United States District Court, M.D. Louisiana
WANDA L. GRANT
OCEANS HEALTHCARE, LLC AND OCEANS ACQUISITION, INC.
RICHARD L. BOURGEOIS, JR. MAG. JUDGE.
RULING AND ORDER
W. deGRAVELLES UNITED STATES DISTRICT JUDGE.
matter comes before the Court on Plaintiff, Wanda Grant's
(“Plaintiff” or “Grant”) Motion
for Partial Summary Judgment. (Doc. 31). Defendants,
Oceans Healthcare, LLC, Oceans Acquisition, Inc. and Oceans
Behavioral Hospital of Baton Rouge, LLC
(“Defendants” or collectively
“Oceans”), opposed the motion. (Doc. 36).
Plaintiff replied. (Doc. 40). Also before the Court is
Defendants' Motion for Summary Judgment. (Doc.
32). Plaintiff opposed the motion. (Doc. 37). Defendants
replied. (Doc. 39). The Court has carefully considered the
law, the facts in the record, and the arguments and
submissions of the parties and is prepared to rule. For the
following reasons, Plaintiff's motion for partial summary
judgement is denied. Defendants' motion for summary
judgment is granted.
instituted suit against Defendants on September 14, 2017.
(Doc. 1). Plaintiff alleged that Defendants violated the
Americans with Disabilities Act, 42 U.S.C. § 12101, et
seq, (“ADA”), (Doc. 1, p. 1), and Louisiana state
law “for disability discrimination”, La. R.S.
23:323. (Doc. 1, p. 5). Plaintiff characterizes herself as a
“cancer survivor” and asserts that she was
perceived to have a disability and was discriminated in her
workplace on the basis of a past diagnosis. (Id.).
is a Licensed Professional Counselor (“LPC”) and
was hired as a therapist by Oceans Behavioral Hospital of
Baton Rouge (“Hospital”) on November 29, 2016.
(Doc. 1, p. 3). Eight years prior to being hired by the
Hospital, Plaintiff “was diagnosed with stage 0 cancer
(pre-cancer) and underwent treatment”. (Id.).
On January 10, 2017, Plaintiff underwent a mammogram and
ultra sound to investigate a lump. Because of her prior
history, Plaintiff was concerned. Prior to undergoing her
mammogram and ultra sound, Plaintiff alleges that she advised
her immediate supervisor, Joyce Garon, of her reason for a
need to take leave. (Doc. 1, pp. 3-4). Ms. Garon does not
recall Plaintiff's request for time off for a mammogram
or a disclosed history of breast cancer. (Doc. 39-1, p. 3).
Plaintiff returned to work after her appointment on January
11, 2017, she alleges that she “was approached”
by “her administrator”, Valerie Dalton, regarding
the “results of her mammogram”. (Doc. 1, p. 4).
Ms. Dalton, Administrator for the Hospital, claims that
Plaintiff approached her and volunteered that she had
recently been absent for a mammogram and was concerned
because of a breast cancer history. (Doc. 32-4, p. 4).
January 12, 2017, Plaintiff's employment was reduced from
full-time therapist to an as-needed status
(“PRN”). Plaintiff claims that Dalton told her
that she would remain on PRN status “until she could
find another job, because her current position was being
phased out”. Plaintiff claims that she was
“[u]ltimately” “forced to resign”.
(Id.). Dalton denies stating “until [you] can
find another job” or that the position of therapist was
being phased out. The reason for the demoted work status was
decreased patient attendance evidenced by a recent patient
census and resulting downward fiscal trends and decreased
revenue. Two other employees, a nurse and a driver, were also
demoted in status due to the planned reduction in force.
alleges that she was “later informed” by “a
human resources representative” that she was “in
fact forced out of her position” due to “the fear
of a cancer relapse, which would cause her to miss
work”. (Id.). Defendants deny this statement.
amended her Complaint on October 10, 2017. (Doc. 5). The
amended Complaint did not alter the allegations summarized
above from the original Complaint; however, Plaintiff
identified the various Oceans Defendants as “Defendant
1”, “Defendant 2” and “Defendant
3”, asserting that any one of the Defendants or
collectively are potentially responsible. (Doc. 5).
