Opinion
No. 1:01-cv-152.
October 21, 2002
MEMORANDUM
Presently before the Court is defendant's motion for summary judgment [Court File No. 19] which seeks to dismiss all claims asserted in the Complaint.
Plaintiff Dorna S. Fitten ("Fitten") asserts the following claims against her former employer, Chattanooga-Hamilton County Hospital Authority d/b/a Erlanger Health Systems ("Hospital Authority" or "Erlanger"): a 42 U.S.C. § 1983 claim for violations of Fitten's rights pursuant to the First, Fourth, Fifth, and Fourteenth Amendment; claims of racial discrimination pursuant to Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e-2000e-17 ("Title VII"), and the Tennessee Human Rights Act, Tenn. Code Ann. §§ 4-21-101-903 ("THRA"); claims of age discrimination pursuant to the THRA and the Age Discrimination in Employment Act of 1967, 29 U.S.C. § 621-634 ("ADEA"); a claim of violations under the Employee Retirement Income Security Act of 1974, 29 U.S.C. § 1001-1461 ("ERISA"); and claims of defamation and breach of contract under Tennessee common law.
For the reasons expressed below, plaintiff's motion [Court File No. 19] will be GRANTED IN PART and DENIED IN PART.
I. STANDARD OF REVIEW
Summary judgment is appropriate where no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. FED. R. CIV. P. 56(c). In ruling on a motion for summary judgment, the Court must view the facts contained in the record and all inferences that can be drawn from those facts in the light most favorable to the non-moving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); National Satellite Sports, Inc. v. Eliadis Inc., 253 F.3d 900, 907 (6th Cir. 2001). The Court cannot weigh the evidence or determine the truth of any matter in dispute. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986).
The moving party bears the initial burden of demonstrating that no genuine issue of material fact exists. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). To refute such a showing, the non-moving party must present some significant, probative evidence indicating the necessity of a trial for resolving a material, factual dispute. Celotex Corp., 477 U.S. at 322. A mere scintilla of evidence is not enough. Anderson, 477 U.S. at 252; McLean v. Ontario, Ltd., 224 F.3d 797, 800 (6th Cir. 2000). The Court's role is limited to determining whether the case contains sufficient evidence from which a jury could reasonably find for the non-moving party. Anderson, 477 U.S. at 248, 249; National Satellite Sports, 253 F.3d at 907.
II. FACTS
The record will suggest the following findings of fact if the allegations of the plaintiff's complaint are viewed in the light most favorable to Fitten, the non-moving party. The Court makes these findings of fact solely for the purpose of resolving the motion before it.
The Hospital Authority is a governmental entity and political subdivision of the State of Tennessee. See, e.g., Ketron v. Chattanooga-Hamilton County Hosp. Auth., 919 F. Supp. 280, 284 (E.D.Tenn. 1996). The Hospital Authority was created by the Tennessee Legislature pursuant to Chapter 297 of the Tennessee Private Acts of 1976.
Fitten is a forty-nine year old, African-American woman. In 1986, Erlanger hired Fitten as a file clerk in the Patient Accounts Service Department. Fitten became a Payroll Specialist in the Payroll area in 1988. She received a promotion in 1995, becoming a Senior Payroll Specialist in the Payroll area, and later was promoted to Payroll Coordinator.
In 1995 or 1996, a Payroll area employee left her employment at Erlanger due to a reduction in force. In 1998, another reduction in force occurred causing a Payroll area employee, Pam Kinsey, to find a position in Patient Financial Services. Since 1995, Carol Dickson, a thirty-eight year old, white woman, has been employed in the Payroll area.
C. J. Beslin was the Payroll area manager during the time Fitten was employed in the Payroll area. Britt Tabor became the Controller in 1997. From that time, he had general supervisory responsibility over the General Accounting Department, including the Payroll area.
During 1997 and 1998, Britt Tabor periodically received complaints from Erlanger employees regarding poor customer service from the Payroll area. In 1999, Erlanger instituted a "Newer Kind of Care" program, that was designed to increase employees' awareness of customer service at Erlanger. "Customers" included patients and members of the public as well as other Erlanger employees. Erlanger informed its employees that rudeness toward customers would not be tolerated.
