Opinion
Civil Action 00-D-686-E
April 4, 2001
Richard J. Stockham, III, Stockham Stockham, for plaintiff.
Richard C. "Mike" Brock, Rushton, Stakley Johnston Garrett, for defendant.
MEMORANDUM OPINION AND ORDER
Before the court is Defendant Prime Healthcare Corporation's ("Defendant" or "Dadeville") Motion For Summary Judgment, which was filed February 15, 2001. Plaintiff issued a Response on March 12, 2001, and Defendant filed a Reply on March 13, 2001. The parties then submitted additional materials in response to an order of the court. After careful consideration of the arguments of counsel, the relevant law, and the record as a whole, the court finds that Defendant's Motion is due to be granted.
I. JURISDICTION AND VENUE
The court exercises subject matter jurisdiction over this action pursuant to 28 U.S.C. § 1331 (federal question jurisdiction) and 28 U.S.C. S 1367 (supplemental jurisdiction). The parties do not contest personal jurisdiction or venue.
II. SUMMARY JUDGMENT STANDARD
The court construes the evidence and makes factual inferences in the light most favorable to the nonmoving party. See Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Adickes v. S.H. Kress Co., 398 U.S. 144, 157 (1970). Summary judgment is entered only if it is shown "that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." FED. R. Civ. p. 56(c). At this juncture, the court does not "weigh the evidence and determine the truth of the matter," but solely determines whether there is more than "some metaphysical doubt" about whether there is a genuine issue for trial. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50 (1986) (citations omitted); Matsushita Elec. Indus. Corp. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).
III. INTRODUCTION
This is the final in a quartet of cases filed by separate plaintiffs represented by the same plaintiff's attorney against the same defendant represented by the same defense attorney. All three prior cases went out on summary judgment; this one will, too. In dismissing an earlier case, this court noted that Plaintiff's counsel failed to cite to the record and repeatedly made "puzzingly cryptic statement[s]" that reflected a deep misunderstanding of employment discrimination law and obfuscated the true issues presented. See Pearson v. Prime Healtheare Corp., 2000 WL 33224801 at *4 (M.D. Ala. 2000) (DeMent, J.)
The court struck Plaintiff's original Response brief, for it failed to comply with Rule 56(e) of the Federal Rules of Civil Procedure, and the orders of the court, for designating specific facts supporting Plaintiff's case. See Dinkins v. Charoen Pokphand USA, Inc., 2001 WL 237911 at *6 (M.D. Ala. 2001) (DeMent, J.) ("A blanket rendition of facts in the opening pages of a response brief must be re-designated during the argument section, lest the facts be disregarded. Shotgun pleadings are not allowed; a lawsuit is not a game of hunt the peanut.")
Plaintiff filed a new Response that properly pointed to the facts. Sadly, this 25-page brief cited to a total of four cases (two of which discussed the summary judgment standard and one was from outside the Eleventh Circuit) that helped the court in only the slightest of ways. In addition, Plaintiff's evidentiary filings rely heavily on hearsay and are rarely based on personal knowledge. Many portions of Plaintiff's declaration fall woefully short of the requirements for admissibility under Rule 56(c). See Macuba v. DeBoer, 193 F.3d 1316, 1322-25 (11th Cir. 1999) ("the out-of-court statement made to the witness (the Rule 56 (c) affiant or the deposition deponent) must be admissible at trial for some purpose."), Id. at 1323. The court will not consider inadmissible hearsay when ruling on a summary judgment motion. See Id.; Givhan v. Electronic Eng'rs, 4 F. Supp.2d 1331, 1334 (M.D. Ala. 1998).
For example, paragraph 17 of Plaintiff's declaration contains hearsay from Jan Pearson and, perhaps, double hearsay from Carol Edmondson. (Dowell Decl. ¶ 17.) Similarly, paragraph 31 contains hearsay by employee Dana Peters. (Id. ¶ 31.) The declaration also is full of conclusory statements, unsupported allegations, and expressions of opinion rather than fact.
Thus, the court plowed through the legal terrain on its own. It was an arduous task. After many hours of research and analysis, the court was unable to identify any genuine issue of material fact with respect to Plaintiff's claims of discrimination, retaliation, and breach of contract.
IV. FACTUAL BACKGROUND
There is a difference between a full-time third-shift charge nurse, apart-time third-shift charge nurse, and a full-time floating charge nurse at Dadeville Health Care. Plaintiff is a black female who took up as a part-time third-shift charge nurse at Dadeville's elderly care facility in eastern Alabama in December 1998. (Dowell Decl. ¶¶ 1-3; Chapman Aff. at 2.) The third-shift charge nurse works from 11 p.m. to 7 a.m. (Chapman New Aff. at 2.)
Molly Chapman filed two affidavits. The first was on February 15, 2001 and is attached to Defendant's Motion For Summary Judgment. (Doc. No. 6.) The second was on March 29, 2001 and is attached to Defendant's Supplemental Brief in support of its Motion For Summary Judgment. (Doc. No. 23.) The court refers to the former affidavit as "Chapman Aff 2' and the latter as "Chapman New Aff."
Dowell was offered a position as a full-time third-shift charge nurse, but she declined, stating that she had "other business interests." (Chapman Aff. at 2.) Dowell ran a child care business during the day. Over the next several months, she repeatedly turned down offers for the position of full-time third-shift charge nurse. (Id.)
In June 1999, Dadeville advertised an opening for a full-time third-shift charge nurse position. (Chapman New Aff. at 3.) Dowell "was getting tired of daycare" and decided she wanted to work full-time at Dadeville. (Dowell Decl. ¶ 5.) On June 19, 1999, Dowell spoke to Robin Baker, who was the daughter of Dadeville's director of nursing, Dale Estes. Dowell said she "was interested in taking the full-time position of charge nurse on the third shift." (Id. ¶ 9.) On June 20, Estes told Dowell that she could have the job if Carol Edmondson, the corporate nurse, agreed. Edmondson had the authority to hire Dowell. (Id. ¶ 10.) On June 21, Edmondson told Dowell that she could have the job, so long as she spoke with facility administrator Ray Jennings to complete the paperwork. That same day, Jennings told Dowell that the job was hers. (Id. ¶ 13.)
