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Ready v. Southeast Kansas Mental Health Center

United States District Court, D. Kansas

February 27, 2017

Dawn D. Ready, Plaintiff,
v.
Southeast Kansas Mental Health Center, Defendant.

          MEMORANDUM & ORDER

          John W. Lungstrum United States District Judge

         Plaintiff Dawn D. Ready filed this lawsuit against defendant, her former employer, asserting that defendant terminated plaintiff's employment on the basis of her gender and/or her age in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq. Plaintiff also asserts several claims under the Americans with Disabilities Act, 42 U.S.C. § 12101-that defendant terminated plaintiff on the basis of her disability and/or in retaliation for engaging in protected activity and that defendant failed to accommodate her disability. Finally, plaintiff claims that defendant terminated her employment in violation of Kansas public policy. This matter is presently before the court on defendant's motion for summary judgment on all claims (doc. 43). As explained below, the motion is granted in part and denied in part.

         I. Facts

         The following facts are uncontroverted, stipulated in the pretrial order, or related in the light most favorable to plaintiff as the nonmoving party. Defendant Southeast Kansas Mental Health Center (SEKMHC) is a private non-profit community mental health center with offices in several cities in southeast Kansas. Plaintiff Dawn Ready was employed by the organization from 1999 until the termination of her employment in 2013. At all times relevant to this lawsuit, Bob Chase was the executive director of SEKMHC and Dr. John Helton was the director of clinical services for SEKMHC.

         Plaintiff was hired as a crisis intervention therapist in 1999. In December 2003, plaintiff was reassigned to the position of outpatient therapist and she began working primarily out of defendant's Chanute, Kansas office. At that time, Dr. Helton became her immediate supervisor. During this same time frame, plaintiff was diagnosed with primary biliary cirrhosis, an autoimmune disease. At some point, she was also diagnosed with Hashimoto's thyroiditis and intermittent asthma. It is undisputed that Mr. Chase and Dr. Helton were aware of plaintiff's diagnoses and defendant concedes for purposes of its motion that one or more of plaintiff's diagnoses constitutes a “disability” for purposes of the ADA. These early years of plaintiff's employment were not without incident. Plaintiff, for example, was counseled for performance issues and her coworkers sometimes complained about her demeanor. Moreover, Dr. Helton recommended plaintiff's termination in 2004. Mr. Chase declined to adopt that recommendation and her employment continued. But the vast majority of any performance-related or personality-related issues regarding plaintiff's employment during these years are not pertinent to the disposition of defendant's motion.

         In 2009, Dr. Shawna Wright became the operations manager for the Chanute office. One of her first initiatives was to improve therapists' productivity by instituting a “goal” of 1200 billable hours per year. In 2009, 2011 and 2012, plaintiff billed below the 1200-hour goal and billed the lowest number of hours of any full-time outpatient therapist. At the time of her termination in November 2013, plaintiff had billed the lowest number of hours of any full-time outpatient therapist for that calendar year.

         In 2010 or 2011, plaintiff began requesting various accommodations for her disability, primarily related to various odors or chemicals in the air that would aggravate her asthma and her primary biliary cirrhosis. On several occasions, she asked Dr. Wright and Dr. Helton to remove all aerosol sprays from the office, including automatic air fresheners in the staff and lobby restrooms and the lobby itself. While the automatic air fresheners were ultimately removed from the staff restrooms permanently, defendant never removed the air fresheners from the lobby or the lobby restrooms. In addition, plaintiff asked defendant's management to remind the staff to avoid using aerosol sprays, perfumes or scented lotions; to change the window cleaner to a non-ammonia based product; to rearrange pest control treatments to accommodate plaintiff's schedule; and to “air out” new office chairs prior to bringing those chairs into the office. She sought confirmation from management that the no-smoking policy would be enforced and reviewed with staff. She requested that defendant use non-VOC paint when the offices were repainted. She asked to have the duct work and vents cleaned throughout the building. She asked that staff members refrain from burning candles. When the parking lot was repaved, she asked permission to leave for the day because the odor was too strong. Plaintiff had to repeat several of these requests before defendant responded to her but it is undisputed that, except for the automatic air fresheners in the lobby and lobby restrooms, defendant complied (admittedly, sometimes with frustration) with each of plaintiff's requests for accommodations and routinely reminded employees to comply with these requests. The record reflects that plaintiff routinely made these types of requests until the end of her employment.

         In March 2012, both Dr. Helton and Dr. Wright recommended the termination of plaintiff's termination. According to defendant, that recommendation was based on plaintiff's treatment of staff members, her low productivity and the fact that several clients refused to see plaintiff for counseling services. Mr. Chase declined to adopt that recommendation. Defendant asserts that these concerns continued throughout 2012 and into 2013. Dr. Helton sent a memorandum to Mr. Chase in early January 2013 outlining these concerns again. In early February 2013, Dr. Helton and Dr. Wright met with plaintiff to discuss these concerns.