Even after Erlanger instituted the "Newer Kind of Care" program, Britt Tabor continued to receive complaints concerning the Payroll area. He then conducted a survey of Erlanger employees regarding the level of technical accuracy and customer service of the Payroll area. The results of the survey reflected that the Payroll area employees performed well; however, some employees complained about the Payroll area's customer service and specifically named "Dorna." Fitten points out, however, that the response rate to the approximately 3500 surveys was very low. Moreover, only three of the responses specifically complained about "Dorna," and two responses specifically praised "Dorna." C. J. Beslin asserts that neither he nor Britt Tabor discussed these complaints with Fitten.
After he conducted the survey, Britt Tabor asserts that he continued to receive complaints about the Payroll area's poor customer service, including specific complaints about "Dorna." He contends that his policy had been to forward any complaints to C. J. Beslin, the manager of the Payroll area; however, in 2000, Britt Tabor retained the complaints about Fitten. Britt Tabor asserts that he then met with C. J. Beslin on July 27, 2000, to discuss the complaints against Fitten. C. J. Beslin asserts that Britt Tabor never discussed with him Fitten's alleged "rudeness."
C.J. Breslin and Britt Tabor approved Fitten's annual performance review on August 23 and 24, 2000. Fitten received scores that are well above average. C.J. Breslin wrote, "Dorna is an exceptional employee and invaluable to this organization . . . . Just continue to work on customer service." C. J. Breslin has worked in close proximity with Fitten and asserts that he has not observed her to be rude with customers or to have violated the telephone etiquette policy.
In September 2000, Susan Burkett, the Vice-President at T. C. Thompson's Children's Hospital, phoned Britt Tabor to discuss complaints that she had received from managers at Children's Hospital concerning Fitten. One such complaint involved an argument between Fitten and an assistant nurse manager, Pamela Marquit Bookout, concerning nurses' overtime pay in which Fitten reportedly stated that "the nurses are putting Erlanger in the hole" and that nurses did not want to work at Erlanger with "all these cheating, lying nurses." Susan Burkett also told Britt Tabor that she heard that Children's Hospitals employees would prefer mistakes to remain in their payroll over asking Fitten to correct the mistakes.
Britt Tabor asserted that this incident caused him greater concern about Fitten so he contacted Charlesetta Woodard-Thompson, the Chief Human Resources Officer, regarding this most recent complaint. On October 3, 2000, Britt Tabor held a meeting with Woodard-Thompson, C. J. Beslin, and Fitten in attendance. The complaints against Fitten were discussed; however, neither Fitten nor C. J. Beslin were permitted to read the complaints. C. J. Beslin asserts that before this meeting, he did not know about the specific complaints. The parties decided that C. J. Beslin would meet with the individuals who made complaints.
On October 11, 2000, Britt Tabor held another meeting at which Susan Burkett, Charlesetta Woodard-Thompson, and C. J. Beslin discuss complaints against Fitten with individuals who complained against her. On October 18, 2000, Britt Tabor, Charlesetta Woodard-Thompson, and C.J. Beslin met with Fitten to discuss the complaints and to counsel her on providing good customer service. The parties determined that another meeting would be held to discuss a work improvement plan.
At a meeting held on November 2, 2000, Britt Tabor presented Fitten with a work improvement plan. Charlesetta Woodard-Thompson and C. J. Beslin also attended the meeting. The work improvement plan asked Fitten to acknowledge the need to improve her customer service skills, to attend a customer service training session, and to immediately provide good customer service. Examples of good customer service were provided. The plan stated that it was designed to give Fitten the opportunity to avoid termination "for the actions noted on the attached e-mails." However, no e-mails were attached and Fitten contends that she never knew the contents of the e-mail complaints. The plan also stated that if Fitten failed to comply with the plan or if she had "an unacceptable customer service encounter as determined by Human Resources," she would be discharged immediately. The plain failed to state the time frame for which the plan would remain in effect as is customary according to Fitten, C. J. Beslin, and Charlesetta Woodard-Thompson.
Fitten asserts that Britt Tabor presented her with three options: (1) sign and comply with the work improvement plan; (2) take a leave absence from the Payroll area, without loss of seniority, until she could be placed in another position within Erlanger; or (3) be discharged from employment. At the end of the meeting, Fitten took the plan with her to review.
