Opinion
Cause No. 3:03-CV-312 PS.
January 27, 2005
MEMORANDUM OPINION AND ORDER
Plaintiff, Alfonzo Stanford, a nurse, wanted a day off from work but his request for leave was denied. This led to an argument in which his supervisor specifically told him that he had to be at work the day in question. Stanford failed to show up for work anyway and as a result was fired for insubordination. Proceeding pro se, he brought this action against his former employer, Extendicare Health Facilities, Inc. ("Extendicare"), and two supervisors, Scott Mahl and Nancy Crawford, principally claiming that he was terminated based on race and gender. This matter is before the Court on the Defendant's Motion for Summary Judgment [Doc. 15]. The Defendants' filed a "Notice to Pro Se Plaintiff," pursuant to Lewis v. Faulkner, 689 F.2d 100 (7th Cir. 1982), informing the plaintiff of his duty to respond to the motion. ( See [Doc. 18].) Nevertheless, Stanford has failed to file any sort of response. For the reasons stated below, summary judgment is granted on all of Stanford's federal claims.
FACTUAL BACKGROUND
Stanford was hired on April 4, 2002, as a Licensed Practical Nurse ("LPN"). (Defendants' Mem. at 2; Stanford Dep. at 56.) Stanford was an at-will employee of Extendicare, assigned to work at the Elkhart Rehabilitation Center (the "Center"). (Mahl Aff. ¶ 2.) Stanford was supervised by Louis Crist, Assistant Director of Nursing and by Defendant Nancy Crawford, Director of Nursing. (Stanford Dep. at 57-58.)All Extendicare employees receive an Employee Handbook and sign an acknowledgment that they have read and understand the handbook. (Defendants' Mem. at 4.) The Handbook states that an employee's supervisor may deny a leave request. ( Id.; Stanford Dep. at Ex. Z.) The Handbook further states that insubordination and refusal to follow direct orders are "Class III" offenses for which employees may be immediately discharged. (Stanford Dep. at Ex. G.) Stanford signed an acknowledgment that he read and understood the terms of the Handbook. ( Id. at Ex. F.) However, Stanford alleged that it was not his understanding that he needed the approval of his supervisor to call off. ( Id. at 162.)
Disciplinary Action Resulting in Termination
Stanford received his first disciplinary action on October 4, 2002. Stanford had been absent from work five times between April and September, 2002. The Disciplinary Action Report, which was signed by Stanford, specifically stated that any further violations of work rules could subject Stanford to additional disciplinary action "including discharge." (Stanford Dep. at Ex. H.)
Less than two weeks later, push came to shove. On Friday, October 11, 2002, Stanford submitted a leave request for the following Monday — October 14, 2002. (Stanford Dep. at Ex. U3.) Stanford attempted to approve his own call-off by signing the slip as "Charge Nurse." ( Id.) On this slip, Stanford gave his reason for calling off as "inadequate staff and follow through on same." ( Id.) Stanford was evidently not coming to work in protest of what he viewed as inadequate staffing of the Center. On October 13, 2002, Stanford received a phone call from the Director of Nursing, Nancy Crawford, informing him that his leave request for October 14, 2002 had been denied and that he needed to report to work on that day. (Stanford Aff. ¶ 8.) Crawford also informed Stanford that a failure to report for work would result in his termination. ( Id.) Stanford openly questioned Crawford's authority and her ability to deny his leave request. As the call concluded, Stanford raised his voice to Crawford and stated, "I'm not coming in to work. Goodbye." ( Id.) As soon as the call terminated, Crawford notified the Center's administrator of her conversation with Stanford and of his intent to be absent from work the next day. (Stanford Dep. at Ex. V.) Crawford then documented the details of her conversation with Stanford. ( Id.)
