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Gilmore v. Springhill Medical Center

United States District Court, W.D. Louisiana, Shreveport Division

May 3, 2018





         The Defendant, Springhill Medical Center (“Springhill”) filed the present Motion for Summary Judgment against Plaintiff, Mary Gilmore (“Gilmore”) claiming Gilmore has failed to meet her burden of showing the existence of an element essential to her race discrimination, age discrimination, and retaliation claims. After careful consideration of all parties' submissions, and the law applicable before the Court, Springhill's Motion for Summary Judgment (Record Document 19) is GRANTED. Moreover, Gilmore's Motion to Strike (Record Document 23) is DENIED.

         I. BACKGROUND

         In January 2012, Gilmore, a black female over the age of forty, was hired as a Registered Nurse at Springhill in the geriatric psychiatric unit known as the Reflections Unit (the “Reflections Unit”). See Record Document 1 at 1, ¶ 4, Complaint; Record Document 19-3 at 13-15, Gilmore Depo., Exhibit A. Gilmore's immediate supervisor was Karen Budwah (“Budwah”). Budwah was hired as the Program Director of the Reflections Unit on July 14, 2014. See Record Document 19-5 at 2, ¶¶ 3, 5, Budwah Decl., Exhibit C. Budwah reported to the Chief Nursing Officer, Rhonda Perez (“Perez”). Perez was the Chief Nursing Officer between September 2014 and June 2016. See Record Document 19-6 at 1, ¶ 3, Perez Decl., Exhibit D. Gilmore's job functions included, inter alia, addressing concerns with co-workers professionally and privately, anticipating patient needs, cooperating with others, documenting medications, treatments, and nursing interventions on appropriate chart forms, providing safety measures, and complying with patient safety goals. See Record Document 19-3 at 14-15, Gilmore Depo.; Record Document 19-3 at 88, Job Description, Exhibit A-2.

         At Springhill, patient fall prevention is a “huge priority.” See Record Document 19-5 at 1, ¶ 7, Budwah Decl. (emphasis added). Springhill's employees, including Gilmore, were regularly trained on these guidelines, including but not limited to, occurrence reports, interventions, and post-fall huddles. See id. at ¶ 8. Gilmore attended staff meetings on August 12, 2014, September 26, 2014, and September 29, 2014 where patient falls were discussed. See Record Document 21-6 at 2-3, Reflections Staff Meeting Agenda, Exhibit 12. However, Gilmore struggled with this aspect of her job, namely, documentation of patient falls. On January 15, 2014, Dana Jones (“Jones”), currently the Chief Operating Officer at Springhill, but previously the Chief Nursing Officer between 2006 and 2014, spoke with Gilmore regarding the fall prevention guidelines. See Record Document 19-7 at 1, ¶¶ 3, 4, Jones Decl., Exhibit E. On July 28, 2014, Budwah had a 1:1 Review with Gilmore regarding the lack of proper documentation of a patient fall that occurred under her care. See Record Document 19-5 at 4, ¶ 22, Budwah Decl.; Record Document 19-5 at 7, Counseling Notes, Exhibit C-2. On September 4, 2014, Budwah met with Gilmore regarding the lack of documentation of a patient fall that occurred under her care. See Record Document 19-5 at 4, ¶ 23, Budwah Decl.; Record Document 19-5 at 8, Counseling Notes, Exhibit C-3. On October 17, 2014, Budwah met with Gilmore again regarding another patient fall that occurred during Gilmore's shift when she was the Charge Nurse. See Record Document 19-5 at 4, ¶ 24, Budwah Decl.; Record Document 19-5 at 7, Counseling Notes, Exhibit C-4. However, Gilmore cites to her past performance review conducted on September 23, 2014 by Budwah to argue that she does not have performance issues. See Record Document 21-3 at 2, RN Evaluation, Exhibit 3. Gilmore contends that her performance review indicates that she “meets expectations.” See id. Nonetheless, the performance review does note that she and Budwah “[h]ave reviewed/discussed plans for improvement in documentation.” Id. at 7.

