The opinion of the court was delivered by: Honorable Paul D. Borman United States District Court
OPINION AND ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT (DKT. NO. 33)
This matter is before the Court on Defendants Ciena Healthcare Management, Inc., McBain Nursing Center, LLC and David Boslooper's Motion for Summary Judgment. (Dkt. No. 33.) Plaintiff's filed a Response (Dkt. No. 36) and Defendants filed a Reply (Dkt. No. 37.) The Court heard oral arguments on Thursday, April 15, 2010. For the reasons that follow, the Court GRANTS Defendants' motion.
Plaintiff, a former employee at the Autumnwood nursing home in McBain, Michigan, alleges in her Complaint that Defendants discriminated against her on the basis of her gender when they offered her a choice between a demotion or resignation. Plaintiff alleges that she rejected both options, and was discharged. Plaintiff claims that Defendants' decision to offer Plaintiff a transfer was made two days after Defendant Boslooper, an avowed sexist, expressed his opinion that Plaintiff was an inferior employee because she was a woman and should be fired. Plaintiff claims that the decision to offer her a transfer (which Plaintiff argues was an adverse employment decision) was directly influenced by Defendant Boslooper's sexist remarks and therefore her discharge was based at least in part on Plaintiff's gender.
Defendants respond that Defendant Boslooper was not the decision maker regarding Plaintiff's transfer and that Plaintiff's steadily declining job performance, not her gender, was the basis for Plaintiff's supervisor's decision to offer Plaintiff a different position. Defendants also respond that Plaintiff was reassigned and did not suffer an adverse employment decision and cannot show that she was replaced by a male. Defendants further respond that Defendant Ciena was not Plaintiff's employer, that McBain and Ciena cannot be considered joint employers, and that therefore Defendant Ciena should be dismissed.
A. Plaintiff's Employment with McBain
Plaintiff began working as the Accounts Receivable/Resident Business Office Manager at McBain in January, 1977. (Pl.'s Resp. Ex. 1, Mitchell Dep., 30-32; Defs.'s Mot. Ex. E.) Plaintiff described her job duties as follows:
Did accounts receivable, which was maintaining records for all monies coming into the facility, balancing bank statements with what I had posted in the computer, admission packet, putting all information in the computer for billing purposes and for medical purposes, insurance information. Everything on the resident when they came into the facility and went in to the computer I put it all in. I met with the family members. I did the admission packet. Got everything signed. I would do mail. When mail would come the administrator would go through it. Any checks for anything that came into that facility came to me; I posted them, I deposited them and I kept track of them. (Defs.'s Mot. Ex. A, Mitchell Dep. 44-45; Defs.'s Mot. Exs. B, C.) Plaintiff testified that she was responsible for billing private pay residents, but that Ciena was responsible for billing Medicare and Medicaid. (Id. at 45.) If private pay residents were not paying, Plaintiff was responsible for contacting the family to try to collect payment. (Defs.'s Mot. Ex. A, Mitchell Dep. 46.) If Plaintiff was having trouble with a particular private pay resident, she was to contact David Boslooper, the Ciena employee in charge of private pay collections who reported directly to Sandy Paynter. (Id; Defs.'s Mot. Ex. P, Echler Dep. 13.) Plaintiff was also responsible for managing the residents' trust funds, and disbursing funds upon a resident's request. (Defs.'s Mot. Ex. A, Mitchell Dep. 50.) Plaintiff was partially responsible for month-end closings, which she would run and overnight to Ciena for final close of the month billings. (Id. at 52.)