June 21 also is significant because Dowell got word that she had not been consulted about an investigation of alleged workplace misconduct by the nursing staff. Three days earlier, Dadeville hired another charge nurse (who was white) for the third-shift. The subordinates had some problems with the new charge nurse, and they were disciplined for various reasons. (Id. ¶¶ 6, 14-15.) When Dowell found out that Edmondson was looking into the problem, Dowell told Edmondson that she believed she should have been included in the investigation. Dowell said she was excluded because she is black. (Id. ¶ 16.)
Dadeville's decision to hire the new charge nurse is not the subject of this case.
Sometime during the week of June 21, 1999, Molly Chapman, who is Dadeville's President and CEO, decided to keep the third-shift charge nurse position on a part-time basis and to inform Dowell that the position "was not available on a full-time basis." (Chapman Aff. at 2.) On June 25, Edmondson told Dowell that "Chapman had decided to keep the third-shift charge nurse position part time." (Dowell Decl. ¶ 23.) Plaintiff went on workman's comp in mid-July, returned to work in September, and resigned in November. (Chapman Aff. at 4-5.)
V. DISCUSSION
At the outset, the court notes that Defendant's Motion and Plaintiff's Response somewhat narrowed the scope of issues for trial. Defendant pointed out an absence of evidence to support any of Plaintiff's three claims. Thus, the burden shifted to Plaintiff to designate specific facts illustrating a dispute for trial. Because Plaintiff's Response does not address breach of contract, the court finds that this claim has been abandoned. See Resolution Trust Corp. v. Dunmar Corp., 43 F.3d 587, 599 (11th Cir. 1995) (abandoned claims); Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1115-17 (11th Cir. 1993) (summary judgment standard).
Moreover, because Plaintiff's Response deals only with retaliation or discrimination with respect to Defendant's decision in June 1999 to keep the third-shift charge nurse position on a part-time basis, the court will not consider Plaintiff's extended discussion of events that transpired after July 2, 1999. Put another way, in accordance with the arguments set forth in the pleadings, the court finds that Plaintiff's claim of retaliation and discrimination with respect to the full-time third-shift charge nurse's position is all that is before the court. Claims of discrimination or retaliation connected with any other position are deemed abandoned. See Resolution Trust, 43 F.3d at 599; see also Chapman, 229 F.3d at 1027 (noting the "serious problem" of shotgun pleadings in civil cases and noting that "it is particularly important for the district courts to undertake the difficult, but essential task of attempting to narrow and define the issues before trial.") (quoting Morro v. City of Birmingham, 117 F.3d 508, 515 (11th Cir. 1997)).
See Reap. at 13-14 (limiting prima facie case's discussion of adverse employment action to "the denial of full-time hours" as set forth in Dowell's Declaration ¶¶ 14-15. 23.) Id. at 14.
See Resp. at 21-22 (limiting prima facie case's discussion of adverse employment action to fact that plaintiff "was given the full time charge nurse position but had it taken away from her . . ."). Id. at 22.
But despite this finding, and out of an abundance of caution, the court considers certain other acts mentioned in the pleadings. The court finds no evidence of discrimination or retaliation in those situations, either.
After this date, Plaintiff apparently declined Defendant's offer to work full-time at one of Defendant's other facilities in a different city, (Dowell Decl. ¶ 34), and was unsatisfied with Defendant's attempts to give her additional hours at Dadeville. (Id. ¶¶ 32-33.)
A. The Full-Time Third-Shift Charge Nurse Position
1. Race discrimination
The ultimate question in a discriminatory discharge case is whether the defendant acted with discriminatory intent. See Jones v. Gerwens, 874 F.2d 1534, 1539 (11th Cir. 1989). When a plaintiff relies on circumstantial evidence, as here, the McDonnell Douglas burden-shifting analysis applies. See Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248 (1981); McDonnell Douglas Core. v. Green, 411 U.S. 792 (1973).Under the McDonnell-Douglas framework, a plaintiff must first offer evidence that raises an inference of discriminatory intent. In discriminatory discharge cases, this generally requires showing that: (1) Plaintiff is a member of a protected class; (2) Plaintiff was qualified for the job from which she was discharged; (3) Plaintiff was discharged in fact; and (4) that her former position was filled by someone not in the protected class, or that she was terminated while others with comparable or lesser qualifications were not, or that she was treated differently from similarly-situated employees. See Moore v. Alabama, 989 F. Supp. 1412, 1417-19 (M.D. Ala. 1997), aff'd, 178 F.3d 1303 (11th Cir. 1999) (table); Givhan, 4 F. Supp.2d at 1338.
The prima facie case is what the judiciary uses to "screen" for discrimination. Like all screening devices, it may be underinclusive. Nevertheless, without such a showing, the plaintiff's case fails as a matter of law. See Anderson v. Twitchell-A Tyco Int'l Ltd., 76 F. Supp.2d 1279, 1287 n. 9 (M.D. Ala. 1999); Coco v. Elmwood Care, Inc., 128 F.3d 1177, 1180 (7th Cir. 1997) (Posner, C.J.) (failure to establish a prima facie case "is the end of your case if McDonnell Douglas is all that you have to go on.")
If the plaintiff carries her burden, then the defendant must proffer a legitimate, non-discriminatory reason for the adverse employment action. The employer's burden is "exceedingly light." Meeks v. Computer Assoc. Int'l, 15 F.3d 1013, 1019 (11th Cir. 1994). The burden then shifts back to the plaintiff, who must show that the employer's proffered reasons are a pretextual cover for discrimination. See Combs v. Plantation Patterns, 106 F.3d 1519, 1539 (11th Cir. 1997).
If the employee does not offer sufficient evidence showing that each and every proffered reason is pretextual, then summary judgment is mandatory. See Chapman v. Al Transp., 229 F.3d 1012, 1037 (11th Cir. 2000) (en banc) (citing Combs, 106 F.3d at 1543). If the employee meets this burden, however, then summary judgment is generally inappropriate,see id. at 1025 n. 11, and the trier of fact may then infer the ultimate fact of discrimination from the plaintiff's circumstantial evidence and the falsity of the employer's explanation. See Reeves v. Sanderson Plumbing Prods., 530 U.S. 133, 120 S.Ct. 2097, 2108-09 (2000).
i. Plaintiff cannot establish a prima fade case because she was not qualified for the job, she suffered no adverse employment action, and the position was never filled.The court finds that Plaintiff has failed to raise an inference of race discrimination. Although Plaintiff has proffered evidence that she was hired and then terminated as a full-time third-shift charge nurse, her claim that the position was subsequently "filled by two white employees, Sims and Peters," (Resp. at 22), is not supported by the evidence.
