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Parker v. Delmar Gardens of Lenexa, Inc.

United States District Court, D. Kansas

September 27, 2017

Annette Parker, Plaintiff,
v.
Delmar Gardens of Lenexa, Inc. d/b/a Garden Villas of Lenexa, Defendant.

          MEMORANDUM & ORDER

          John W. Lungstrum United States District Judge

         Plaintiff filed this lawsuit against her former employer alleging that defendant terminated her employment in retaliation for engaging in protected activity in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. She further alleges that defendant terminated her employment in retaliation for complaining about race discrimination in violation of 42 U.S.C. § 1981. This matter is presently before the court on defendant's motion for summary judgment (doc. 67). As will be explained, the motion is granted in part, denied in part and moot in part.[1]

         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.[2] Plaintiff Annette Parker is an African-American female who began her employment with defendant in 1989. Beginning in 2000, plaintiff was employed as a dietary aide. The first 25 years of plaintiff's employment passed largely without incident. While the record reflects that plaintiff was disciplined a handful of times between 2001 and 2013, these incidents are undisputedly not pertinent to the resolution of defendant's motion and defendant does not assert that those disciplinary write-ups factored into the decision to terminate plaintiff's employment. Beginning in May 2015, Travis Renfro was defendant's Executive Director. At all times pertinent to this lawsuit, Jeannie Mathews was defendant's Director of Nursing.

         Shortly after Mr. Renfro began working as the Executive Director, plaintiff began complaining to him about “situation at nights” and “how the dining room was set up at nights and wasn't properly set up the way it's supposed to be done for me the next day the way I left it for them in the afternoons.” According to plaintiff, she told Mr. Renfro that the “white kids” who worked the evening shifts were not properly cleaning and setting up the dining room before leaving each evening. No action was taken with respect to plaintiff's complaints. It is unclear from the record whether plaintiff identified the night-shift workers as “white” when she complained to Mr. Renfro. While plaintiff asserts in her submissions that she complained to Mr. Renfro that “white night workers were not being held the same standard” as plaintiff, the record contains no evidence that plaintiff raised concerns about differential treatment between the night-shift workers and plaintiff. Her concern was limited to the condition of the dining room when she arrived for her shift each morning.

         On September 15, 2015, Mr. Renfro issued plaintiff a “written counseling” for “negligent job performance by not attending to residents' needs and desires during meal service.” According to defendant, the discipline was issued in light of an incident that occurred in the dining room on Friday, September 11, 2015 between plaintiff and a resident. Viewed in the light most favorable to plaintiff, the evidence suggests that a resident seated in the dining room during lunch service had asked another employee for a sandwich. While the resident was waiting for her sandwich, the resident's tablemates had all finished eating lunch. The resident, who had not yet received a sandwich, became upset and told the employee that she wanted ice cream instead of a sandwich. Thereafter, plaintiff brought a sandwich to the resident, who advised plaintiff that she did not want a sandwich. Defendant asserts that the resident reported that both she and plaintiff “were irate” and “that they were both yelling.”

         On September 18, 2015, a co-worker accused plaintiff of shouting at her to “get the coffee and start passing” during lunch service. On September 22, 2015, plaintiff submitted a written “formal complaint of sexual harassment” to Mr. Renfro in which plaintiff stated that a charge nurse, on September 11, 2015, had pressed her breasts against plaintiff's breasts and then repeated that conduct immediately after plaintiff had pushed her away. In the written complaint, plaintiff states “this is the second time that this has been reported against the same employee.” Contrary to defendant's policy concerning the handling of sexual harassment complaints, Mr. Renfro did not share plaintiff's report with defendant's human resources manager. One day later, on September 23, 2015, plaintiff was issued a “Final Warning” for “activity which creates a disruption in the workplace” based on the September 18, 2015 incident. The warning, which was signed by Mr. Renfro, cautioned plaintiff that further violations would result in further disciplinary actions “up to and including termination.” On October 5, 2015, Mr. Renfro issued a written response to plaintiff in which he advised her that he had investigated her complaint and that, while it was impossible for him to determine what happened because there were no witnesses to corroborate plaintiff's report or the nurse's denial of that report, he had advised the charge nurse that the reported behavior “is considered sexual harassment.”

         On November 11, 2015, a resident reported to Ms. Mathews that another resident, Lauren Blundell, was not getting the meals that she wanted during meal service. Ms. Mathews reported this complaint to Mr. Renfro. While the record is unclear as to whether and to what extent Mr. Renfro investigated the incident concerning Ms. Blundell, Mr. Renfro avers that he decided to terminate plaintiff's employment because she violated a company rule “regarding mistreatment of residents” in connection with the incident. Plaintiff testified that Mr. Renfro never asked her about Ms. Blundell. A “potential discharge review” form filled out by Mr. Renfro indicates that a “resident interview” revealed that plaintiff was “being rude” to the resident and that plaintiff “yells a lot when talking to her.” Mr. Renfro terminated plaintiff's employment on November 16, 2015.

         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. Retaliation Claims

         Title VII makes it unlawful for an employer to retaliate against an employee because he or she has opposed any practice made unlawful by those statutes. 42 U.S.C. § 2000e-3(a). Plaintiff asserts in the pretrial order that defendant terminated her employment in retaliation for reporting “that the white evening employees in the dietary department were not completing their job duties” and/or for reporting “conduct she reasonably believed to be sexual harassment.” The court assesses plaintiff's retaliation claims under the McDonnell Douglas framework. Daniels v. United Parcel Serv., Inc., 701 F.3d 620, 638 (10th Cir. 2012). To state a prima facie case for retaliation, plaintiff “must show (1) [s]he engaged in protected opposition to discrimination, (2) a reasonable employee would have considered the challenged employment action materially adverse, and (3) a causal connection existed between the protected activity and the materially adverse action.” Id. (quoting Hinds v. Sprint/United Mgmt. Co., 523 F.3d 1187, 1202 (10th Cir. 2008)). If plaintiff presents a prima facie case of retaliation, then defendant must respond with a legitimate, nonretaliatory reason for the challenged action. Debord v. Mercy Health Sys. of Kansas, Inc., 737 F.3d 642, 656 (10th Cir. 2013). Plaintiff, then, must show that defendant's stated reason is pretextual. Id.[3]

         In its motion for summary judgment, defendant contends that summary judgment is warranted on plaintiff's retaliation claims because the evidence viewed in the light most favorable to plaintiff demonstrates that she did not engage in protected opposition to discrimination and, in any event, she cannot establish a causal connection between any protected activity and the termination of her employment. Defendant further argues that the record evidence is insufficient to permit a reasonable jury to conclude that defendant's proffered reason for plaintiff's termination is pretextual. Because no reasonable jury could conclude that plaintiff engaged in protected opposition to discrimination when she complained about the employees working the night shift, the court grants summary judgment on that claim. ...


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