Stanford did not report to work on Monday, October 14, 2002. (Stanford Dep. at 72.) As a result, Crawford completed a disciplinary report and terminated Stanford's employment. (Defendants' Mem. at 5). Stanford was terminated for insubordination, refusal to follow a direct order, and specifically for not reporting for duty at the Center on October 14, 2002, in contravention of Crawford's direct order. ( Id.)
Allegations Relating to Similarly Situated Employees
Stanford alleges that three other employees were treated more favorably due to their respective race and gender. (Stanford Dep. at 140.) These three employees are Joetta Thorton, Antonia Taylor, and Dorothy SirLouis. Thorton and SirLouis are white females and Taylor is an African-American female. ( Id. at 137-41.) Stanford alleges that these three employees were not terminated despite similar violations. ( Id. at 139-41.) However, there is no evidence that any of these three employees refused to report to work in contravention of a direct order by a supervisor. ( Id. at 137-41.)
Indeed, Thorton was terminated, but not for insubordination. Instead, she was let go for absenteeism due to a "no-call/no-show" on October 17, 2002, in compliance with the progressive discipline policy outlined in the Handbook. (Mahl Aff. ¶ 4.) As for Taylor and SirLouis, Stanford does not present any evidence that either one ever refused to follow a direct order given by a supervisor, or were ever insubordinate. (Stanford Dep. at 138-41; Mahl Aff. at ¶ 6.) While Stanford does have evidence that Taylor yelled at him, this is not evidence that she was insubordinate. (Stanford Dep. at 137-41; Mahl Aff. ¶ 5.)
Stanford's Complaints to Various Agencies Regarding his Termination
After the phone conversation with Crawford, later that same day Stanford called the Indiana State Department of Health ("ISDOH") and left a message regarding the earlier phone call with Crawford. (Stanford Aff. ¶¶ 8-9.) The ISDOH called Stanford back on October 15, 2002, to obtain his statement. (Mahl Aff. at ¶ 11.) The ISDOH delivered no report to the Center and Stanford did not produce any documentation suggesting any adverse findings by the ISDOH. ( Id. ¶ 7.)
On November 5, 2002, Stanford filed a charge of discrimination with the South Bend Human Rights Commission ("Commission"). (Stanford Dep. at Ex. B.) Stanford alleged that the Center discriminated against him, in violation of Title VII of the Civil Rights Act of 1964, based upon his race and gender. ( Id.) The Commission assigned this charge, for administrative adjudication, to the Equal Employment Opportunity Commission ("EEOC"). ( Id.) The EEOC investigated this allegation and issued a finding of no probable cause on January 29, 2003. (Stanford Dep. at Ex. M.)
DISCUSSION
Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). The party seeking summary judgment carries the initial burden of demonstrating an absence of evidence to support the position of the non-moving party. Doe v. R.R. Donnelley Sons Co., 42 F.3d 439, 443 (7th Cir. 1994). The non-moving party must then set forth specific facts showing that there is a genuine issue of material fact and that the moving party is not entitled to a judgment as a matter of law. Anderson v. Liberty Lobby, 477 U.S. 242, 252 (1986). A genuine dispute about a material fact exists only if the evidence is such that a reasonable jury could return a verdict for the non-moving party. Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986).
Local Rule 56.1 sets forth specific requirements for both the party moving for summary judgment as well as for the non-moving party. It directs the moving party to file a "Statement of Material Facts" as to which "the moving party contends there is no genuine issue." N.D. Ind. L.R. 56.1(a). The party opposing the summary judgment motion must respond to each of the purported undisputed facts with a "Statement of Genuine Issues" setting forth "all material facts as to which it is contended there exists a genuine issue necessary to be litigated." Id. The Local Rule specifically states that "the court will assume that the facts as claimed and supported by admissible evidence by the moving party are admitted to exist without controversy, except to the extent that such facts are controverted in the `Statement of Genuine Issues' filed in opposition to the motion." N.D. Ind. L.R. 56.1(b); see also Buford v. Lux Co., Inc., 1997 WL 588887 (N.D. Ind. Sept. 3, 1997); Thiele v. Norfolk Western Ry. Co., 873 F. Supp. 1240, 1243 (N.D. Ind. 1994).