         In keeping with its mission to make patient fall prevention a priority, Springhill created the fall Performance Improvement Team (“PIT”) in September of 2014. See Record Document 19-5 at 2, ¶ 11, Budwah Decl. Perez and Budwah began working together to improve their training and procedures to prevent injuries. See Record Document 19-6 at 1, ¶ 5, Perez Decl.; Record Document 19-5 at 2, ¶ 12, Budwah Decl. In order to do this, they were looking at trends in patient falls (e.g., Were there common elements? Did the falls occur on the same shift? Were they all on days when they are busier? Did they occur on nights when there are less visitors, less people rounding?). See Record Document 19-6 at ¶ 5, Perez Decl. Perez noticed that more falls were occurring in the evening times, and in particular in the Reflections Unit. Id. at ¶ 6. Gilmore contests this factual statement, but offers no evidence to rebut it. Accordingly, Perez and Budwah began looking at staff members as a variable and noticed that most of the patient falls in the Reflections Unit occurred at night. Id.; Record Document 19-5 at 2, ¶ 13, Budwah Decl. Specifically, the patient falls occurred during shifts when Gilmore was the Charge Nurse. Id.; Record Document 19-5 at 2, ¶ 13, Budwah Decl. Gilmore also contests this factual statement, but offers no evidence to rebut it.

         On November 6, 2014, Springhill suspended Gilmore citing concerns for patient safety and the need to further investigate and identify problems. See Record Document 19-6 at 1, ¶ 8, Perez Decl. Perez informed Gilmore that she was being placed on suspension “related to several trending items such as inappropriate documentation, recording of medications - including route, frequency, and dosage with multiple errors noted as well as a trend of patient falls with injuries.” Id. at ¶ 9; see Record Document 19-6 at 6, Disciplinary Repor t Form, Exhibit D-1. Gilmore attests in her sworn declaration that she was never told of these violations and was not given specific enough details to dispute the charges. See Record Document 21-2 at 2, ¶ 5, Gilmore Decl. Exhibit 1. However, the evidence offered indicates otherwise because Gilmore signed the Disciplinary Report Form on November 6, 2014, which listed the reasons for the suspension, as well as signing other Disciplinary Report Forms detailing her past infractions. See Record Document 19-6 at 6, Disciplinary Report Form, Exhibit D-1. Gilmore also received verbal warnings. See Record Document 19-3 at 17, Gilmore Depo., Exhibit A. Further, Perez documented the meeting in a memorandum that was signed by Perez and witnessed by Budwah detailing the reasons for the suspension and the process going forward. See Record Document 19-6 at 8, Memorandum, Exhibit D-1. Gilmore believes the reason she was suspended were due to the staff being upset with her because she reported past violations. Specifically, on November 5, 2014, the day before she was suspended, Gilmore reported problems to Perez and Budwah relating to her nurse aide, Natasha Myers (“Myers”). See Record Document 21-2 at 1, Gilmore Decl., Exhibit 1. However, Gilmore offers no evidence that she reported past violations. Nonetheless, Gilmore does offer a sworn declaration from Ron Wollard (“Wollard”), a patient at Springhill, specifically, the Reflections Unit. See Record Document 21-4 at 5, Wollard Decl., Exhibit 7. Wollard states that he “often overheard conversations by nurses on duty saying they were going to get rid of Gilmore” and that “[i]t seemed they were trying to get her fired.” Id.

