United States District Court, D. Kansas
MEMORANDUM & ORDER
W. LUNGSTRUM, UNITED STATES DISTRICT JUDGE
filed this lawsuit against her former employer, Faith Home
Healthcare, Inc., alleging that her employment was terminated
in retaliation for opposing discrimination in violation of
Title VII of the Civil Rights Act of 1964, 42 U.S.C. §
2000e et seq., and 42 U.S.C. § 1981. Defendant then
asserted counterclaims of conversion, tortious interference
with business expectancy and breach of fiduciary duty. This
matter is presently before the court on the parties'
cross-motions for summary judgment on plaintiff's
retaliation claim and plaintiff's motion for summary
judgment on all counterclaims. As will be explained,
defendant's motion for summary judgment on
plaintiff's retaliation claim is granted and
plaintiff's motion for summary judgment is granted as to
each counterclaim. Plaintiff's motion for summary
judgment on her retaliation claim is denied. With respect to
plaintiff's retaliation claim, summary judgment is
granted in favor of defendant because no reasonable jury
could conclude that plaintiff engaged in protected opposition
to race discrimination when she reported that the
company's owner, on two occasions, asserted that he was
not taking certain actions based on an employee's race.
With respect to defendant's counterclaims, summary
judgment in favor of plaintiff is granted because defendant
failed to allege any actual damages with respect to its
counterclaims. Thus, no claims remain for
following facts are uncontroverted or related in the light
most favorable to the nonmoving party. Defendant Faith Home
Healthcare, Inc. (FHH) is a Kansas corporation. Beverly
Kimzey is the owner, president and CEO of FHH. Bob Blevins is
Ms. Kimzey's brother. Mr. Blevins owns Sacred Hearth
Health, Inc. (SHH). Both Mr. Blevins and Ms. Kimzey are
Caucasian. FHH is in the business of providing skilled
in-home nursing care and health-related services. SHH is a
holding company that provides services to entities, including
FHH, that provide direct care to patients. FHH and SHH share
office space, employees, and human resource functions. The
parties vigorously dispute the relationship between FHH and
SHH-defendant FHH contends that they are entirely separate
and distinct entities, plaintiff contends that they operate
as a single or joint employer. Because the resolution of that
issue has no bearing on the outcome of the motions, the court
declines to address it.
Danielle Fergus, a Caucasian woman, began working for FHH in
June 2016 as the Director of Nursing. In that role, plaintiff
was responsible for scheduling nurses for patients, training
nurses, and managing nurses' care of patients. At all
times relevant to this lawsuit, plaintiff's supervisor
was Patty Clayborn, plaintiff's sister. Two other
employees had offices in the same suite as plaintiff and Ms.
Clayborn-Amber Pearson, an African-American woman who
provided billing and audit services to both FHH and SHH, and
Magan Brown, a Caucasian woman who worked as an intake
coordinator for FHH. Ms. Pearson was the only
African-American person employed by FHH and SHH.
retaliation claim is based entirely on plaintiff's report
to Ms. Clayborn that, on two occasions, Mr. Blevins made an
allegedly discriminatory remark to Ms. Pearson. As will
explained, plaintiff overheard the second of those remarks
and Ms. Pearson told her about the first remark. Because the
law requires plaintiff to show a reasonable belief that she
was reporting race discrimination when she reported Mr.
Blevins' comments, see Fassbender v. Correct Care
Solutions, LLC, 890 F.3d 875, 980 (10th Cir. 2018), the
court's recitation of the facts focuses primarily on
whether the evidence, viewed in the light most favorable to
plaintiff, is sufficient for a jury to conclude that
plaintiff's belief that she was reporting race
discrimination was reasonable. See EEOC v. Rite Way
Serv., Inc., 819 F.3d 235, 243-44 (5th Cir. 2016)
(information known to the complaining party but not revealed
in his or her report is relevant when assessing the
reasonableness of the employee's belief that the employer
violated Title VII).