To support her allegation that she was replaced by white workers, Plaintiff refers the court to paragraphs 23 and 33 her declaration. (Id.) Those materials, however, show that the full-time third-shift nursing position was never filled. Paragraph 23 says that Chapman "told [Plaintiff] that she had decided to keep the job as a part time position . . . . She said she had hired two part time charge nurses to do the third shift charge nurse job." (Dowell Decl. ¶ 23.) Chapman confirms that she never hired anybody as a full-time third-shift charge nurse. (Chapman Aff. at 2; Chapman New Aff. at 3.)
Paragraph 33 of the declaration also fails to help Plaintiff's cause. This paragraph discusses Dadeville's work schedule for June 7 to July 18. (Dowell Decl. Ex. 2.) Plaintiff's declaration implies that, because Sims worked various hours during the third shift, she must necessarily have been hired as a full-time third-shift nurse. (Dowell Decl. ¶ 33.) But Dowell's conclusory assertion that Sims was a full-time nurse does not make it so. Self-serving declarations do not create a factual dispute, and an employer may not recast an employer's business decisions in an attempt to avoid summary judgment. See Chapman, 229 F.3d at 1030 n. 19. While Plaintiff needs to present actual evidence of the facts as she perceives them, all she has done is point the court to a work schedule and declare that Sims is a full-time employee because (the best the court can tell) Sims worked a total of eleven days from July 2 until July 18. (Dowell Decl. ¶ 33.)
The court should not have to point out that the schedule does not speak for itself. (Dowell Decl. Ex. 2.) In the row labeled "D. Sims," the schedule lists the number 7 and the number 3 twice during the week of June 28 to July 4. Then, it lists the number 11 three times and the number 3 twice during the week of July 5 to July 11. Finally, it lists the number 7 once and the number 3 twice during the week of July 12 to July 18. (Id.) The schedule does not explain what these numbers mean. In her Response brief, Plaintiff's attorney writes, "third shift is designated by 11; second shift is 3; first shift is 7." (Resp. at 15.) But the pleadings are not evidence, and so the court has no idea if this is true. The court cannot speculate on this fact, either. See Bowden v. Wal-Mart Stores, Inc., 124 F. Supp.2d 1228, 1236 (M.D. Ala. 2000) (pleadings are not evidence).
Furthermore, even assuming that the numbers mean what counsel says, then the record reflects that Sims worked only three days during two of the weeks listed. Moreover, although Sims worked a total of eleven days in June and July, she worked the third shift only three times. (Dowell Decl. Ex. 2.) Chapman's undisputed affidavit makes clear that an employee is full time only if she "works 35 hours or more per week at Prime Healthcare." (Chapman New Aff. at 1.) In addition, there is no evidence that an employee like Sims can be a full-time third-shift charge nurse, yet work on the first- or second-shift 73% of the time. Therefore, the court cannot find that Sims is a fulltime third-shift employee, or even a full-time employee. See Matsushita, 475 U.S. at 586 (metaphysical doubt).
Peters was not a full-time third-shift charge nurse, either. The record, stripped as it must be of Plaintiff's counsel's unsupported assertions, reflects as follows: Defendant advertised a vacancy for afull-time third-shift charge nurse. Dowell, who is black, and Peters, who is white, both applied. (Chapman New Aff. at 3.) Chapman hired Peters on June 18, not as a third-shift nurse, but as a floating nurse, pending receipt of Peters's nursing boards scores. (Chapman Aff. at 3.) Edmondson or Jennings told Dowell on June 20 or 21 that she was hired as a full-time third-shift charge nurse. (Dowell Decl. ¶¶ 10-13.) Some time during the week of June 21, however, Chapman decided not to hire a full-time third-shift charge nurse. Rather, she kept the third-shift position part-time. (Chapman Aff. at 2.) On June 25, Edmondson informed Plaintiff of Chapman's decision. (Dowell Decl. ¶ 23.)
Peters was never hired as a full-time third-shift charge nurse. "Initially, she was told that she was hired for the fulltime third-shift charge nurse position," Chapman says. "However, [b]ecause of Peters' flexibility, and my decision not to fill the third-shift position with a full-time nurse, Dana Peters was told that the full-time third-shift charge nurse position did not exist." (Chapman New Aff. at 3) (emphasis supplied). "Ms. Peters began employment on June 28th as a floating charge nurse, working all shifts." (Id.) (emphasis supplied). Plaintiff never deposed Chapman or Peters, and so there is no dispute that Peters was told she was hired as a third-shift nurse, but was actually hired as afloating nurse. Dowell's declaration fails to create a factual dispute as to whether the full-time position was ever filled. On the other hand, Chapman's affidavit makes clear that the position was never filled. (Id. Chapman Aff. at 5.) Nor did Dadeville continue to search for a full-time third-shift nurse during Dowell's tenure of employment. (Chapman Aff. at 5.)
As a fallback argument, Plaintiff contends that Chapman's decision to advertise a full-time third-shift charge nurse position, and then to hire Peters as a full-time floating nurse, is sufficient evidence to establish a prima facie case. (Resp. at 23.) This argument, too fails.
It is true, of course, that an employer who does not post openings for vacant positions must "`consider all those who might reasonably be interested, as well as those who have learned of the job opening and expressed an interest.'" Morris v. Wallace Comm'y Coll. -Selma, 125 F. Supp.2d 1315. 1329 (S.D. Ala. 2001) (quoting Carmichael v. Birmingham Saw Works, 738 F.2d 1126, 1133 (11th Cir. 1984)). That is exactly what Chapman did.
