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Grant v. Oceans Healthcare, LLC

United States District Court, M.D. Louisiana

December 9, 2019

WANDA L. GRANT
v.
OCEANS HEALTHCARE, LLC AND OCEANS ACQUISITION, INC.

          RICHARD L. BOURGEOIS, JR. MAG. JUDGE.

          RULING AND ORDER

          JOHN W. deGRAVELLES UNITED STATES DISTRICT JUDGE.

         This 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.

         I. Factual Background

         Plaintiff 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.).

         Plaintiff 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).

         When 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).

         On 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. (Doc. 32-4).

         Plaintiff 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.

         Plaintiff 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).

         II. Relevant Standard - Motion for Summary Judgment

         “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). 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. 1994). Further:

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 the motion.

Int'l Shortstop, Inc. v. Rally's Inc., 939 F.2d 1257, 1263 (5th Cir. 1991).

         III. Discussion

         A. Plaintiff's Motion for Partial Summary Judgment (Doc. 31)

         On her 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.

         1. Plaintiff's Memorandum in Support (Doc. 31-2)

         Plaintiff 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)).

         Plaintiff 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)).

         Plaintiff 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.

         Next, 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)).

         Plaintiff 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, p. 10).

         According 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)).

         2. Defendants' Opposition (Doc. 36)

         Defendants 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).

         Defendants 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).

         Although 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).

         Because 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)).

         Defendants 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).

         Specifically, 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).

         Defendants 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)).

         Defendants 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).

         Plaintiff's 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)).

         3. Plaintiff's Reply (Doc. 40)

         Pertaining 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 cross-examine him.

         Regarding 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 status.

         Plaintiff 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).

         Plaintiff 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 ...


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