Stanford was advised of the consequences of not responding to the motion for summary judgment. He nonetheless failed to respond. Given that Stanford has not disputed any of the facts set forth in the Defendants' Statement of Material Facts, the Defendants' allegations in its Rule 56.1 Statement of Material Facts are deemed admitted unless they are unsupported by the evidence or contradict each other. See Smith v. Lamz, 321 F.3d 680, 683 (7th Cir. 2003) ("[w]e have consistently held that a failure to respond by the nonmovant as mandated by the local rules results in an admission").
Nevertheless, even where an opposing party completely fails to respond to a summary judgment motion, Rule 56(e) permits judgment for the moving party only " if appropriate — that is, if the motion demonstrates that there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law." LaSalle Bank Lake View v. Seguban, 54 F.3d 387, 392 (7th Cir. 1995) (quoting Johnson v. Gudmundsson, 35 F.3d 1104, 1112 (7th Cir. 1994) (emphasis in original)). Thus, even where all of the material facts are undisputed, the court still must ascertain that judgment is proper "as a matter of governing law." Id. (citations omitted). For this reason, we must analyze Stanford's claims of discrimination to determine whether judgment in favor of the Defendants is proper.
I. Stanford's Title VII and Section 1981 Claims
Stanford's principal claim is that he was fired from his employment because of his race and gender, in violation of 42 U.S.C. § 1981 and Title VII. Under § 1981, "[a]ll persons within the jurisdiction of the United States shall have the same right . . . to the full and equal benefit of all laws . . . as is enjoyed by white citizens." Patton v. Indianapolis Pub. Sch. Bd., 276 F.3d 334, 337-38 (7th Cir. 2002). Title VII makes it unlawful for an employer "to fail or refuse to hire or discharge any individual, or to otherwise discriminate against any individual . . . because of such individual's race, color, religion, sex, or national origin . . ." 42 U.S.C. § 2000e-2(a)(1). Because § 1981 claims are analyzed under the same rubric as Title VII claims, we need not address them separately. See Herron v. DaimlerChrysler Corp., 388 F.3d 293, 299 (7th Cir. 2004).
Stanford has brought his claims against not only Extendicare, but against his individual supervisors, Mahl and Crawford, as well. Title VII grants an individual protection from the discriminatory practices of his "employer." See generally 42 U.S.C. § 2000e. Supervisors, in their individual capacities, do not fall within Title VII's definition of an employer, and are not liable for alleged violations of Title VII. Robinson v. Sappington, 351 F.3d 317, 332 (7th Cir. 2003). Therefore, Mahl and Crawford, as Stanford's supervisors, are exempted from individual liability.
Under either theory, to prevail on a discrimination claim, a plaintiff must establish that he is the victim of intentional discrimination. See Jackson v. E.J. Brach Corp., 176 F.3d 971, 982 (7th Cir. 1999); see also Gonzalez v. Ingersoll Mill. Mach. Co., 133 F.3d 1025, 1035 (7th Cir. 1998). A plaintiff has two means of proving such discrimination: the "direct method" and the "indirect method." Haywood v. Lucent Techs., Inc., 323 F.3d 524, 531 (7th Cir. 2003). Because Stanford has no direct evidence of discrimination, we will analyze the case using the indirect method.
Under the indirect method, an employee must demonstrate that (1) he was a member of a protected class; (2) he performed his job according to his employer's legitimate expectations; (3) despite meeting his employer's legitimate expectations, he suffered an adverse employment action; and (4) was treated less favorably than one or more similarly situated employees outside of his protected class. Id. at 530; Peters v. Renaissance Hotel Operating Co., 307 F.3d 535, 545 (7th Cir. 2002); Stockett v. Muncie Ind. Transit Sys., 221 F.3d 997, 1001 (7th Cir. 2000). Failure to satisfy any one element of the prima facie case is fatal to an employee's discrimination claim. Brummett v. Lee Enters., Inc., 284 F.3d 742, 745 (7th Cir. 2002).