Chapman's affidavit makes clear that she considered Dowell and Peters for the floating position and hired Peters because "her schedule was more flexible than Kay Dowell's because she didn't have other commitments during the day." (Chapman New Aff. at 4.) Chapman could not have preferred Peters over Dowell unless Chapman considered Dowell as a candidate in the first place. (Id. at 3-4.) Plaintiff points to absolutely no evidence contradicting this fact. Furthermore, as explainedinfra at 23-25, Plaintiff proffers no evidence that she was qualified for a full-time floating position. Her hours were too inflexible. Cf.McDonnell Douglas, 411 U.S. at 802; Jones v. Firestone Tire Rubber Co., 977 F.2d 527, 533 (11th Cir. 1992) (plaintiff "must show that he was qualified for the position in order to make out a prima facie case of discrimination" and that employer continued to seek to fill the position with persons having "qualifications similar to plaintiffs") (emphasis in original); Worley v. Western Elec. Co., 1981 WL 324 at *14 (N.D. Ga. 1981) ("[a] necessary element of the plaintiffs' initial burden of proof is evidence that they were qualified for the jobs they sought.")
This case is analogous to Blalock v. Dale County Bd. of Educ., 84 F. Supp.2d 1291, 1309-11 (M.D. Ala. 1999), where the court found that the plaintiff suffered no adverse employment action when the school board changed its mind soon after transferring the plaintiff to a different job. Although Blalock involved a transfer and Dowell complains about hiring, the key fact is that Dadeville changed its mind about employing a fulltime charge nurse, just like the school board changed its mind about a transfer. There is not a whit of evidence that Dowell ever worked one day, not even for a second, as a full-time thirdshift charge nurse. If the job is not available, then Title VII is not implicated. For these and other reasons, the court finds that Plaintiff has failed to raise an inference of discrimination, and no rational jury could rule in her favor. See Matsushita, 475 U.S. at 586 (metaphysical doubt); see also Lee v. GTE Fla., Inc., 226 F.3d 1249, 1255 n. 2 (11th Cir. 2000) (employer's knowledge of aggrieved employee's qualifications negates need to question employee on the same).
ii. Plaintiff has produced insufficient evidence of pretext because Chapman's statements are consistent, federal courts are not super-personnel boards, Plaintiff was not qualified for the job, and Dadeville's handbook was not enforced with discriminatory intent.Even assuming that Plaintiff has established a prima facie case — and she has not — the court finds that she has not rebutted Dadeville's race-neutral reasons for discharging Dowell and hiring Peters. Dadeville proffers that it did so because Peters' hours were more flexible, that Peters could work floating shifts, and that a full-time charge nurse limited strictly to the third-shift was inconsistent with Chapman's business plan to cut costs by staffing more positions part-time. Chapman intended to eventually close Dadeville because it was the company's smallest facility and the most expensive to operate. (Chapman Aff. at 3.)
The court finds that these reasons are all legitimate. The burden, therefore, shifts to Plaintiff to show that these reasons are pretextual. See Meeks, 15 F.3d at 1019. This she has not done.
Initially, the court rejects Plaintiff's attempt to discredit Chapman's testimony by alleging that Chapman has offered inconsistent reasons for her decision. (Resp. at 15; Doc. No. 26 at 2.) Plaintiff's evidence of allegedly inconsistent statements is comprised of the following: (1) Chapman told Edmondson that she was going to keep the third-shift charge nurse position part-time, (Chapman Aff. at 2); (2) and Chapman says that Peters applied for a position which was advertised as a full-time third-shift charge nurse position, but was hired as a floating nurse because she was willing to work all shifts, (Chapman New Aff. at 3); and (3) Chapman told Dowell that Dadeville hired two part-time charge nurses for the third-shift position. (Dowell Decl. ¶ 23; Resp. at 15; Doc. No. 26 at 2.)
The court cannot see how these statements are inconsistent. There is no inherent conflict in that Chapman decided not to hire a full-time person for the third shift, to hire two part-time people for the position, and to hire Peters for a full-time floating position rather than for the third-shift. Occasions sometimes arise when Dadeville needs nurses to float. (Chapman New Aff. at 2.) Given Dadeville's new business plan and cost-cutting measures, it is entirely reasonable that it wanted to have fewer non-flexible full-time employees and more part-time employees. Part-time employees were cheaper labor; they received no benefits. (Chapman Aff. at 3; Chapman New Aff. at 1-2.)
Summary judgment may be inappropriate when an employer's reasons are at war with one other, see Wisdom v. M.A. Hanna Co., 978 F. Supp. 1471, 1480 (N.D. Ga. 1997) (discussing Howard v. BP Oil Co., 32 F.3d 520, 526-27 (11th Cir. 1994)), or when an employer proffers one reason, then completely abandons it for another one, see Stallworth v. E-Z Serve Convenience Stores, Inc., 2001 WL 125304 at *5 (M.D. Ala. 2001) (discussing Bechtel Constr. Co. v. Secretary of Labor, 50 F.3d 926, 935 (11th Cir. 1995)). But "Unemployment law is not a game of "Gotcha!'s and an employer's differing statements are not necessarily and automatically inconsistent." Id. The court finds no evidence of pretext here. See Tidwell v. Carter Prods., 135 F.3d 1422, 1428 (11th Cir. 1998) (holding that employer's reasons that build upon each other but are not plainly contradictory are legitimate).
Plaintiff then quibbles with Dadeville's business judgment by asserting "the hiring of Peters was not a legitimate reason to take the full time third shift charge nurse position from Dowell." (Resp. at 15-16.) Plaintiff also believes that Dadeville should not have hired Sims because, without Sims on staff, there would have been more hours for Dowell on the third shift. (Id. at 15.) Plaintiff relies heavily on her reading of the time cards for her argument. (Id.) (citing Dowell Decl. Ex. 2.)
As noted previously, counsel's statements do not substitute for evidence, and there is no evidentiary showing as to what the numbers on the time cards mean. Even assuming that Chapman hired Sims to work a couple third shifts (27% of the time she was on the clock), (Id.), courts "`do not second-guess the business judgment of employers.'" Chapman, 229 F.3d at 1030 (quoting Combs, 106 F.3d at 1543). Chapman states that Dadeville was in its dying days. She believed the company was better served through the use of part-time employees and flexible full-time employees. (Chapman Aff. at 3, Chapman New Aff. at 3-4.) Dowell tries to argue that Dadeville was not really winding up. because if Chapman "had really determined to reduce costs in June 1999 then she would have been laying off nurses or moving some to part-time status." (Resp. at 18-19.) But this goes beyond all reason.
