United States District Court, E.D. Michigan, Southern Division
ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY
JUDGMENT (DOC. 28) AND DENYING PLAINTIFF'S MOTION FOR
PARTIAL SUMMARY JUDGMENT (DOC. 29)
CARAM STEEH UNITED STATES DISTRICT JUDGE
Shelly Allen, a registered nurse who worked for defendant
Lincare, Inc. (“Lincare”), as a traveling
infusion nurse for one year before she was fired allegedly
for excessive absenteeism, brought this race discrimination
suit under Title VII, 42 U.S.C. § 2000e-2(a)(1) and
Michigan's Elliott-Larsen Civil Rights Act
(“ELCRA”), Mich. Comp. Laws §§ 37.2101,
et seq. She also alleges retaliation for filing
internal grievances with her employer, and a complaint to the
Equal Employment Opportunity Commission (“EEOC”),
as well as alleged violations of overtime provisions of the
Fair Labor Standards Act (“FLSA”), 29 U.S.C.
§ 201 et seq. Now before the court are
Lincare's motion for summary judgment, and Allen's
motion for partial summary judgment as to the overtime claim
only. Oral argument was heard on December 21, 2017 and
informs the court's decision here. For the reasons set
forth below, Defendant's motion for summary judgment
shall be granted and Plaintiff's motion shall be denied.
9, 2014, Lincare hired Allen to work as an infusion nurse out
of its Livonia office. Allen was the only African American
nurse assigned to that office. Allen's duties included
making home calls to patients where she would provide a
variety of services including drawing blood, changing
dressings, providing cath care and antibiotics, and more
complicated procedures such as providing immunoglobulin (IG),
hydration, Remicade, enzymes, and steroids. (Pl's. Dep.
at 43-53, Doc. 33 Ex. 1) Allen claims she was provided the
more complicated procedures less often that white nurses
despite her requests for the more challenging work.
Id. at 52-53. Center Manager Krista Hyde hired her,
id. at 133, and Allen reported to her immediate
supervisor, Lucille Walker. (Walker Dep., Doc. 28, Ex. 7 at
2, ¶ 3).
her 90-day probationary period, Allen received exemplary
marks. (Doc. 28, Ex. 5). However, once her probationary
period ended, Allen had a serious absentee problem. According
to Lincare's attendance policy, an employee does not
accrue sick leave until she has completed one year of
eligible service, and vacation time begins to accrue after
six months. After Allen's probation period ended, she was
absent nineteen times, not including the holiday time and
three vacation days she had accumulated, before she was
terminated in June, 2015, for poor attendance, poor
performance, and poor attitude. Prior to her termination, she
was warned several times about her absentee problem.
she received a verbal warning for excessive absenteeism on
October 31, 2014, arising out of her 9 missed days in the
first eight weeks following her probationary period. (Doc.
28, Ex. 11). After calling in sick again, reporting to work
but refusing to perform her duties, and arriving late for an
assignment, Lincare gave Allen a documented verbal warning on
December 1, 2014. (Doc. 28, Ex. 13). Despite the second
warning, Allen's attendance problems continued and she
missed several more days of work, citing the reasons as not
having a car, not feeling well, and experiencing a family
emergency. (Doc. 28, Ex. 14, 16-17). As a result, Lincare
prepared a final written warning on February 16, 2015, which
ironically, it could not deliver to Allen until February 20,
2015, as she left work early on February 17th and did not
report to work on February 18th. (Doc. 28, Ex. 18). Despite
the final written warning, Allen missed work again in April,
refused to respond to her on call duties during that same
month, and again on June 8, 2015. (Doc. 28, Ex. 9, 19). As a
result of these continued excessive absences, and for other
reasons as well, Lincare terminated Allen on approximately
June 9, 2015. (Doc. 33, Ex. 16). Allen claims the write-ups
contained erroneous information. Lincare concedes that there
were some typographical errors in her disciplinary warnings.
For example, the documented written warning states that Allen
was absent on September 11, 2014 when in fact she was absent
on September 17, 2014, and the final written warning states
that Allen was absent on January 17 and 18, 2015, when in
fact she was absent on January 19 and 20, 2015. But Allen
does not dispute that she was absent nineteen times in the
nine months she worked after her probationary period ended.