On November 8, 2000, Britt Tabor received a copy of the work improvement plan signed only by C. J. Beslin. Fitten attached a memo stating that she does "deny, and disagree, with all charges" but that she "would like to attend the Seminars that Erlanger has offered to me." Furthermore, she "will continue to give one-hundred percent to my job and the New Kind of Care."
On December 7, 2000, Britt Tabor and Charlesetta Woodard-Thompson met with Fitten again to encourage her to sign the work improvement plan. Fitten indicated that she would not comply with the provisions of the plan and left the meeting. Britt Tabor telephoned C. J. Beslin and asked him to retrieve Fitten's employment badge and security code for the payroll security system.
C. J. Beslin reports being uncomfortable with the work improvement plan and with the disciplinary action taken against Fitten. C. J. Beslin states that there have been complaints against every Payroll area employee and that rudeness is in the eye of the beholder. He asserts that Erlanger's guidelines on disciplinary procedures did not require termination of employment for Fitten's alleged offenses.
The next day, Britt Tabor placed Pam Kinsey in the Payroll area on an interim basis. Britt Tabor asserts that Pam Kinsey was the only Erlanger employee familiar with the payroll system software. He also asserts that C. J. Beslin recommended Pam Kinsey to remain in the position permanently.
III. ANALYSIS
At the outset, the Court notes that Fitten has not replied to Erlanger's arguments regarding her § 1983, ERISA, and defamation claims. The Court finds that Fitten has waived opposition thereto. Erlanger's arguments are well taken, and the motion for summary judgment pertaining to the aforementioned claims will be GRANTED and those claims DISMISSED.
Even though the Hospital Authority has not challenged this Court's jurisdiction, subject matter jurisdiction may be raised at any time by any party or sua sponte by the Court. See Franzel v. Kerr Mfg. Co., 959 F.2d 628, 630 (6th Cir. 1992); FED. R. CIV. P. 12(h)(3). The Court has determined that it does not have subject matter jurisdiction of Fitten's claims under the ADEA, the THRA, or Tennessee common law. Thus, for the reasons expressed below, those claims will be DISMISSED.
The Eleventh Amendment provides, "The Judicial power of the United States shall not be construed to extend to any suit in law or in equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State." U.S. CONST. amend. XI. The Supreme Court has held that the Eleventh Amendment also bars suit in federal court against the state by its own citizens. See, e.g., Hans v. Louisiana, 134 U.S. 1 (1889).
In the absence of express state consent or express congressional abrogation by federal statute, the Eleventh Amendment bars action in federal court against the Hospital Authority, a governmental entity of the State of Tennessee. See, e.g., Boyd v. Tennessee State University, 848 F. Supp. 111, 114-15 (M.D. Tenn 1994); Stefanovic v. University of Tennessee, 935 F. Supp. 944, 946 (E.D. Tenn 1996). Tennessee has expressly preserved its sovereign immunity, see TENN. CODE ANN. § 20-13-102, and the state has not consented to suit, pursuant to the THRA or to state common law, in the federal courts. See Boyd, 848 F. Supp. at 114 ("There is no express consent by Tennessee, neither within the THRA nor elsewhere, to a suit in federal court for claims under the THRA."); Stefanovic, 935 F. Supp. at 947 ("Accordingly, except for the Title VII claims . . . the Eleventh Amendment is an absolute bar to all of plaintiff's remaining claims against UT."). Moreover, the ADEA did not validly abrogate the states' sovereign immunity from suits brought by private individuals. See Kimel v. Florida Bd. of Regents, 528 U.S. 62, 91 (2000); Coger v. Board of Regents of Tenn., 209 F.3d 485, 486 (6th Cir. 2000).
The Kimel holding strips this Court's jurisdiction to try Fitten's ADEA suit against a state entity. Similarly, because of the Hospital Authority's sovereign immunity, the Court does not have supplemental jurisdiction of Fitten's claims pursuant to the THRA and to the state common law. As such, the following claim will be DISMISSED for lack of subject matter jurisdiction: age discrimination pursuant to the ADEA and the THRA, race discrimination pursuant to the THRA, and breach of contract pursuant to state law. Fitten's only remaining claim is race discrimination pursuant to Title VII.