Relevant Standard - Motion for Summary Judgment
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). If the mover bears his burden of showing
that there is no genuine issue of fact, “its opponent
must do more than simply show that there is some metaphysical
doubt as to the material facts … [T]he nonmoving party
must come forward with ‘specific facts showing that
there is a genuine issue for trial.'” See
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475
U.S. 574, 586-87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)
(internal citations omitted). The non-mover's burden is
not satisfied by “conclusory allegations, by
unsubstantiated assertions, or by only a
‘scintilla' of evidence.” Little v.
Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir.
1994)(citations and internal quotations omitted). The party
opposing the motion for summary judgment may not sit on his
hands, complacently relying on the pleadings. Weyant v.
Acceptance Ins. Co., 917 F.2d 209 (5th Cir. 1990).
“Where the record taken as a whole could not lead a
rational trier of fact to find for the non-moving party,
there is no ‘genuine issue for trial.'”
Matsushita Elec. Indus. Co., 475 U.S. at 587.
General allegations that fail to reveal detailed and precise
facts will not prevent the award of summary judgment.
Walton v. Alexander, 20 F.3d 1350, 1352 (5th Cir.
In resolving the motion, the court may not undertake to
evaluate the credibility of the witnesses, weigh the
evidence, or resolve factual disputes; so long as the
evidence in the record is such that a reasonable jury drawing
all inferences in favor of the nonmoving party could arrive
at a verdict in that party's favor, the court must deny
Int'l Shortstop, Inc. v. Rally's Inc., 939
F.2d 1257, 1263 (5th Cir. 1991).
Plaintiff's Motion for Partial Summary Judgment (Doc.
Motion for Partial Summary Judgment, Plaintiff asks the Court
to find that she prevails on her claim of disability
discrimination under the ADA. Plaintiff does not seek a
finding related to her claim under the LEDL. Plaintiff argues
her prima facie case of disability discrimination
under the ADA supported by record evidence and argues that
Defendants' legitimate, non-discriminatory reason for
reducing her employment status was a pretext.
Plaintiff's Memorandum in Support (Doc. 31-2)
is a Licensed Professional Counselor. She was hired as a
therapist on November 29, 2016, to work at Oceans'
Intensive Out-Patient Clinic (“IOP”). (Doc. 31-2,
p. 1 (citing Doc. 31-4)). In 2002, Plaintiff claims that she
was “diagnosed with breast cancer”. (Doc. 31-2,
p. 1 (citing Doc. 31-3, p. 109, ll. 7-24)). On January 9,
2017, Plaintiff underwent a mammogram and ultrasound to
investigate a lump. (Doc. 31-2, p. 1 (citing Doc. 31-3, p.
119, ll. 6-12)). When she returned to work, she provided her
supervisor with a note from her doctor regarding the reason
for her absence. (Doc. 31-2, p. 1 (citing Doc. 31-3, p. 120,
ll. 19-25)). On January 11, 2017, Plaintiff claims that the
facility administrator, Valerie Dalton, approached her
regarding the results of her medical appointment. (Doc. 31-2,
p. 1 (citing Doc. 31-1, p. 120, pp. 6-15)). On January 12,
2017, Plaintiff met with Dalton and the facility human
resources director at the time, Edward Hannie, at which time,
Plaintiff's employment was reduced to PRN status.
Plaintiff alleges that Dalton advised her that she could
remain at this status until she found other employment. (Doc.
31-2, p. 2 (citing Doc. 31-3, p. 131, ll. 19-23)). Plaintiff
resigned instead. (Doc. 31-2, p. 2 (citing Doc. 31-4)).
Hannie later advised Plaintiff that she was “forced out
of her position” by Dalton due to a fear of cancer
relapse and being left short-handed. (Doc. 31-2, p. 2 (citing
Doc. 31-4, pp. 144-145)).
first argues that she is a “qualified individual by
being regarded as disabled”. (Doc. 31-2, p. 5).