The undisputed evidence is that Dadeville was the smallest and most expensive facility in the chain. (Chapman Aff. at 3; Chapman New Aff. at 3-4.) The court recognizes that a plaintiff can sometimes meet her burden of showing that a claim of downsizing is pretextual. But this Plaintiff has not done so. The court finds no evidence that Chapman's business plan was not cost-saving. Indeed, consistent with Chapman's statements of intent in June 1999, Dadeville closed in April/May 2000 and its residents were sent to other facilities. (Chapman Aff. at 1.) Chapman's reason was not a sham. See Wallace v. SMC Pneumatics, Inc., 103 F.3d 1394, 1397 (7th Cir. 1997) (Posner, C.J.) (holding for employer when employee's "services were no longer required" and "he was not replaced."); Malone v. Greco, 1995 WL 222052 at *7 (WD.N.Y. 1995) (finding no evidence of pretext when plaintiff failed to show that downsizing plan was not cost-effective).
The market is a jungle. As Arthur Miller's fictional character, Willie Loman, recognized many years ago, an employer can have an employee who is a round peg, and try to jam her into a square hole, and then throw the peg away when it doesn't fit. An employer need never justify the wisdom of her business decisions to a disgruntled employee. See Stone v. Galaxy Carpet Mills, Inc., 841 F. Supp. 1181, 1187 (N.D. Ga. 1993) ("an employer need not expatiate at length its reasons for an employment decision . . . in order to avoid later Title VII liability.")
Even if Chapman's business judgment was wholly incorrect, "(am employer may fire an employee for a good reason, a bad reason, a reason based on erroneous facts, or for no reason at all, as long as its action is not a discriminatory reason." Chapman, 229 F.3d at 1030. After all, "an employer who treats two employees differently because of a mistaken belief in the existence of a neutral reason does not violate Title VII."Silvera v. Orange County Sch. Bd., ___ F.3d ___, 2001 WL 273853 at *6 (11th Cir. 2001). Plaintiff simply has not shown that Dadeville's reasons were a pretextual cover for discrimination. See Thurman v. Robertshaw Control Co., 869 F. Supp. 934, 940 (N.D. Ga. 1994) ("[t]he fact that [employee's] duties were divided among two younger employees does not, in and of itself, detract from the veracity of the defendant's proffered reason.")
Because a mistaken belief in a neutral reason can defeat any inference of discrimination, Plaintiff's attempt to prove pretext by contending that she was more qualified than Peters goes nowhere. Federal courts are not super-personnel boards, and "Title VII does not require any employer to promote the most qualified applicant." Smith v. Horner, 839 F.2d 1530, 1538 (11th Cir. 1988). Even if Plaintiff was more qualified, "disparities in qualifications are not enough in and of themselves to demonstrate discriminatory intent unless those disparities are so apparent as virtually to jump off the page and slap you in the face." Lee, 226 F.3d at 1253-54. The court finds no such disparity here.
Plaintiff's claim that she was just as flexible in her time schedule as Peters also fails. (Doc. No. 26 at 2-3.) Plaintiff argues that this fact "was not known even known [sic] to Chapman when she sent word to Dowell that she would not be getting hired full-time of [sic] Friday June 25th 1999." (Id. at 2.) Obviously, an employer who does not know that two employees are equally flexible cannot be penalized for preferring the employee believed to be more flexible. See Silvera, supra at *6. Moreover, Plaintiff's claim is jejune. Plaintiff cites to paragraph 27 of her declaration to support her argument. (Doc. No. 26 at 2.) The declaration states that Plaintiff informed nursing director Estes, on July 2, about the times and days of the week when she was available for full-time work. (Dowell Decl. ¶ 27.) Dowell declares that: she preferred to work Monday through Friday, preferred to work the third-shift but would take some second shifts, and would work "some weekends" but that she "did not want to work every weekend." (Id.) There is no evidence that Dowell's schedule was any different around June 18, and the court will not speculate that it was. See Bowden, 124 F. Supp.2d at 1236.
The court finds that such evidence, on its own terms, shows that Dowell was not as flexible as Peters in her work schedule, when Chapman decided to hire Peters. Dowell clearly stated that she would not work some weekends, and she did not tell Dadeville that she would take any hours on the first shift. Peters, on the other hand, affirmatively stated that she was willing to work all three shifts, without any limitations of any type. (Doc. No. 23 Ex. 1 at 2; Chapman New Aff. at 3-4.) Plaintiff, therefore, cannot show pretext with her false claim of equal flexibility. See Denney v. City of Albany, 247 F.3d 1172 (11th Cir. 2001) (upholding summary judgment because "[n]ot only do Plaintiffs fail to acknowledge this case law, which makes clear that they ultimately must do more to show pretext than prove that they are better qualified . . . but they also fail to mount a persuasive showing that they are, in fact, better qualified.")
Dowell states that she never said that she would not work the first shift, but she never said that she would, either. (Dowell Decl. ¶ 27.)
That leaves the court with Plaintiff's final attempt to prove pretext by claiming that Dadeville deviated from its policy manual when it hired Peters. (Resp. at 16-18.) Much of this argument is based on speculation and fantasy rather than fact. The rest fails as a matter of law.
There is no evidence that director of nursing Estes and administrator Jennings did not interview Peters, or that an interview was even required. (Resp. at 16.) Nor is there evidence that Peters did not "undergo a physical examination . . . prior to reporting to work," or that Peters somehow withheld permission for background checks by Dadeville. (Policy Handbook, Pl. Ex. 3 at 7.) Nor is there any evidence contradicting Chapman's statement that she hired Peters on June 18. (Chapman Aff. at 3.) Plaintiff's counsel would not have to resort to unfounded speculation on these matters if he had deposed the relevant witnesses.
Plaintiff's argument relies heavily on the fact that Chapman hired Peters "pending results of her nursing boards." (Chapman Aff. at 3.) Plaintiff then speculates that Chapman hired Peters before receiving her nursing license. Dadeville's policy handbook, however, states that "[l]icensed personnel employed, whether full or part-time, shall be required to present their license at least annually and at the time of employment." (Policy Handbook, Pl. Ex. 3, Part III.A.5 p. 7.)
The court notes, again, that Plaintiff provides no evidence showing that one cannot be licensed before one passes her boards. Nor does Plaintiff explain why she reads the policy as requiring presentment of the license on the date of hire (which would be June 18), rather than on the first day of work (which would be June 28). Any one these issues should have been cleared up during the discovery process. The court reiterates that it is not a super-personnel board, see Chapman, 229 F.3d at 1030, and the court will not speculate on facts not in evidence.