         During the investigation of Gilmore, but also before, Perez not only discovered the substantial counseling Gilmore received relating to patient falls and proper documentation discussed supra, but that Gilmore had been caught sleeping on the job, and failed to dispose of methadone tablets in dereliction of her duty as a nurse. On November 6, 2014, Mark Goodson (“Goodson”), a shift supervisor at Springhill, emailed Perez stating that he caught Gilmore sleeping. See Record Document 19-6 at 11, Goodson Email, Exhibit D-3. On November 7, 2014, Vickie Horn (“Horn”), a Licensed Practical Nurse at Springhill, emailed Budwah stating that she discussed with Budwah and Perez that Gilmore slept during her shifts which occurred nightly up until about a month prior to November 7, 2014, but still occurred frequently. See Record Document 19-5 at 10, Vickie Horn Email, Exhibit C-5. Furthermore, Kristi Joyce (“Joyce”), a Registered Nurse at Springhill, who worked with Gilmore in the Reflections Unit declared that she personally witnessed Gilmore sleeping on the job. See Record Document 22-2 at 1, ¶¶ 3-5, Joyce Decl., Exhibit H. In or around the end of May 2014 and beginning of June 2014, Joyce took photographs/video of Gilmore sleeping on the job. See id. at ¶ 6. During Perez's investigation, Joyce attests that she sent Perez a copy of the photographs/video of Gilmore sleeping during her shift. See id. at ¶ 7. The photographs/video are before the Court and are subject to Gilmore's Motion to Strike that will be discussed infra. Lastly, Perez discovered that on July 19, 2014, Gilmore improperly disposed of two methadone tablets in dereliction of well-known nursing practices. See Record Document 19-7 at 2, ¶ 5, Jones Decl., Exhibit E; Record Document 19-7 at 5, Disciplinary Report Form, Exhibit E-2; Record Document 19-6 at 2, ¶ 10, Perez Decl.

         On November 7, 2014, Perez emailed Ashley Ortego (“Ortego”), who works in the Human Resources Department, highlighting the past performance issues of Gilmore and recommending that Springhill terminate Gilmore. See Record Document 21-6 at 9, Perez Email, Exhibit 14. Following the investigation, on November 14, 2014, Perez, Budwah, and Ortego, terminated Gilmore's employment in the interest of patient safety. See Record Document 19-5 at 3, ¶ 18, Budwah Decl. A Disciplinary Report Form was completed noting Gilmore had committed “willful violations of safety standards and other standards which compromised the physical well-being of patients, coworkers, and the organization.” See Record Document 19-3 at 160-62, Disciplinary Report Form, Exhibit A-24; Record Document 19-3 at 73-74, Gilmore Depo.; Record Document 19-5 at 3, ¶ 19, Budwah Decl. The Disciplinary Report Form notes some of Gilmore's previous warnings-written warning on November 6, 2014 for performance, verbal warning on October 27, 2014 for sleeping, and verbal warning on July 29, 2014 for improperly wasting narcotics. See Record Document 19-3 at 160-62, Exhibit A-24; Record Document 19-3 at 73-74, Gilmore Depo. The Disciplinary Report Form states that Gilmore is being terminated for “unsafe behavior, ” “failing to follow instructions, ” “poor work quality, ” and “sleeping on the job.” Record Document 19-3 at 160.

         Following her termination, Gilmore appealed the decision to the Chief Executive Officer of Springhill, Vince Sedminik (“Sedminik”). See Record Document 19-3 at 79, Gilmore Depo. Sedminik advised Gilmore that he would speak to Jones, Perez, Budwah, and Ortego about the decision to terminate Gilmore. See id. at 80. Sedminik conferred with Budwah and Perez, who both advised him of Gilmore's performance problems and stated they would be uncomfortable with the safety of Springhill's patients if Gilmore was allowed to be reinstated. See Record Document 19-6 at 3, ¶ 13, Perez Decl.; Record Document 19-5 at 3, ¶ 20, Budwah Decl. On November 18, 2014, Sedminik met with Gilmore again and advised her that he agreed with the staff's decision to terminate her employment. See Record Document 19-3 at 80, Gilmore Depo. However, Gilmore alleges in her Complaint that the decision was not based on safety concerns. Gilmore contends that Sedminik “told her he was going with an all-white administrative staff.” Record Document 1 at 4, ¶ 14. Nonetheless, Gilmore contradicts this statement in her declaration and deposition where she says Sedminik told her he was changing administrative personnel, and named only white nurses and “he did not really say he was going with an all-white administrative staff.” See Record Document 21-2 at 2, ¶ 7, Gilmore Decl. Exhibit 1; Record Document 19-3 at 78, Gilmore Depo., Exhibit A.