Plaintiff's Poor Attitude
began noticing a decline in Allen's attitude near the end
of her probationary period when her marks began to slip. In
September, 2014, Allen was assigned to office work because of
a medical restriction and one of her assignments was to
identify patient locations on a map. Allen complained about
the assignment. (Doc. 28, Ex. 20 at 3, ¶ 7). One of her
co-workers complained to Walker that Allen was
“bullying” her. (Doc. 28, Ex. 23). Lincare also
alleges that on one occasion, Allen refused a work assignment
saying “I'm not [expletive] doing it.” (Doc.
28, Ex. 24). Allen denies this. Lincare also alleges that
Allen was disrespectful of management. On another occasion,
Allen walked out of meeting with her supervisors and went
home claiming to be ill. (Doc. 28, Ex. 16). Allen complained
about the schedule repeatedly. (Doc. 28, Ex. 20 at 3, ¶
8). Lincare also alleges that Allen was disrespectful and
dishonest, and that her excuses for missing work were not
always true. For example, on one occasion she claimed to have
access to a car while on call, but in fact, did not. On
another occasion, she claimed she could not work because she
lacked access to a car, when in fact she had one available.
Id. at 3, ¶ 9. In addition to attendance
problems, Lincare's final written warning to Allen cited
her lack of access to a car while on call was a major
infraction under the company's policies, and that Allen
was not a good team player as she was not responsive to
scheduling changes and was critical of management's
decisions regarding assignments. (Doc. 28, Ex. 18).
Complaints of Racial Discrimination
August, 2014, Allen began complaining to her supervisors,
Walker and Hyde, that she was receiving less complicated
assignments than other nurses which required her to travel
more and to see more patients. (Doc. 33, Pl. Dep., Ex. 1 at
54). Allen claims there was no change in her assignments at
that point, so in October, 2014, she complained to Area
Manager, Sue Botello, who forwarded her complaint to Human
Resources Manager, Linda Feller. Id. at 56-57. Allen
claims she began to receive more complicated assignments for
a while after making her internal complaint, including
receiving IGs, but that the change was short-lived.
Id. at 58. On December 29, 2014, Allen filed a
formal charge of discrimination with the EEOC and the
Michigan Department of Civil Rights alleging that she was
being denied preferential assignments because of her race.
(Doc. 33, Ex. 6). The EEOC dismissed the complaint and issued
a right to sue notice on June 9, 2015. (Doc. 28, Ex. 34).
Allen filed a second EEOC complaint challenging her
termination on July 15, 2015. (Doc. 28, Ex. 35). The EEOC
declined prosecution and issued a right to sue letter on
April 19, 2016. (Doc. 28, Ex. 36).
disputes that Allen received less favorable assignments than
other nurses. Lincare has produced nursing clinical activity
logs showing that from October, 2014, when Allen was removed
from her office only restriction, until her termination, she
was assigned to see 27 IG patients, or approximately two to
five such patients per month, or an average of 3.0 IG
patients per month. (Doc. 34, Ex. B). During this same
period, four other infusion nurses averaged 0, 2.7, 3.6, and
4 IG patients per month. Id.
addition to the allegedly discriminatory assignment of
nursing duties, Allen argues that she has three other
instances of direct proof of Lincare's racial bias
against her. First, and at the crux of her complaint, she
relies on a comment that Walker admittedly made when she
referred to her as the “ebola” nurse when
introducing her to a new nurse in November, 2014. (Doc. 33,
Walker Dep., Ex. 2, 3 at 103-04). Walker claims the comment
was meant to be funny and was based on the fact that Allen
was wearing a surgical mask at the time. Id. at 103.
Allen denies that she was wearing a mask at the time that the
comment was made and claims it is evidence of racial bias.
(Doc. 33, Pl. Dep., Ex. 1 at 126, Ex. 2). When Allen and
Walker later discussed the comment, Allen apologized and
hugged her. (Doc. 33, Pl. Dep., Ex. 1 at 127).
she relies on a comment that Walker told Allen,
“don't touch me, I find that very condescending
when you touch me.” Id. at 128. Third, during
her deposition, she testified that a co-worker Kim Van Berkel
threw papers at her and cursed her, yet Walker and Hyde
failed to take corrective action. Id. at 130, 135.