Under the second prong, satisfactory job performance includes adherence to a company's rules and regulations regarding employee conduct. Jones v. Union Pacific R.R. Co., 302 F.3d 735, 741 (7th Cir. 2002). If insubordination is identified by an employer as a terminable offense, then it is clear that insubordinate acts do not fall within the employer's legitimate expectations. Contreras v. Suncast Corp., 237 F.3d 756, 760-761 (7th Cir. 2001); see also Robin v. Espo Eng'g Corp., 200 F.3d 1081, 1090 (7th Cir. 2000). Here, the employee handbook furnished by Extendicare to Sanford clearly identified that insubordination and the refusal to follow direct orders would not be tolerated by the company, and classified such actions as immediately terminable offenses.
Stanford did not perform his job according to the legitimate expectations of Extendicare. Stanford had serious attendance violations and was insubordinate to boot. He was specifically told that his leave request was denied and that he had to be at work on October 14, 2002. He ignored the command and was terminated as a result. A person who ignores reasonable orders and who fails to show up for work is not meeting legitimate expectations.
Even if Stanford had presented evidence to establish the prima facie case, he still cannot prevail because Extendicare had a legitimate, non-discriminatory reason for terminating him, and he has no evidence that the reason is pretextual. Herron, 388 F.3d at 299; Krchnavy v. Limagrain Genetics Corp., 294 F.3d 871, 876 (7th Cir. 2002). To prove pretext, Stanford must show that the reason given by Extendicare is "a lie rather than an oddity or an error." Herron, 388 F.3d at 299; Peters, 307 F.3d at 545 (quoting Kulumani v. Blue Cross Blue Shield Ass'n, 224 F.3d 681, 685 (7th Cir. 2000)).
Defendants' have articulated a legitimate non-discriminatory basis for its decision to terminate Stanford; he was insubordinate in refusing to report to work as ordered. There is ample evidence to support this reason for his termination and the Seventh Circuit has consistently held that an "employee's insubordination toward supervisors and coworkers . . . is justification for [adverse employment action]." Love v. City of Chicago Bd. of Educ., 241 F.3d 564, 570 (7th Cir. 2001) (quoting Kahn v. U.S. Sec'y of Labor, 64 F.3d 271, 279 (7th Cir. 1995)) rev'd on other grounds, 321 F.3d 928 (7th Cir. 2004); see also Jones, 302 F.3d at 742 (insubordination provides an employer with a legitimate, non-discriminatory reason for termination).
Summary judgment is therefore proper on Stanford's claims under Title VII and 1981 and is hereby granted.
II. Stanford's Title VII Retaliation Claim
Stanford also alleges that his termination was in retaliation "for speaking out on patient safety as [a] patient advocate." (Compl. at 2.) Title VII prohibits an employer from retaliating against an employee who has "opposed any practice made an unlawful employment practice by this subchapter or has made a charge, testified, assisted, or participated in any manner in an investigation proceeding or hearing" under the statute. See 42 U.S.C. § 2000e-3(a). There are two evidentiary routes a plaintiff may take to establish a claim of retaliation: a direct and indirect route. Haywood, 323 F.3d at 529. There is no direct evidence of retaliation and Stanford must therefore use the indirect method of proof, an adaptation of the McDonnell Douglas method in the retaliation context.