From 2001 to 2007, Plaintiff's immediate supervisor was Dan Echler, who was then the administrator of the McBain facility. (Defs.'s Mot. Ex. P, Echler Dep. 18.) Plaintiff received multiple pay raises during this period of time, most of which were recommended by Mr. Echler and approved by the CFO of Ciena. (Pl.'s Resp. Ex. 7.) Plaintiff also received many good performance evaluations. (Pl.'s Resp. Exs. 6-11.) On June 21, 2006, Ms. Paynter sent an email to Mr. Echler, who was still Plaintiff's administrator at the time, indicating that Ms. Paynter had been reviewing Plaintiff's job performance with the CFO of Ciena, Anis Kahn, and that Ciena wanted to be sure that Plaintiff received a pay increase to $15.50/hour to show appreciation for Plaintiff and to demonstrate their commitment to keeping her as a long term employee. (Pl.'s Resp. Ex. 8.) While most of Plaintiff's reviews during this time were very good, she was given a written warning in September, 2005 for failure to keep her administrator, Mr. Echler, apprised of problematic collection cases, "placing the facility in danger of not recovering payments timely." (Defs.'s Mot. Ex. E.)
In October, 2007, Mr. Echler became the Regional Director of Operations for Ciena, employed directly by Ciena, and Shannon Reed replaced Mr. Echler as administrator at McBain. (Pl.'s Resp. Ex. 2, Deposition of Shannon Reed, October 23, 2009, p. 6; Pl.'s Resp. Ex. 3, Echler Dep. 9, 11.) Shortly after, Plaintiff began to experience some problems with her job performance. Ms. Reed, Plaintiff's immediate supervisor at McBain, testified that Plaintiff was not properly conducting initial intakes, not following up on families who stated that they were pursuing and filing Medicaid applications, not following up with the Michigan DHS on applications that were filed, and not keeping Ms. Reed and Ciena's accounts receivables department aware of what was happening with delinquent private pay files, all of which resulted in excessive aging in McBain's private accounts. (Defs.'s Mot. Ex. Q, Reed Dep. 36, 44-48, 56.) Ms. Reed testified that Plaintiff was warned in March or May, 2008, that if her account agings did not improve, disciplinary action was an option. (Defs.'s. Reply, Ex. AA, Reed Dep. 93-94.)
Mr. Echler, who was the Regional Director at the time of the decline in Plaintiff's performance, concurred with Ms. Reed and noted that Plaintiff was not handling the delinquent private pay accounts appropriately, which were in arrears close to $190,000.00 as of July, 2008. (Defs.'s Mot. Ex. K; Ex. A, Mitchell Dep. 133.) Mr. Echler also criticized Plaintiff because she was not pressing hard enough on the families to collect and she was not getting corporate (Ciena) involved as soon as it became apparent that there were problems. (Defs.'s Mot. Ex. P, Echler Dep. 49.) Mr. Echler testified that this amount of arrearage was dramatically out of line with other comparable facilities, whose arrears were typically under $25,000, and significantly higher than when he was the administrator at McBain. (Id. at 58-59.) Recognizing that this significant arrearage was the result of a few difficult cases, Mr. Echler stated that Plaintiff still should have taken corrective steps to get Ciena involved and to establish payees, through the court system if necessary, long before the amounts escalated. (Id. at 49-50.) Plaintiff states that her agings historically were well within the normal range but admitted that, as a result of 4 difficult cases, she "temporarily deviated from the norm." (Pl.'s Resp. 3-5.)
Mr. Echler's general impression of Plaintiff was that she was on "the middle ground" in terms of her professionalism and was a little "rough around the edges." (Defs.'s Mot. Ex. P, Echler Dep. 18.) Mr. Echler testified that organization was not Plaintiff's strong suit and that he found her lazy, preferring to "gossip" and go "out back smoking" rather than do her job. (Id. at 56.) Mr. Echler had written Plaintiff up in 2005 for failure to keep corporate apprised of problem cases, and for putting the facility at risk of not recovering timely payment. (Defs.'s Mot. Ex. E.)
Plaintiff does not deny that there were significant private pay amounts in arrearage in July, 2008, but Plaintiff explains in great detail in her brief and her Affidavit that this was the result of 4 isolated, difficult cases. Plaintiff states that both Ms. Reed and Mr. Echler were aware of these cases by virtue of the monthly reports that were sent to Ciena which would have documented these cases and these amounts. (Pl.'s Resp. Ex. 4, Mitchell Aff. ¶¶ 19, 22-24.) Plaintiff also states in her deposition that problematic cases were really not her responsibility, but were the responsibility of Mr. Boslooper, collections manager for Ciena. (Id. ¶ 19.)