But even if Plaintiff cleared this hurdle — which she has not — she has not presented a shred of evidence that the company deviated from its policy manual with discriminatory intent. "Neither sections 1981 and 1983 nor Title VII makes an employer liable for simply erroneous or arbitrary decisions." Friedel v. City of Madison, 832 F.2d 965, 973 (7th Cir. 1987). Thus, deviation from a company policy does not establish pretextual behavior. Rather, the plaintiff must show that the policy was disparately enforced with retaliatory or discriminatory animus. See Mitchell v. USBI Co., 186 F.3d 1352, 1355-56 (11th Cir. 1999).
In this case, like in Berg v. Florida Dep't of Labor Emp't Sec., 163 F.3d 1251, 1255 (11th Cir. 1998), Plaintiff has merely proffered her belief that Dadeville did not apply its own policies "correctly" when it hired Peters. This may or may not be true; there is no evidence either way. However, as the Berg Court noted in upholding the administrative law judge's finding for DVR (the employer), Plaintiff must show, at minimum, that the policy was enforced in the first place. This is not a self-proving fact. In finding against employee Berg, the Court stated:
Berg, however, failed to show that the policies at issue were ever applied to other DVR clients (although obviously they must have been), let alone applied in an inconsistent fashion. Thus, the fact that DVR may have failed to follow its own policies in Berg's case cannot serve as the basis for an inference of intentional discrimination.Id. (emphasis supplied).
Put another way, the issue is not whether the employer misapplied the policy. The issue is whether Plaintiff has offered specific facts showing that the employer misapplied the policy in a disparate manner with an invidious intent. See Mitchell, 186 F.3d at 1356 (collecting cases); EEOC v. Texas Instruments, Inc., 100 F.3d 1173, 1182-83 (5th Cir. 1996);Friedel, 832 F.2d at 973-74. The court finds that Plaintiff has proffered no evidence that Dadeville strayed from the language of its personnel policies for any nefarious purpose.
Although Plaintiff's pleadings are of the shotgun variety, the court has waded through them and carefully considered all of her remaining arguments. The court finds that Plaintiff has failed to cast doubt on any of Dadeville's race-neutral reasons for its decision not to keep Dowell in a full-time third-shift charge nurse position and to hire Peters as a full-time floating nurse. Summary judgment will be entered accordingly.
2. Retaliation
The court now turns to Plaintiff's claim of retaliation and finds that Plaintiff has failed to raise doubts about Dadeville's race-neutral reasons for giving the job to Peters. The court applies the same burden-shifting framework set forth above, and finds that Defendant's Motion For Summary Judgment is due to be granted.
i. Plaintiff cannot establish a prima facie case because Chapman gave the nurse's position to Peters before Chapman knew of Plaintiff's comments to Edmondson and others.A prima facie case of retaliation requires evidence that: (1) Plaintiff engaged in a statutorily protected activity; (2) Plaintiff suffered an adverse employment action; and (3) some causal connection exists between the two events. See Pearson, 2000 WL 33224801 at *5; Morgan v. Alabama, 5 F. Supp.2d 1285, 1297 (M.D. Ala. 1998). The court finds that Plaintiff has failed raise an inference of retaliation because she has not shown a causal connection between her statements and the loss of the full-time third-shift nurse position.
"In order to satisfy the "causal link' prong of a prima facie retaliation case, a plaintiff must, at a minimum, generally establish that the defendant was actually aware of the protected expression at the time the defendant took the adverse employment action. Since corporate defendants act only through authorized agents, in a case involving a corporate defendant the plaintiff must show that the corporate agent who took the adverse action was aware of the plaintiff's protected expression and acted within the scope of his or her agency when taking the action."Snel\grove v. Teldyne Abbeville, 117 F. Supp.2d 1218, 1238-39 n. 19 (M.D. Ala. 2000) (quoting Raney v. Vinson Guard Serv., Inc., 120 F.3d 1192, 1197 (11th Cir. 1997)).
The employer must complain of discrimination, not about unfairness and the like. See Id.; Pearson, 2000 WL 33224801 at *6 (finding no evidence of retaliation because, among other things, employee merely told mid-level supervisor that she felt supervisor was being "unfair.");Velasauez v. Goldwater Mem'l Hosp., 88 F. Supp.2d 257, 264 (S.D.N.Y. 2000) (finding that employee's statement that "[m]y understanding is that you hire[d] me because I can communicate in Spanish with Spanish speaking patients who cannot communicate in English," was not protected protest of national origin discrimination).
Plaintiff claims to have shown a causal connection by alleging as follows: (1) Dowell was given the position on June 21; (2) Dowell told corporate nurse Edmondson on June 21 that Dowell felt she was excluded from an investigation of third-shift insubordination because Dowell was black; and (3) Dowell lost the job on June 25. (Resp. at 13-14; Dowell Decl. ¶¶ 11-15, 23.)
Plaintiff's argument makes numerous inferential leaps that are unsupported by the evidence. Plaintiff cites to nothing to show that Edmondson had the authority to take the third-shift position away from Plaintiff. Plaintiff's declaration establishes, at most, that Jennings and Edmondson may have hired Plaintiff. (Dowell Decl. ¶ 11-13, 25.) But the declaration and Chapman's affidavit both make clear that it was Chapman — not Edmondson — who made the decision to convert the third-shift position into a floating one, and give the job to Peters. (Id. ¶ 23; Chapman Aff. at 2; New Aff. at 3.) Dowell's declaration shows that she spoke to Chapman on July 1, when she related her perceived victimization. (Dowell Decl. ¶ 23.) There is no evidence that Edmondson related Dowell's statements to Chapman, or that Chapman otherwise knew about Dowell's feelings prior to July 1.
Plaintiff does not argue that this is a case of "cat's paw" liability. There is no evidence to support such a claim, either, for nothing suggests that Chapman ever discussed her business plans with Edmondson, Estes, Jennings, or anybody else.
Plaintiff references some newspaper articles discussing a protest march in mid-July. (Pl. Ex. 4-5.) These articles are irrelevant, coming well after the relevant time period.