Under Title VII, a plaintiff can prove her case by using direct evidence or circumstantial evidence sufficient to establish an inference of discrimination. See Logan v. Denny's, Inc., 259 F.3d 558, 566-67 (6th Cir. 2001). An inference of discrimination can be raised through a prima facie case.
Fitten can establish a prima facie case of disparate treatment because of her race if she demonstrates that (1) she was a member of a protected class; (2) she was qualified for the relevant position; (3) she suffered an adverse employment action; and (4) a similarly-situated, non-protected individual was treated more favorably. See Gray, 263 F.3d at 598; Logan, 259 F.3d at 567.
Fitten has established her prima facie case. Fitten is African-American and is qualified for the position in the Payroll area. Fitten suffered an adverse employment action in that she is no longer employed with Erlanger. Although Erlanger argues that Fitten voluntarily resigned from her position while Fitten argues that she was terminated by Britt Tabor, there is a genuine issue of material fact as to the circumstances surrounding the termination. Fitten asserts that she was replaced by Pam Kinsey, a white woman, and that other white Erlanger employees who engaged in "rude" behavior received less discipline than she did. An inference of discrimination can be established.
If a plaintiff establishes a prima facie case, the burden of production shifts to the defendant to proffer a legitimate, non-discriminatory reason for the adverse action. See Logan, 259 at 567 (6th Cir. 2001); Wade v. Knoxville Utils. Bd., 259 F.3d 452, 461 (6th Cir. 2001). Erlanger carries its burden. Britt Tabor denies taking Fitten's race into account in making the decision to discipline and terminate her employment. Britt Tabor asserts that he received several solicited and unsolicited complaints about Fitten's poor customer service skills and that she failed not only to comply with his recommended work improvement plan, but also to acknowledge the complaints against her.
The ultimate burden of proof remains with the plaintiff, who must demonstrate that defendant's asserted reason for the discriminatory act is a pretext for discrimination. See Logan, 259 F.3d at 567; Wade, 259 F.3d at 452. Fitten can rebut a defendant's proffered reason for an adverse employment action by demonstrating that (1) Erlanger's asserted reason had no basis in fact; (2) the reason did not actually motivate the discharge; or (3) the reason was insufficient to motivate the adverse action. See Gray v. Toshiba Am. Consumer Prods., Inc., 263 F.3d 595, 600 (6th Cir. 2001).
Fitten argues that Britt Tabor's proffered reasons were insufficient to motivate her discharge. Fitten concedes that there were complaints against her but argues that Britt Tabor's survey contained only three complaints specifically against Fitten. Furthermore, she was never counseled about those complaints, and prior to instituting this action, Fitten was not fully informed about the nature of the unsolicited e-mail complaints. She sought in vain for an opportunity to explain the circumstances of each situation. Fitten also argues that other Erlanger employees whose behavior was deemed "rude" by management received far less discipline than she. Moreover, Fitten's immediate supervisor, C. J. Beslin, asserts that he never witnessed Fitten being rude to customers.
In response to Erlanger's argument that she was terminated because she failed to sign the work improvement plan, Fitten argues that the work improvement plan did not follow Erlanger's own guidelines. C. J. Beslin and Charlesetta Woodard-Johnson agree with Fitten's assessment of the plan. The work improvement plan did not notify Fitten of the behavior that she was forbidden to engage in because the e-mail complaints cited in the plan were not attached. The plan also did not contain a beginning and end date for her work improvement time period.
Fitten has carried her ultimate burden. The Court finds that Fitten's proof that other employees were not terminated for rudeness, that her immediate supervisor who was in close proximity never witnessed rude behavior, and that the work improvement plan contained irregularities persuade the Court that there is a genuine issue of material fact as to whether Erlanger's profferred reasons for terminating Fitten's employment were pretextual.
Erlanger's motion for summary judgment will be DENIED as to Fitten's claim of race discrimination pursuant to Title VII.
IV. CONCLUSION
Accordingly, Erlanger's motion for summary judgment [Court File No. 19] will be GRANTED IN PART and DENIED IN PART. An order will enter.
ORDER
In accordance with the accompanying memorandum, it is hereby ORDERED that the defendant's motion for summary judgment [Court File No. 19] is GRANTED IN PART and DENIED IN PART. Plaintiff's sole remaining claim is race discrimination pursuant to Title VII. The parties shall prepare for trial.