         On March 4, 2015, Gilmore filed a charge with the Equal Employment Opportunity Commission (EEOC), alleging discrimination because of her race, age, and retaliation. Record Document 1 at 4, ¶ 19, Complaint. The EEOC notified Gilmore by letter dated January 27, 2016 that she was entitled to initiate a civil action in the United States District Court as provided in 42 U.S.C. § 2000e-5(e) and (f). See Record Document 1-2, Notice of Suit Rights. On April 22, 2016, Gilmore filed suit with this Court asserting a Title VII race discrimination claim, an Age Discrimination in Employment Act (“ADEA”) claim, and a claim for retaliation. See Record Document 1.

         Springhill asserts that it had legitimate, nondiscriminatory reasons for terminating Gilmore. See Record Document 19-1 at 26, Memorandum in Support of Defendant's Motion for Summary Judgment. Gilmore argues that those reasons offered are pre-textual and the evidence offered by Springhill is not competent summary judgment evidence. See id. However, Springhill's primary argument is that Gilmore has offered no evidence to support her allegations that Springhill's reasons were pre-textual. Lastly, Springhill contends that Gilmore's retaliation claim fails as a matter of law because it is based on post-termination conduct thereby eliminating any casual connection. See id. at 27.


         A. Summary Judgment Standard.

         Rule 56 of the Federal Rules of Civil Procedure governs summary judgment. This rule provides that the court “shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). In order for the court to find there are no genuine material factual issues, the court must be satisfied that no reasonable trier of fact could have found for the nonmoving party or, in other words, that the evidence favoring the nonmoving party is insufficient to enable a reasonable jury to return a verdict for the non-movant. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50, 106 S.Ct. 2505, 2511 (1986). Also, “a party asserting that a fact cannot be or is genuinely disputed must support the motion by citing to particular parts of materials in the record.” Fed.R.Civ.P. 56(c)(1)(A). “If a party fails to properly support an assertion of fact or fails to properly address another party's assertion of fact as required by Rule 56(c), the court may . . . grant summary judgment.” Fed.R.Civ.P. 56(e)(3).

         In a summary judgment motion, “a party seeking summary judgment always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the pleadings . . . [and] affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2553 (1986) (internal quotations and citations omitted). If the movant meets this initial burden, then the non-movant has the burden of going beyond the pleadings and designating specific facts that prove that a genuine issue of material fact exists. See id. at 324, 106 S.Ct. at 2553; see Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994). A non-movant, however, cannot meet the burden of proving that a genuine issue of material fact exists by providing only “some metaphysical doubt as to the material facts, by conclusory allegations, by unsubstantiated assertions, or by only a scintilla of evidence.” Little, 37 F.3d at 1075. Similarly, “unsupported allegations or affidavit or deposition testimony setting forth ultimate or conclusory facts and conclusions of law are insufficient to defeat a motion for summary judgment.” Clark v. Am's Favorite Chicken, 110 F.3d 295, 297 (5th Cir. 1997).