B. Plaintiff's Dealings with Mr. Boslooper
Mr. Boslooper was the collections manager responsible for private collections at Ciena. (Pl.'s Resp. Ex. 3, Echler Dep. 13.) Mr. Boslooper is no longer employed by Ciena. (Id. at 13.) Mr. Boslooper's duties as collections manager included auditing the bookeepers of the various facilities managed by Ciena, verifying that the facilities were following Ciena's policies and procedures on collections and securing guardianships and conservatorships from the court when necessary.
(Defs.'s Mot. Ex. S, Boslooper Dep. 10-13.) McBain was one of the facilities over which Mr. Boslooper had auditing responsibilities and Plaintiff, as the accounts receivable manager at McBain, was under the auditing supervision of Mr. Boslooper. Mr. Echler, as the regional director of northern homes, was employed by Ciena, and was Mr. Boslooper's supervisor. (Defs.'s Mot. Ex. S, Boslooper Dep. 12.)
Plaintiff states that she first began to complain about Mr. Boslooper in October, 2007 when he became angry with her because she would not come help him one day when he had car trouble while on his way to McBain for a surprise audit. Plaintiff claims that when she told Mr. Boslooper that she couldn't come to help him, he told her she "better watch her back." (Pl.'s Resp. Ex. 1, Mitchell Dep. 89-90.) Plaintiff reported this incident to Mr. Echler who told her not to worry about it, he would handle it. (Id.) Plaintiff states that at a meeting at Ciena in May, 2008, attended by Plaintiff, Ms. Reed, Mr. Boslooper, Ms. Paynter and Mr. Kahn, Mr. Boslooper attacked Plaintiff in front of the group on the outstanding private collection amounts at McBain and accused her of not doing her job. (Id. at 91-92.) Plaintiff stated that Mr. Kahn turned on Ms. Reed in the meeting and blamed her for not watching over Plaintiff to make sure Plaintiff was doing her job correctly. (Id. 92.) Plaintiff also testified that at this meeting, or at another meeting at about this time, Mr. Boslooper remarked that he needed to do something to get Plaintiff "off [her] fat ass to do [her] job because all [she] did was sit with [her] thumbs up [her] ass." (Id. at 87.)
Plaintiff states that her next encounter with Mr. Boslooper followed a hearing in court on July 23, 2008 in Missaukee Probate Court. (Defs.'s Mot. Ex A, Mitchell Dep. 65.) Plaintiff was in court on petitions for conservatorships for three of her aging accounts. (Id.) Mr. Boslooper arrived late that day, after the hearing on the first petition had begun, because Ms. Reed had given him inaccurate directions to the court. Mr. Boslooper became angry with Plaintiff, who had been present at the hearing with an attorney, and accused her of undermining him by accepting the Judge's recommendation that certain individuals be appointed as guardians for certain McBain residents. Apparently unbeknownst to Plaintiff, Mr. Boslooper had already made other guardianship arrangements for at least one of Plaintiff's aging accounts. (Pl.'s Resp. Ex. 1, Mitchell Dep. 68.) According to Plaintiff, following the hearing, during which Mr. Boslooper allegedly angered the judge with his aggressive behavior, Mr. Boslooper assailed Plaintiff for her conduct at the hearing, telling her "that's what he gets for thinking a woman could do this job. He should have known a woman wouldn't be able to handle this. What was he thinking thinking a woman could do this, and that he was going to recommend to [Mr. Kahn] that [Plaintiff] be terminated." (Pl.'s Resp. Ex. 1, Mitchell Dep. 65-72, 82.)