Although Allen testified to the alleged incident at her
deposition, in the argument section of her brief, she does
not mention it and Lincare has not responded to the claim.
Fourth, Allen claims that during a disciplinary meeting,
Walker instructed her to “sit or kneel.” A review
of Allen's deposition transcript, however, puts the
comment in a different light. As Allen herself testified,
when she arrived at the disciplinary action she asked Walker
for permission to sit down, and Walker responded, “oh,
you can sit or kneel, whichever suits you best.”
Id. at 116.
addition to the proofs which Allen claims shows direct
evidence of discrimination, Allen also argues she can show
circumstantial evidence of discrimination because two other
Lincare employees, one an administrative assistant, the other
an infusion nurse, also had attendance problems but were not
dismissed. Lincare responds that those employees were not
similarly situated as their employment problems were not as
severe, and unlike, Allen, there were no other issues
regarding their performance or attitude.
alleges that she was an hourly employee at the rate of $34
per hour and that Lincare violated the FLSA by failing to pay
her overtime. Lincare responds that Allen was paid an annual
salary of $70, 720, as well as a $20 stipend when she was on
call on a week night, and $50 when on call on a Saturday or
Sunday, as well as pay on an hourly basis at $34 per hour
when she saw patients while on call, or when she worked an
extended work day. Allen argues that her pay records show
that she was always compensated at $34 per hour, regardless
of hours worked. The matter is ripe for decision on summary
judgment as both parties have submitted earnings statements
for the court's review, as well as deposition testimony
of Allen, Walker, Hyde, and Botello, (Doc. 29, Ex. 2-4, 6),
the affidavit of Lincare's Head of Payroll, Shiraz
Mohammed, (Doc. 32, Ex. 3), and other evidence relevant to
the court's determination.
Standard of Law
Rule of Civil Procedure 56(c) empowers the court to render
summary judgment "forthwith 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 judgment as a matter of
law." See Redding v. St. Eward, 241 F.3d 530,
532 (6th Cir. 2001). The Supreme Court has affirmed the
court's use of summary judgment as an integral part of
the fair and efficient administration of justice. The
procedure is not a disfavored procedural shortcut.
Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986);
see also Cox v. Kentucky Dep't of Transp., 53
F.3d 146, 149 (6th Cir. 1995).
standard for determining whether summary judgment is
appropriate is "'whether the evidence presents a
sufficient disagreement to require submission to a jury or
whether it is so one-sided that one party must prevail as a
matter of law.'" Amway Distributors Benefits
Ass'n v. Northfield Ins. Co., 323 F.3d 386, 390 (6th
Cir. 2003) (quoting Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 251-52 (1986)). The evidence and all reasonable
inferences must be construed in the light most favorable to
the non-moving party. Matsushita Elec. Indus. Co., Ltd.
v. Zenith Radio Corp., 475 U.S. 574, 587 (1986);
Redding, 241 F.3d at 532 (6th Cir. 2001).
"[T]he mere existence of some alleged factual
dispute between the parties will not defeat an otherwise
properly supported motion for summary judgment; the
requirement is that there be no genuine issue of
material fact." Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 247-48 (1986) (emphasis in
original); see also National Satellite Sports, Inc. v.
Eliadis, Inc., 253 F.3d 900, 907 (6th Cir. 2001).
movant establishes by use of the material specified in Rule
56(c) that there is no genuine issue of material fact and
that it is entitled to judgment as a matter of law, the
opposing party must come forward with "specific facts
showing that there is a genuine issue for trial."
First Nat'l Bank v. Cities Serv. Co., 391 U.S.
253, 270 (1968); see also McLean v. 988011 Ontario,
Ltd., 224 F.3d 797, 800 (6th Cir. 2000). Mere
allegations or denials in the non-movant's pleadings will
not meet this burden, nor will a mere scintilla of evidence
supporting the non-moving party. Anderson, 477 U.S.
at 248, 252. Rather, there must be evidence on which a jury
could reasonably find for the non-movant. McLean,
224 F.3d at 800 (citing Anderson, 477 U.S. at 252).