         In reviewing a motion for summary judgment, the court is to view “the facts and inferences to be drawn therefrom in the light most favorable to the non-moving party.” Tubos de Acero de Mexico, S.A. v. Am. Int'l Inv. Corp., Inc., 292 F.3d 471, 478 (5th Cir. 2002); see also Harris v. Serpas, 745 F.3d 767, 771 (5th Cir. 2014). Further, the district court does not make credibility determinations or weigh evidence. EEOC v. Chevron Phillips Chemical Co., LP, 570 F.3d 606, 612 n.3 (5th Cir. 2009). However, when there is video evidence available in the record, the court is not bound to adopt the nonmoving party's version of the facts if it is contradicted by the record, but rather should “review[ ] the facts in the light depicted by the videotape.” Scott v. Harris, 550 U.S. 372, 381, 127 S.Ct. 1769, 1776 (2007); see also Carnaby v. City of Houston, 636 F.3d 183, 187 (5th Cir.2011) (“Although we review evidence in the light most favorable to the nonmoving party, we assign greater weight, even at the summary judgment stage, to the facts evident from video recordings taken at the scene.”).

         B. Gilmore's Motion to Strike Springhill's Summary Judgment Evidence.

         Federal Rule of Civil Procedure 12(f) allows the court to strike "from any pleading any insufficient defense or any redundant, immaterial, impertinent, or scandalous matter." Fed.R.Civ.P. 12(f). A motion to strike under Rule 12(f) "is a drastic remedy to be resorted to only when required for the purposes of justice." Augustus v. Bd. of Pub. Instruction of Escambia Cnty., Fla., 306 F.2d 862, 868 (5th Cir. 1962); see also Kaiser Aluminum & Chem. Sales, Inc. v. Avondale Shipyards, Inc., 677 F.2d 1045, 1057 (5th Cir. 1982) ("[M]otions to strike a defense are generally disfavored, . . ."). A motion to strike should be granted only when "the allegations are prejudicial to the defendant or immaterial to the lawsuit." Johnson v. Harvey, Civil Action No. 96-3438, 1998 U.S. Dist. LEXIS 14203, at *20 (E.D. La. Sept. 8, 1998) (citation omitted). Immateriality is established by showing that the challenged allegations "can have no possible bearing upon the subject matter of the litigation." Bayou Fleet P'ship, LLC v. St. Charles Par., Civil Action No. 10-1557, 2011 U.S. Dist. LEXIS 73867, at *16 (E.D. La. July 8, 2011) (citations omitted).

         Gilmore argues that Springhill's Exhibits A-20, D-2, and H should be stricken from the record because the photographs/video of her sleeping on the job are not properly authenticated. See Record Document 23-1, Memorandum in Support of Motion to Strike. Specifically, Gilmore claims that authentication is needed “to show that the person in the photographs/video was Gilmore, that the photograph was real and not doctored, or provide any background as to the circumstances under which the photograph was taken. Gilmore claims the use of the photographs and video raise questions about the place, time, and date they were taken.” Id. at 1. Springhill argues that the photographs/video were properly authenticated via the declaration under penalty of perjury pursuant to 28 U.S.C. § 1746 by Joyce.

         Federal Rule of Evidence 901(a) provides: “To satisfy the requirement of authenticating or identifying an item of evidence, the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is.” “[A] document such as a photograph can be authenticated by testimony of a person with personal knowledge indicating that it is what it is claimed to be.” Greco v. Velvet Cactus, LLC, Civil Action No. 13-3514, 2014 U.S. Dist. LEXIS 87778, at *12 (E.D. La. June 27, 2014) (finding a declaration of business owner sufficiently authenticated photograph of workplace policy). In her declaration, Joyce states that she “personally witnessed Ms. Gilmore sleeping during her shift” and the referenced photographs and video are “true and correct copies” of “Ms. Gilmore sleeping during her shift” that she personally took the video/photographs in or around May 2014 and June 2014, respectively. Record Document 22-2 at 1-2, ¶¶ 5, 8-9, Joyce Decl., Exhibit H. Joyce's attestations directly respond to Gilmore's concerns, showing that:

(1) The person in the photographs and video is Gilmore. Joyce attests that the evidence presented are “photographs of Ms. Gilmore” and ...

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