Plaintiff avers that: she discussed with her supervisor that
she was a cancer survivor and there was a concern of relapse,
(Doc. 31-2, p. 5 (citing Doc. 31-3, p. 120, ll. 6-25; Doc.
31-4, p. 130, ll. 2-6)); she experienced a “prohibited
adverse action” when her employment was reduced from
full time to “'as needed'” presumably
based on the assumption that she would take time off for
medical care related to cancer, (Doc. 31-2, p. 5 (citing Doc.
31-4, pp. 134-36)); she requested a leave of absence to
attend a medical appointment, (Doc. 31-2, p. 5 (citing Doc.
31-3, p. 120, ll. 6-25)); she submitted a note from her
doctor upon return to work, (id.); Dalton later
inquired about Plaintiff's diagnosis and treatment,
(id.); Dalton indicated that Plaintiff should
provide her with the test results, (id.); Dalton and
Hannie then informed Plaintiff of her change in employment,
(Doc. 31-2, pp. 5-6 (citing Doc. 31-3, p. 120, ll. 6-25));
and the close proximity in time of Plaintiff notifying her
employer of her medical status and the change in employment
status is a “sufficient inference that Defendants
regarded Plaintiff as disabled”. (Doc. 31-2, p. 6
(citing Suggs v. Cent. Oil of Baton Rouge, LLC, Civ.
A. 13-25, 2014 WL 3037213, at *6 (M.D. La. July 3, 2014)).
also relies upon Maldonado v. U.S. Bank, 186 F.3d
759, 767 (7th Cir. 1999); Heyman v. Queens Vill. Comm.
for Mental Health for Jamaica Cmty. Adolescent Program,
Inc., 198 F.3d 68, 73 (2nd Cir. 1999); Price v.
Dolphin Servs., Inc., No. 99-3888, 2000 WL 1789962, at
*10 (E.D. La. Dec. 5, 2000); and Costello v. St. Francis
Hosp., 258 F.Supp.2d 144 (E.D.N.Y. 2003) for the premise
that a close proximity in time between when a medical
condition arises or is disclosed and the change in employment
status infers discrimination.
Plaintiff argues that she was qualified to perform the
essential functions of her job. (Doc. 31-2, p. 8). Plaintiff
points out that the record is absent of any disciplinary
actions taken against her or notations of poor performance.
In fact, Plaintiff argues that she was
“indispensable”. (Id. (citing Doc. 31-4,
pp. 123-24, 143)).
contends that she was constructively discharged. (Doc. 31-2,
p. 8). Plaintiff avers that she was compelled to resign and
had no choice otherwise. (Doc. 31-2, pp. 9-10). Plaintiff
argues that Defendants' proffered reason for her change
in employment was a pretext for discrimination. (Doc. 31-2,
to Plaintiff, Defendants' proffered reason that it
reduced its staff due to a drop in the patient census is not
supported by the evidence. Plaintiff highlights the
deposition testimony of Hannie that there was no knowledge of
any other therapist having their hours reduced and how it was
difficult to find licensed therapists in the Baton Rouge
market. (Doc. 31-2, p. 11 (citing Doc. 31-4, p. 185)).
Defendants' Opposition (Doc. 36)
oppose Plaintiff's motion and argue that Plaintiff cannot
prove every element of her claim and cannot show that
“any adverse employment action was taken
‘because' she was ‘regarded as' disabled
under the ADAAA”. (Doc. 36, p. 1). Defendants claim
that the decision to move Plaintiff to a “part time as
needed” position was made before Plaintiff disclosed
her cancer history to a “decision-maker”.
(Id.). Defendants further contend that they reduced
the hours of three employees due to a decline in the patient
census. (Doc. 36, p. 2).
first argue that the deposition testimony of Edward Hannie
should not be considered because he “failed to comply
with a Subpoena and Notice of Deposition and walked out
before his deposition was completed”. (Doc. 36, p. 2).
Defendants also argue that this Court “previously held
that Defendants' Motion in Limine was moot
because Plaintiff ‘has represented during this
conference that they do not intend to use these exhibits at
trial'”. (Id. (citing Doc. 23, p. 2)).