February 2018, Mr. Blevins came to Ms. Pearson's office
to advise her that he was going to be hiring more employees
and that those new employees would potentially get to pick
their offices from the empty offices available. According to
Ms. Pearson, Mr. Blevins told her that he “wanted to
give me the opportunity to choose before them since I had
been there longer, and he jokingly stated that he didn't
want to not give me that opportunity and then me assume that
it was because I was black.” Ms. Pearson testified that
although the comment made her feel “uncomfortable,
” she was not offended by it. In fact, Ms. Pearson
testified that Mr. Blevins made it widely known in the office
that she was his “favorite” employee. The
evidence reflects that only Magan Brown overheard the remark.
In any event, the parties do not dispute how Ms. Pearson
later described the remark to plaintiff, what plaintiff
perceived as Mr. Blevins' remark, or how plaintiff
reported the remark to Ms. Clayborn-that Mr. Blevins did not
want Ms. Pearson to think that she was not getting a certain
office based on her race. After Mr. Blevins left Ms.
Pearson's office, Ms. Brown approached her and asked her
about the comment.
happened next is hotly contested. Defendant, supported by Ms.
Pearson's testimony, asserts that Ms. Pearson told Ms.
Brown that while she was uncomfortable about the remark, she
was not offended by it and wanted to “let it go.”
Defendant further contends that Ms. Brown told Ms. Pearson
that she should feel offended, that the remark was
inappropriate, and that she should start documenting things
said by Mr. Blevins. Ms. Pearson testified that Ms. Brown
shared the comment with Ms. Clayborn, and that Ms. Brown and
Ms. Clayborn then began trying to convince Ms. Pearson that
Mr. Blevins was a “racist” and that they should
join together to file a lawsuit against him. Ms. Pearson
testified that Ms. Clayborn told Ms. Pearson that she was the
only one who did not receive a Christmas bonus; that she was
hired only to fill a “quota”; and that Mr.
Pearson was underpaid. The record is devoid of any evidence
as to the source of Ms. Clayborn's knowledge as to these
issues or the truth of these statements. According to Ms.
Pearson, Ms. Clayborn attributed these factors to Ms.
Pearson's race and to Mr. Blevins' alleged racism.
For purposes of the limited issue here, however, it is
significant only that plaintiff does not contend that she had
information-right or wrong-that Ms. Pearson was hired to fill
a quota, that Ms. Pearson's race had any bearing on any
bonus or compensation decision, or that Mr. Blevins made any
employment decisions based on Ms. Pearson's race. Ms.
Pearson further testified that, during this time frame, Ms.
Clayborn told her that she “was going to bring Bob
Blevins down.” Ms. Clayborn and Ms. Brown generally
deny stirring up trouble and testified that they were
genuinely concerned about Mr. Blevins' remark. The
record, however, contains copies of group text messages among
Ms. Brown, Ms. Clayborn and plaintiff in which they discuss
suing Mr. Blevins and starting their own home health care
agency with the proceeds. Ms. Brown, Ms. Clayborn and
plaintiff all testified that the text messages were sent in
Friday, March 23, 2018, several employees met at a bar after
work. Ms. Pearson did not attend that outing, but plaintiff,
Ms. Brown and Ms. Clayborn were in attendance, along with
several other SHH and/or FHH employees. Ms. Clayborn
announced at that event that Ms. Pearson was planning to sue
Mr. Blevins for race discrimination. Plaintiff does not
dispute this fact. Kortney Randall, defendant's human
resources representative, heard Ms. Clayborn's statement
and expressed concern because she was not aware of any
discrimination reports or concerns in the office. Ms. Randall
immediately reported Ms. Clayborn's statement to Mr.
Blevins and Ms. Kimzey. On Monday, March 26, 2018, Mr.
Blevins came to Ms. Pearson's office between 8:45am and
9:00am. According to Ms. Pearson, Mr. Blevins apologized for
making Ms. Pearson feel like he was discriminating against
her and told her that “he thought very highly of [her]
and he looked at [her] like family and he felt comfortable
joking with [her] in that way.”
that same morning, Mr. Blevins and Ms. Kimzey asked Ms.