Based on this and other evidence, the court finds that Plaintiff has not shown a causal connection between her protected activity on June 21 and her adverse employment action on June 25. See Snelgrove, 117 F. Supp.2d at 1238; Webb v. R B Holding Co., 992 F. Supp. 1382, 1389 (S.D. Fla. 1998) (employee cannot merely "rely on the employer to infer that discrimination has occurred.") Moreover, even if Plaintiff has established a prima facie case, the court finds, as it has found with Plaintiff's claim of race discrimination, that Dadeville has proffered legitimate, neutral reasons for its decision. Plaintiff has not cast doubt on those reasons. Summary judgment will be entered accordingly.
B. Other Workplace Occurrences
As noted earlier, the only issue preserved by Plaintiff in her Response was whether she was the victim of retaliation or discrimination in June 1999 with respect to the third-shift charge nurse position. See Chapman, 229 F.3d at 1027. But still, the court applies the McDonnell Douglas analysis and rejects Plaintiff's other possible complaints in this Subpart.
First, the court rejects the notion that Defendant's failure to include Plaintiff in its investigation of misconduct on the third-shift subjects Defendant to liability. Such a trivial employment action does not come close to being actionable under federal law. The Supreme Court has held that a tangible employment action is a "significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits." Dinkins, 2001. WL 237911 at *8 (quotingBurlington Indus., Inc. v. Ellerth, 524 U.S. 742, 761 (1998)). The court finds that exclusion from an internal investigation is not a tangible employment action. See Malone v. K-Mart Corp., 51. F. Supp.2d 1287, 1308 (M.D. Ala. 1999) (no adverse action when employer ignored employee);Hanley v. Sports Auth., 120 F. Supp.2d 1353, 1368 (S.D. Fla. 2000) (same when supervisor yelled at employee and told her to "shut up").
Second, the court finds nothing to support Plaintiff's unfounded allegation that Dadeville engaged in disparate treatment because it supposedly did not try to give Plaintiff full-time hours. Plaintiff disputes Chapman's statement that Estes was told to try finding more time on the schedule for Plaintiff to work. Plaintiff believes that Chapman was lying because some other employees wound up getting more hours than Plaintiff did. Because Dadeville's efforts didn't satisfy Plaintiff, she complains of discrimination and retaliation. (Resp. at 19.) Plaintiff also takes umbrage at Dadeville's efforts to give Plaintiff a full-time position at one of its larger, more viable facilities in another town equidistant from Plaintiff's home. (Id. at 20.; Chapman Aff. at 3-4.)
The court first focuses on Plaintiff's gripes about scheduling during June and July 1999. The first problem with Plaintiff's argument is that she depends on her interpretation of the work schedule to support it. (Dowell Decl. ¶¶ 32-33.) At the risk of being repetitive, the work schedule is unintelligible. Even if it constitutes evidence, the schedule shows that Dowell worked eleven days between June 7 and July 2. Between July 2 (which is the day when director of nursing Estes approached Dowell about additional hours) and July 18. Dowell was scheduled to work seven days. Put another way, Dowell worked 11/25 days before July 2 and 7/16 days after July 2, despite Dadeville's hiring of additional part-time employees during that same period. (Dowell Decl. Ex. 2; Chapman Aff. at 3.) It is difficult to see how Dadeville was not attempting to accommodate Dowell's needs. See Riley v. Technical Mg't Serv. Corp, 872 F. Supp. 1454. 1461 (D. Md. 1995) (finding no evidence of pretext when employer attempted to give employee more hours).
Moreover, Plaintiff's Title VII claims fail with respect to: (1) the hours at Dadeville; and (2) Defendant's offer of fulltime work at another facility. Plaintiff was a part-time employee. Dadeville went out of its way to find her full-time hours, (Chapman Aff. at 3), even though it had no absolutely legal duty to rearrange the work schedule to accommodate her. The positions were not open to begin with, they were not filled by similarly-situated white employees, and there is no evidence that they were held open while Dadeville looked for other candidates. Plaintiff is not entitled to extra work just because she wants it. There is no prima facie case of unlawful behavior here, for there was no adverse employment action in the first place. See Ercegovich v. Goodyear Tire Rubber Co., 154 F.3d 344, 351 (6th Cir. 1998) ("an employer is under no obligation to transfer to another position in the company . . . an employee."); see also Pennington v. City of Huntsville, 93 F. Supp.2d 1201, 1220 (N.D. Ala. 2000) (no adverse employment action when employee claimed "that he had not been offered a promotion sooner and that the promotion came about only because the plaintiff had confronted his superior.")
The court declines Plaintiff's invitation to establish a rule of law that "no good deed goes unpunished."
The truth is, Plaintiff received roughly the same number of hours throughout her entire tenure at Dadeville — even after the July 2 meeting with Estes. (Dowell Decl. Ex. 2.) Plaintiff speculates that Dadeville didn't try hard enough to find her additional work. But she does not even point to a single other employee at Dadeville, who was approached with a charitable offer of accommodation, if possible. Nor does she ever identify anybody who was given better treatment if he or she had been so approached. She certainly points to no similarly-situated comparators after Dadeville began its shift away from full-time employees and towards its death — and that is the most relevant time period of all. See Chapman, 229 F.3d at 1033 n. 24 (holding that courts must focus only on the time period proffered by the employer as relevant to the employer's decision). Plaintiff may not have been happy with the hours she got, but Title VII speaks nothing to workplace fairness. Summary judgment is due to be granted. See Wright v. Department of Corr., 31 F. Supp.2d 1336, 1342-44 (M.D. Ala. 1998) (granting summary judgment on claim involving work assignments); Pennington, 93 F. Supp.2d at 1220; Murphy v. Yellow Freight Sys., Inc., 832 F. Supp. 1543, 1550-51 (N.D. Ga. 1993)
Plaintiff states: "Peters would have been the appropriate one for that transfer since under the Handbook job transfers were governed by seniority and plaintiff had much more seniority than Peters." (Doc. No. 26 at 3.) As explained previously, this argument is doomed, for Plaintiff put forth no evidence that the policy was wielded in a pretextual manner.See Berg, 163 F.3d at 1254.
Plaintiff's final argument regarding the actions discussed in this Subpart is that she has shown retaliation because Estes "wrote every thing [sic] down about offering me full time hours . . . then had me sign off on that after she had written it down." (Dowell Decl. ¶ 29.) "This was very out of the ordinary," Plaintiff says. (Id.) Therefore, she citesHairston v. Gainesville Sun Publ's Co., 9 F.3d 913, 921 (11th Cir. 1994), and contends that she has shown that Dadeville was merely pretending to be offering to accommodate her scheduling dilemma. In reality, she contends, Dadeville was just creating a paper trail as part of some plot against her. (Reap. at 20.)
