that she could not preform the transporter job, she was given almost seven months to find a position for which she was qualified and could perform. Defendant also encouraged Plaintiff to apply for positions she had an interest in even after her termination. These facts seem inconsistent with a desire to discriminate against Plaintiff due to her FMLA leave requests. Nevertheless, the Court is mindful of its role at the summary judgment stage. The Court must not the weigh the evidence, it must view it in a light most favorable to the non-moving party. Thus, in reaching its decision, the Court has endeavored only to assess whether Plaintiff has adduced enough evidence to reach a jury, not whether viewed objectively that evidence will actually be able to persuade the trier of fact to find in her favor.
Arguably, Defendant could have legally terminated Plaintiff at this time without violating the FMLA.
The Court will enter an order consistent with this Memorandum Opinion.
ORDER
On Defendant's motion for summary judgment, the Court having reviewed the memoranda and being otherwise sufficiently advised,
IT IS HEREBY ORDERED that Defendant's motion for summary judgment is SUSTAINED as to Plaintiff's ADA and Title VII race discrimination claims and those claims are DISMISSED WITH PREJUDICE.
IT IS FURTHER ORDERED that the motion for summary judgment is DENIED as to Plaintiff's FMLA claim pertaining to her transfer to the transport job.