         On October 31, 2013, plaintiff called Mr. Chase to notify him that she and a number of coworkers had been experiencing symptoms that she attributed to mold in the building. In response, Mr. Chase angrily yelled, “I don't have to accommodate you!” Mr. Chase inspected the building and found no evidence of mold, although he concedes he likely would not have been able to identify the presence of mold. Mr. Chase believed that plaintiff's symptoms had been triggered by the recent replacement of the furnace air filters in the office. On November 1, 2013, plaintiff sent Mr. Chase a follow-up email in which she indicated her hope that defendant would attempt to discover the source of the problem. Mr. Chase responded that defendant was “already looking into it.” Following plaintiff's email, Mr. Chase arranged for a general contractor to perform a walk-through of the building and no mold was discovered. Eventually, plaintiff's symptoms subsided.

         At lunchtime on November 15, 2013, Melinda Huston (a front desk employee) approached plaintiff and disclosed that she was concerned that one of defendant's child case managers was self-mutilating, had an eating disorder and was suicidal. Ms. Huston told plaintiff that she had reached out to Malinda Bailey, defendant's Director of Children's Services.

         Plaintiff told Ms. Huston that if they did not “hear anything” by Monday, then plaintiff would contact Dr. Helton. After having a telephone discussion with Ms. Huston, Ms. Bailey immediately called defendant's associate executive director Nathan Fawson to discuss a plan of action and to arrange a meeting for Monday, November 18, 2013. Mr. Chase was also advised of the situation on Friday, November 15, 2013 and he contacted Dr. Helton that evening to advise him about the situation and about the meeting scheduled for Monday. There is no evidence that the case manager saw clients on Friday, November 13, 2013 or over the weekend.

         In any event, on Friday, November 15, 2013, plaintiff told several coworkers about the case manager situation, including her plan to contact Dr. Helton on Monday morning.

         On Monday morning, November 18, 2013, plaintiff sent an email to Dr. Helton that read as follows:

Late last week Melinda made me aware that [case manager] has been self-mutilating, along with a host of other behaviors. I advised Melinda to contact [case manager's] supervisor ASAP. Since Melinda revealed this to me, I have been concerned about my client's [sic] who are assigned to her, some who may be cutters as well. My concern with protecting the client has been weighing on me and really I do not feel comfortable with my current/future client's [sic] seeing her. Given that Melinda shared this with me, I decided it would be best to pass along to you in addition to Melinda sharing with Malinda Bailey.

         Dr. Helton testified that he was concerned that plaintiff had not disclosed the information immediately upon learning it. Defendant's evidence suggests that Dr. Helton and Mr. Chase were also concerned that plaintiff had discussed the matter with her coworkers without advising management of the situation first and letting management handle the situation. On November 25, or 26, 2013, Mr. Chase asked Dr. Helton whether he recommended the termination of plaintiff's employment and Dr. Helton responded that he did. Dr. Wright agreed with that recommendation. Plaintiff's employment was terminated on November 26, 2013. She was 49 years old at that time.

         Nearly three months after the termination of plaintiff's employment, Dr. Helton created a document entitled “History of Performance Concerns: Dawn Ready, LCP.” The document contains 77 separate “events” concerning plaintiff's employment with corresponding dates ranging from 1999 through 2013 and is nearly 8 pages in length. The events range from plaintiff “cherry picking” her caseload and getting behind on paperwork to her treatment of her coworkers and her requests for accommodations. Dr. Helton testified that each of the items in the document were performance or disciplinary concerns that he had with respect to plaintiff. However, when asked about specific entries concerning plaintiff's requests for accommodations, he testified that those “events” were not performance concerns.

         Additional facts will be provided as they relate to the specific arguments raised by the parties in their submissions.

         II. Summary Judgment Standard

         “Summary judgment is appropriate if the pleadings, depositions, other discovery materials, and affidavits demonstrate the absence of a genuine issue of material fact and that the moving party is entitled to judgment as a matter of law.” Water Pik, Inc. v. Med-Systems, Inc., 726 F.3d 1136, 1143 (10th Cir. 2013) (quotation omitted); see Fed. R. Civ. P. 56(a). A factual issue is genuine “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Water Pik, Inc., 726 F.3d at 1143 (quotation omitted). “The nonmoving party is entitled to all reasonable inferences from the record; but if the nonmovant bears the burden of persuasion on a claim at trial, summary judgment may be warranted if the movant points out a lack of evidence to support an essential element of that claim and the nonmovant cannot identify specific facts that would create a genuine issue.” Id. at 1143-44.