Based upon the ruling on Defendants' Motion in
Limine, Defendants contend that Plaintiff cannot now
attempt to utilize a Declaration of Hannie and portions of an
audio recording played at his deposition. Defendants reason
that this Court granted an extension in response to
Defendants' motion in limine in order to allow
Defendants the opportunity to cross-examine Hannie regarding
his declaration and audio recording; however, because Hannie
“stormed out” of his deposition before Defendants
could do so, Defendants were robbed of the opportunity to
cross-examine him on this evidence. Therefore, it is unfair
for Plaintiff to utilize this evidence in support of her
motion. (Doc. 36, pp. 2-3).
it is undisputed that Plaintiff was employed by Oceans
Behavioral Hospital, Defendants argue that Plaintiff has not
shown that she was employed by Oceans Acquisition, Inc. or
Oceans Healthcare, LLC. (Doc. 36, p. 3).
Plaintiff alleges that she was “regarded as”
having a disability, Defendants argue that Plaintiff concedes
that she is not disabled. (Doc. 36, p. 4). Defendants argue
that Plaintiff cannot show that she was “regarded
as” disabled because she relies on an alleged remark
from Dalton “which is denied, and not an undisputed
fact”. (Doc. 36, p. 5 (citing Dalton Declaration,
¶ 28, and Dalton Supplemental Declaration, ¶ 14)).
also argue that Plaintiff cannot show that any adverse action
was taken against her because of the alleged disability.
Plaintiff's offered evidence does not show that Dalton
knew of the purported disability before the decision was made
to change Plaintiff's position. Defendants argue that
Plaintiff does not identify her supervisor by name, to whom
she contends she disclosed her cancer history, or show that
her supervisor was involved in the decision to reduce her
work. (Doc. 36, p. 5).
Defendants state that it is “undisputed that at least
by January 6, 2019, Dalton had decided to implement a
reduction in force to address the sharp decline in patient
attendance at the IOP, which included moving Plaintiff to
PRN”. (Doc. 36, p. 6 (citing Doc. 31-4, pp. 76-77; Doc.
36-3, ¶¶ 19-20; Doc. 36-5, ¶¶ 10-13)).
Plaintiff testified that it was not until January 11, 2017,
that she advised Dalton about her history with breast cancer.
(Doc. 36, p. 6 (citing Doc. 31-3, p. 144)). Defendants point
to the record that “clearly reflects” that three
positions (a nurse, Plaintiff as a therapist, and a
driver” were selected for the reduction in force. (Doc.
36, p. 6 (citing Doc. 36-5, ¶¶ 10-13; Doc. 36-2,
¶¶ 10-15, Doc. 36-3, ¶¶ 19-20)).
Defendants argue that an employer is not required to foresee
the future, and to allow any plaintiff to succeed on a
disability claim “under these circumstances”
would essentially mean that all an employee must do is
“show up” for a termination meeting and
immediately report a medical condition, thwarting termination
of his/her employment. (Doc. 36, p. 6 (citing Windham v.
Harris Cty., Texas, 875 F.3d 229, 236 (5th Cir. 2017)).
Defendants rely upon Hedberg v. Indiana Bell Tel.
Co., 47 F.3d 928 (7th Cir. 1995), where the employer
offered affidavits evidencing that the decision to terminate
the plaintiff's employment was made before the disability
was disclosed to the employer, and the plaintiff could not
offer evidence to controvert the affidavit testimony. (Doc.
36, pp. 6-7).
argue that the reduction in force was a legitimate,
nondiscriminatory reason to change Plaintiff's
employment. (Doc. 36, p. 7). Defendants contend that
“the record clearly reflects” that Defendants saw
a “substantial drop” in patient attendance in
December 2016 and that the trend would continue for up to six
months. (Doc. 36, p. 7 (citing Doc. 36-3, ¶ 17)).