Pearson to come over to Mr. Blevins' office in Suite
The record reflects that Ms. Kimzey had since been made aware
of Ms. Clayborn's remark at the bar, and she wanted to
investigate the allegation. During that meeting, Mr. Blevins
advised Ms. Kimzey that he had apologized for the comment and
Ms. Pearson advised her that she believed his apology was
sincere. Ms. Kimzey and Mr. Blevins also told Ms. Pearson at
this time that they wanted to move her office into Suite 202
from Suite 203 so that she could focus on her duties
“because the staff in Suite 203, [plaintiff] and Magan
Brown, were not fulfilling their duties, and oftentimes, just
to not disrupt the flow of work, I would assist with those
duties and it would impact my ability to complete by own
duties.” During this conversation, Mr. Blevins told Ms.
Pearson that they were not moving her to Suite 202 because
she is black. Ms. Pearson testified that she believed that
Mr. Blevins made that comment as a way to reference their
earlier discussion that morning and that he was “trying
to make light of a, probably, tense situation.”
testified that she overheard the comment made by Mr. Blevins
about moving Ms. Pearson to a smaller office on the corporate
side. According to plaintiff, Mr. Blevins said
“Don't think I'm doing this-or what was
it-don't think you're getting the smaller office
because you're black.” Plaintiff testified that she
approached Ms. Pearson about it, who then relayed to her Mr.
Blevins' initial comment as well and the fact that the
comments made her uncomfortable. Plaintiff testified that Ms.
Pearson described the first comment as “Don't think
this is happening because you're black, or don't
think this is not happening because you're black.”
Plaintiff testified that she then reported both comments, and
the fact that Ms. Pearson was “uncomfortable”
about those comments, to Ms. Clayborn as her supervisor.
There is no evidence that plaintiff perceived that Mr.
Blevins, when making the remarks, bore any animus toward Ms.
Pearson or that he made those remarks in any manner that
could be deemed threatening or harsh. Indeed, there is no
evidence that plaintiff understood Mr. Blevins' remarks
as anything other than an arguably poor attempt at a joke-and
that he was stating that he was not discriminating against
Ms. Pearson based on her race. At some point after plaintiff
made her report to Ms. Clayborn, Ms. Clayborn told Ms. Kimzey
about plaintiff's report.
Pearson testified that, after hearing about the second
remark, Ms. Brown told her that she should sue Mr. Blevins
for mistreatment and that Ms. Clayborn continued to attempt
to convince her that Mr. Blevins was treating her differently
based on race in terms of pay and bonuses, and that she had
been hired to fill a quota. Ms. Pearson testified that she
began to worry about her job with FHH because Ms. Clayborn
was her direct supervisor who might retaliate against her
“if I did not go along with the things that she wanted
me to do.” Ms. Pearson testified that plaintiff, Ms.
Brown and Ms. Clayborn had numerous discussions with her
“three to four times a week” about Mr.
Blevins' alleged racism. She described the situation as
“difficult” and “stressful.”
end of April 2018, the employment of both plaintiff and Ms.
Clayborn had been terminated and Ms. Brown quit her
employment asserting a constructive discharge. Ms. Pearson is
still employed by SHH and/or FHH. Defendant asserts that it
terminated plaintiff's employment for attendance and
performance-related issues. Defendant contends that Ms.
Clayborn, Ms. Brown and plaintiff, after their employment had
ended, contacted current FHH employees and instructed those
employees to accept patients on the “no-take-back
list” and to take patients without doctor approval in
an effort to sabotage defendant's business. Copies of
group text messages in the record support this contention.
Plaintiff denies any wrongdoing but admits that she was
included in a group text directing a current employee to take
proprietary information from FHH. Defendant further asserts
that plaintiff, Ms. Brown and Ms. Clayborn conspired to
remove operational manuals from defendant's office and to
remove the no-take-back list and that those materials
disappeared from the office.
facts will be provided as they relate to the specific
arguments raised by the parties in their submissions.
Summary Judgment Standard
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.
legal standard does not change if the parties file
cross-motions for summary judgment. Each party has the burden
of establishing the lack of a genuine issue of material fact
and entitlement to judgment as a matter of law. Atlantic