         III. Gender and Age Discrimination

         In the pretrial order, plaintiff contends that defendant terminated her employment on the basis of her gender and/or age in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq. As plaintiff has no direct evidence of discrimination, her claims are analyzed using the burden-shifting framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See Daniels v. United Parcel Serv., Inc., 701 F.3d 620, 627 (10th Cir. 2012). Under McDonnell Douglas, plaintiff has the initial burden of establishing a prima facie case of discrimination. Id. To set forth a prima facie case of discrimination, plaintiff must establish “(1) membership in a protected class and (2) an adverse employment action (3) that took place under circumstances giving rise to an inference of discrimination.” Id. (citing EEOC v. PVNF, LLC, 487 F.3d 790, 800 (10th Cir. 2007)). If she establishes a prima facie case, the burden shifts to defendant to assert a legitimate, nondiscriminatory reason for the adverse employment action. Id. If defendant meets this burden, summary judgment against plaintiff is warranted unless she introduces evidence “that the stated nondiscriminatory reason is merely a pretext for discriminatory intent.” Id. (citing Simmons v. Sykes Enters., 647 F.3d 943, 947 (10th Cir. 2011)).

         A. Plaintiff's Prima Facie Case

         In its motion for summary judgment, defendant contends that plaintiff cannot establish a prima facie case of gender and age discrimination because she cannot show that the termination of her employment took place under circumstances giving rise to an inference of discrimination. To raise an inference of discrimination at the prima facie stage in a discriminatory discharge case, a plaintiff's burden is not onerous-she need only show that she belongs to a protected class; that she was qualified for her job; and that the job was not eliminated after her discharge. Kendrick v. Penske Transp. Servs., Inc., 220 F.3d 1220, 1229 (10th Cir. 2000); Perry v. Woodward, 199 F.3d 1126, 1138 (10th Cir. 1999); see also Nguyen v. Gambro BCT, Inc., 242 Fed.Appx. 483, 487-89 (10th Cir. 2007) (prima facie step is utilized to eliminate the two most common explanations for termination-lack of qualification or the elimination of the position). Defendant contends that plaintiff's job was essentially eliminated after her discharge because her caseload was simply absorbed by existing employees. In response, plaintiff directs the court to evidence that defendant hired a new outpatient therapist who was significantly younger than plaintiff roughly 7 months after plaintiff's termination. Plaintiff also relies on her pretext evidence to support her prima facie case. While the court questions whether plaintiff's evidence is sufficient to survive the prima facie stage, the court believes it is appropriate in these circumstances to resolve plaintiff's claims at the pretext stage. This aspect of defendant's motion is denied. See Adamson v. Multi Community Diversified Servs., Inc., 514 F.3d 1136, 1151 (10th Cir. 2008) (“[T]here is no proscription in an appropriate case against using pretext evidence to support a prima facie case if it indeed gives rise to an inference of actionable discriminatory intent.”).

         B. The Pretext Analysis

         Because the court assumes that plaintiff has satisfied her burden of establishing a prima facie case of discrimination, the court turns to whether defendant has met its burden to articulate a legitimate, nondiscriminatory reason for plaintiff's discharge. “This burden is one of production, not persuasion; it can involve no credibility assessment.” Carter v. Pathfinder Energy Servs., Inc., 662 F.3d 1134, 1149 (10th Cir. 2011) (quoting Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142 (2000)). The Tenth Circuit has characterized this burden as “exceedingly light, ” and the court finds that defendant has carried it here. See id. According to defendant, plaintiff was terminated based on historic underperformance, poor interactions with coworkers, failing to improve with training and counseling, and failing to immediately disclose her knowledge of a case manager's self-harming behavior. The burden of proof, then, shifts back to plaintiff to show that defendant's proffered reasons are pretextual.

         Evidence of pretext “may take a variety of forms, ” including evidence tending to show “that the defendant's stated reason for the adverse employment action was false” and evidence tending to show “that the defendant acted contrary to a written company policy prescribing the action to be taken by the defendant under the circumstances.” Id. at 1150 (quoting Kendrick, 220 F.3d at 1230). A plaintiff may also show pretext with evidence that the defendant had “shifted rationales” or that it had treated similarly situated employees differently. Crowe v. ADTServs., Inc., 649 F.3d 1189, 1197 (10th Cir. 2011). In essence, a plaintiff shows pretext by presenting evidence of “weakness, implausibility, inconsistency, incoherency, or contradiction in the employer's stated reasons, such that a reasonable jury could find them unconvincing.” Debord v. Mercy Health System of Kansas, Inc., 737 F.3d 642, 655 (10th Cir. 2013). In determining whether the proffered reason is pretextual, the court examines “the facts as they appear to the person making the decision, not as they appear to the plaintiff.” Id. (emphasis ...


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