Defendants argue that the evidence supports that the decline
in patient attendance occurred for four months and that
Defendants “fell behind” in budget by “$30,
000 in revenue per month”. (Doc. 36, pp. 7-8 (citing
Doc. 36-3, pp. 8-9)). The reduction in force of three
employees, including Plaintiff, was discussed in a conference
call on January 6, 2017. (Doc. 36, p. 8 (citing Doc. 36-3,
¶ 20; Doc. 36-5, ¶¶ 12-13)). The selection of
the employees for the reduction in force was based on
seniority “in accordance with the Hospital's
policy”. (Doc. 36, p. 8 (citing Doc. 36-5, ¶¶
8, 15; Doc. 31-3, pp. 92, 99-100)).
contend that because Plaintiff cannot show that her change in
employment status was discriminatory, she cannot support a
claim of constructive discharge. (Doc. 36, p. 8). Defendants
argue that Plaintiff's position that Dalton offered the
change in position until Plaintiff was able to find another
job does not meet the burden of proving a claim of
constructive discharge. A reasonable employee would not have
felt compelled to resign. Defendants argue that two other
employees did not feel compelled to resign in the same
circumstances. (Doc. 36, p. 9).
response to Defendants' argument on constructive
discharge is that her position was different than the other
two employees made the subject of the alleged reduction in
force and that the other two employees were given a
guaranteed number of hours per week that they worked at the
part-time position, whereas Plaintiff claims she was not.
Defendants argue that the selection of the three employees
was directly tied to the number of patients attending each
day and the ratio of staff to the number of patients. (Doc.
36, p. 9 (citing Doc. 36-3, ¶ 6)).
Plaintiff's Reply (Doc. 40)
to Defendants' challenge to the consideration of the
deposition of Hannie, Plaintiff argues that Hannie's
declaration should be considered just like “any of the
multiple declarations submitted by the Defendants”.
(Doc. 40, p. 1). Also, Plaintiff claims that Hannie's
deposition testimony, audio recording and declaration are all
inconsistent; therefore, they should all be considered.
(Id.). Lastly, Plaintiff argues that Hannie
“authenticated” his declaration and audio
recording during his deposition. (Doc. 40, pp. 1-2).
Plaintiff does not address Hannie allegedly leaving his
deposition before Defendants had an opportunity to
whether Oceans Healthcare, LLC and Oceans Acquisition, Inc.
are “employers” under the ADA, Plaintiff argues
that Hannie testified that he was the corporate human
resources director “of all of the Oceans facilities in
Louisiana”. (Doc. 40, p. 2 (citing Doc. 31-4, p. 23)).
Plaintiff infers that Hannie's testimony evidences that
he acted on behalf of Oceans Healthcare, LLC and Oceans
Acquisition, Inc., in addition to the Hospital, in
participating in the changing of Plaintiff's employment
argues that Dalton and Rhonda Arrington, Regional Human
Resources Director, both testified that they discussed
Plaintiff's cancer disclosure and the possible
ramifications it may have on the “previous
decision” to reduce her hours; therefore, Plaintiff was
“regarded as” being disabled. (Doc. 40, p. 2
(citing Doc. 32-4, p. 4; Doc. 32-6, p. 4)). Further, Dalton
contacted human resources to discuss Plaintiff's medical
condition and whether it would prejudice the decision to
reduce Plaintiff's hours. (Doc. 40, pp. 2-3). Combined
with Hannie's testimony that Dalton changed
Plaintiff's employment out of a concern that she would
miss work due to cancer, Plaintiff argues that this evidences
the element of being “regarded as” disabled.
(Doc. 40, p. 3).
contends that “Defendants cannot establish with
collaborating [sic] evidence when the decision to reduce
Plaintiff to PRN was actually made”. (Id.).
Plaintiff suggests that the record reflects
“aggravating factors” of constructive discharge,
such as Defendants' request for test results, the
reduction in employment status without a guarantee of hours,
and the statement “until you get a new job”.
(Id.). Plaintiff then states, “Defendant
should impute unreasonableness when Plaintiff rejected Ms.
Dalton's offer that reduced her fulltime employment to
‘at will' position with no guarantee of
hours”. (Id.). (Plaintiff seems to suggest
that a “fulltime ...