The court disagrees. First, as noted earlier, Plaintiff suffered no adverse employment action. She never had the extra hours or the other position, and Dadeville did not have to do anything to change this fact.See Wright, 31 F. Supp.2d at 1342-44. Second, Plaintiff was in no way subjected to increased scrutiny as defined in Hairston. The employee in Hairston was an award-winning sports writer, who enjoyed complete workplace autonomy before he filed an EEOC complaint. See 9 F.3d at 917-18. After that point, the paper's new editors made statements that they planned to fire him, See id. at 917, imposed several new restrictions on his journalistic freedom, see id. at 918, and slapped him with numerous unfavorable performance evaluations, see id. at 921.
The court notes that Hairston's discussion about how "increased scrutiny" might be evidence of a pretextual basis for discipline is dicta. The Court reversed the district court's grant of summary judgment on the issue of causation, see 9 F.3d at 920, and the remainder of the opinion was outside of the court's holding.
Moreover, Hairston's statements that "summary judgment . . . is generally unsuitable in Title VII cases in which the plaintiff has established a prima facie case" and that "sufficiency of the evidence [is] properly reserved for the jury" appears to have been abrogated by the en banc decision in Chapman. Chapman teaches that the employee must meet the employer's proffered race-neutral reasons "head on" and rebut them, see 229 F.3d at 1030, and that some attempts to prove pretext are insufficient as a matter of law, see id. at 1024-37.
In this case, by stark contrast, Plaintiff suffered no tangible employment action after registering her complaints. Dadeville made no statements about impending retaliation. Dadeville did nothing to interfere with Plaintiff's daily work routine. Admittedly, around June 21, 1999, a new charge nurse wrote a memorandum stating that Plaintiff had left medicine cabinets unlocked, turned up the heater too high, neglected other work duties, and raised a ruckus with her fellow night-shift employees. (Dowell Decl. Ex. 1.) But the alleged misconduct took place before Plaintiff complained to Edmondson, Jennings, Estes or Chapman about her perceived victimization, not afterwards. (Dowell Decl. ¶¶ 21, 23.) Moreover, in any event, there is no evidence that Chapman knew of this documentation or ever relied on it for anything. Thus, the write-up is not evidence that Plaintiff was eyeballed with suspicion by her supervisors after her complaint. Rather, the court finds that Dadeville was merely attempting to assemble information in a prudent fashion. See Murphy, 832 F. Supp. at 1549-51; Smith v. Union Oil Co., 1977 WL 77 at *32 (N.D. Cal. 1.977); see also 1 BARBARA LINDEMANN PAUL GROSSMAN, EMPLOYMENT DISCRIMINATION LAW at 670 (3d ed. 1996) ("[g]enerally . . . the mere questioning of a charging party by a supervisor is not actionable retaliation. Nor is documenting the plaintiff's poor performance following the employee's discrimination charge.")
All in all, the record reflects that Estes made Plaintiff write down her available hours when they spoke on July 2. (Chapman Aff. Ex. 1.) But there is no evidence that Dadeville ever attempted to accommodate any other employee's idiosyncratic schedule in the past, and so there is no evidence that Dadeville had reason for writing down the employee's preferences in the past. Moreover, Plaintiff does not dispute that the dates and times written down by Estes are accurate, and so no rational jury could find that Dadeville's actions were a cover for retaliation.See Merriweather v. Alabama Dep't of Pub. Safety, 17 F. Supp.2d 1260, 1269-70 (M.D. Ala. 1998) (no violation when supervisor required employee to accompany him on a road trip to department headquarters; employee presented no evidence of comparators in similar situation who were treated differently); Pennington, 93 F. Supp.2d at 1214-15 (no adverse employment action when employer took steps to facilitate employee's transition at workplace); Dixon v. Young, 2000 WL 33224515 at *1.0 (N.D. Ga. 2000).Cf. Snellgrove, 117 F. Supp.2d at 1244 n. 24 (discussing level of substantiality to which employment actions must rise in retaliation case).
Chapman says that she told Estes to "try to work the schedule so that Kay Dowell could have full-time hours working mainly third shifts and some second shifts." (Chapman Aff. at 3.) The court finds that Estee's actions on July 2 were without racial or retaliatory intent. The court also finds that Dadeville's offer to transfer Plaintiff does not suggest racial or retaliatory ammus by the defendant. Thus, even if Plaintiff has established a prima facie case, and has attacked Dadeville's neutral reasons with "scattered pieces of circumstantial evidence," the court finds that "none of it, even taken as a whole, raises sufficient questions to undermine [the employer's] nondiscriminatory reasons." Brown v. American Honda Motor Co. 939 F.2d 946, 954 (11th Cir. 1991); see also Chapman, 229 F.3d at 1025 n. 1l (holding that plaintiff may not avoid summary judgment with an insufficient showing of pretext).
VI. CONCLUSION
One unfortunate, yet universally known consequence of our nation's otherwise salutary laws against employment discrimination is that all it takes is an aggressive employee, a complaisant lawyer, and $150 in filing fees to embroil any employer in expensive, protracted litigation. This is a case where an employer in the midst of downsizing tried its best to help out an employee who wanted to be upsized. There is no genuine dispute of material fact; Defendant's Motion For Summary judgment is due to be granted.
VII. ORDER
It is CONSIDERED and ORDERED that Defendant's Motion For Summary Judgment be and the same is hereby GRANTED. Any remaining Motions be and the same are hereby DENIED AS MOOT. The Clerk of Court shall close this case. A judgment follows.
JUDGMENT
In accordance with the attached Memorandum Opinion and Order, and pursuant to Rule 58 of the Federal Rules of Civil Procedure, it is CONSIDERED, ORDERED and ADJUDGED that summary judgment be and the same is hereby GRANTED in favor of Defendant Prime Healthcare Corporation d/b/a Dadeville Health Care, Inc., and that Plaintiff Kay Reese Dowell take nothing by her said suit.
It is further CONSIDERED and ORDERED that all coats herein incurred be and the same are hereby taxed against Plaintiff, for which let execution issue.