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Fergus v. Faith Home Healthcare, Inc.

United States District Court, D. Kansas

August 14, 2019

Danielle Fergus, Plaintiff,
v.
Faith Home Healthcare, Inc., Defendant.

          MEMORANDUM & ORDER

          JOHN W. LUNGSTRUM, UNITED STATES DISTRICT JUDGE

         Plaintiff 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 trial.[1]

         I. Facts

         The 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.[2]

         Plaintiff 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.

         Plaintiff's 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).

         In 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.[3] After Mr. Blevins left Ms. Pearson's office, Ms. Brown approached her and asked her about the comment.

         What 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 jest.

         On 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.”

         Later that same morning, Mr. Blevins and Ms. Kimzey asked Ms. Pearson to come over to Mr. Blevins' office in Suite 202.[4] 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.”

         Plaintiff 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.

         Ms. 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.”

         By the 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.

         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.

         The 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 ...


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