Under the indirect method, an employee must demonstrate that (1) he engaged in statutorily protected activity; (2) he performed his job according to his employer's legitimate expectations; (3) despite meeting his employer's legitimate expectations, he suffered an adverse employment action; and (4) was treated less favorably than similarly situated employees who did not engage in statutorily protected activity. Haywood, 323 F.3d at 531; Stone v. City of Indianapolis Pub. Util. Div., 281 F.3d 640, 644 (7th Cir. 2002); Hilt-Dyson v. City of Chicago, 282 F.3d 456, 466 (7th Cir. 2002). If the plaintiff establishes a prima facie case of retaliation using the indirect method, the burden shifts to the defendant to present a legitimate, nondiscriminatory reason for the adverse employment action. Hilt-Dyson, 282 F.3d at 466. If the defendant is able to meet this burden of production, the plaintiff may survive summary judgment only if he demonstrates the pretextual nature of the defendant's proffered reason. Id.
The alleged protected activity at issue in this case is Stanford's "speaking out on patient safety as a patient advocate." It is not likely that this constitutes a "statutorily protected activity" as required under the first prong of the prima facie case. But we need not decide that definitively because Stanford's claim fails for the same reasons as set forth above in the analysis of his discrimination claim. Stanford's insubordination and his refusal to show up for work clearly shows he was not performing his job according to Extendicare's legitimate expectations. Further, insubordination, as the Defendants' articulated reason for Stanford's termination, is a legitimate and non-discriminatory basis for their action, which Stanford has not shown to be pretextual. For these reasons, as explained above, Stanford is unable to prevail on his claim for retaliation. Thus, summary judgment is granted for the Defendants on Stanford's retaliation claim.
III. Violation of First Amendment Right to Freedom of Speech
Stanford further claims that Extendicare willfully violated his right to freedom of speech. One can only assume that this "speech" relates to his earlier claim of "speaking out on patient safety." However, the constitutional protection of free speech arises out of the First Amendment to the United States Constitution and is applicable to only those entities engaged in "state action." Messman v. Helmke, 133 F.3d 1042, 1045 (7th Cir. 1998); Ryan v. County of DuPage, 45 F.3d 1090, 1091 (7th Cir. 1995). Extendicare is not a governmental entity, nor is it a state actor. With respect to private entities, state action can be found only when a state agency or entity "has exercised coercive power or has provided such significant encouragement that the choice must in law be deemed to be that of the State." Blum v. Yaretsky, 457 U.S. 991, 1004 (1982). The mere fact that nursing homes are subject to state regulation does not by itself convert the nursing home into a state actor. Hack v. Oxford Health Care, Inc., 562 F.Supp. 295, 303 (N.D. Ind. 1983) (state regulation of nursing homes does not rise to the level of state action) (citing Blum, 457 U.S. at 1004). Instead, the plaintiff must also prove that there is "a sufficiently close nexus between the state and the private conduct so that the action `may be fairly treated as that of the State itself.'" Wade v. Byles, 83 F.3d 902, 905 (7th Cir. 1996) (quoting Blum, 457 U.S. at 1004)). Thus, the State must somehow be responsible for the allegedly unlawful actions taken by the private party. Id.
Here, Stanford presents no evidence of a connection between Extendicare and the State which would enable this Court to consider Extendicare to be a state actor. His First Amendment claim must therefore fail.
IV. Stanford's State Law Wrongful Termination Claim
Finally, Stanford has brought a state law claim alleging wrongful termination. Because the Court has granted summary judgment on Stanford's federal claims, original jurisdiction is now lacking and the Court may, pursuant to 28 U.S.C. § 1367(c)(3), properly dismiss Stanford's remaining state law claim. "In an ordinary case of supplemental jurisdiction, the presumption is in favor of relinquishment when the claim that is within the original jurisdiction of the district court is dismissed before trial." Alonzi v. Budget Constr. Co., 55 F.3d 331, 334 (7th Cir. 1995) (quoting Brazinski v. Amoco Petroleum Additives Co., 6 F.3d 1176, 1182 (7th Cir. 1993)). The Court chooses to exercise its discretion under 28 U.S.C. § 1367(c)(3), and hereby dismisses, without prejudice, Stanford's remaining state law claim.