Plaintiff testified that after the hearing, back at McBain in a meeting with Plaintiff and Ms. Reed, Mr. Boslooper stated that he was going to recommend to Mr. Kahn that Plaintiff be fired. Plaintiff testified that Ms. Reed told Plaintiff to report the incident to Mr. Echler, which Plaintiff did in a phone call on her way home from work that day. Plaintiff testified that she told Mr. Echler that Mr. Boslooper had made comments about sending a woman to do the job. (Id. at 83-86.) Plaintiff never made a formal complaint about the events that transpired at probate court on July 23, 2008. (Id. at 88.)
Mr. Boslooper testified that "from 2003 up to 2007, [Plaintiff] was a good employee. Her audits were good. Her performance was good. She was doing a good job." (Pl.'s Resp. Ex. 13, Boslooper Dep. 29.) Mr. Boslooper testified that at the end of 2007 and the beginning of 2008, Plaintiff was "an emotional wreck" and "everything started going downhill at McBain." (Id. at 29- 30.) Plaintiff and her supervisor, Ms. Reed, attended a meeting with Ciena management prior to the July 23, 2008 Missaukee Probate Court hearings, during which Mr. Boslooper assured Ciena management that he would get the McBain agings under control: "And yes, I went on record with [Mr. Kahn] that I was going up to these hearings and that we will get it collected, okay, because that's the bottom line. He said okay. And he threw the aging and walked out. He was disgusted with everybody. He told everybody I'm disgusted. He looked at [Ms. Reed], he looked at [Plaintiff], me and [Ms. Paynter]. And he didn't say it to anybody in particular. He was just disgusted with everybody in the room on their aging at McBain." (Defs.'s Mot. Ex. S, Boslooper Dep. 98.) So, on July 23, 2008, Mr. Boslooper was attending the Missaukee Probate Court hearings with the specific directive to get the aging account problems at McBain under control. He was angry and upset that day because he felt that he had been misled by Plaintiff as to what was going to transpire at the hearings and he felt that "not one thing went correctly on what I needed to get done. . . . My whole objective was in the toilet. We didn't receive any money and we're still not straight on how we're going to solve these problems when I get back to tell [Ms. Paynter] and [Mr. Kahn]." (Pl.'s Resp. Ex. 13, Boslooper Dep. 85-86.)
Mr. Boslooper admitted that after the July 23, 2008 hearings, he met with Ms. Reed and told her that he was upset by Plaintiff's behavior in court that day. (Pl.'s Resp. Ex. 13, Deposition of David Boslooper, October 19, 2009, p. 86.) Ms. Reed recalled the meeting with Mr. Boslooper that day and testified that he was angry and swearing and told her that both she and Plaintiff should be fired for allowing the private collections to become so past due and that he had already talked to Mr. Echler about the situation. (Defs.'s Mot. Ex. Q, Reed Dep. 87-88) Ms. Reed testified that Mr. Boslooper accused both Ms. Reed and Plaintiff of undermining his authority. (Id. at 112.) Mr. Boslooper also testified about his call to Mr. Echler to tell him what had happened, in which he indicated to Mr. Echler that he was frustrated with both Plaintiff and Ms. Reed and that they had accomplished nothing that day toward getting the aging accounts on track for collection. (Pl.'s Resp. Ex. 1, Boslooper Dep. at 85-88.) Mr. Boslooper testified that although he complained to Mr. Echler that day about Plaintiff, he did not recommend that Mr. Echler take any employment action against Plaintiff, nor could he because he is in no position to do so:
Q: Yes. Let me interrupt you just a second. During this conversation did you recommend to Dan Eckler [sic] that he take any sort of employment action against Peggy?
A: Oh, no. I'm not in that position to do that. I just reporting [sic] my findings. I don't have no chain of command in reference to Peggy Mitchell. She's hired by the administrator and she could be fired by the administrator People at Ciena, people at the Corporate Office we -- for me, for my job I report to Sandy Paynter and Anis Kahn. And I also informed the RDOs and the administrators on what my findings are.
Q: But Shannon, I guess, would be the last word about the folks --