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Allen v. Lincare Inc.

United States District Court, E.D. Michigan, Southern Division

January 10, 2018

SHELLY ALLEN, Plaintiff,
v.
LINCARE INC., Defendant.

          ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT (DOC. 28) AND DENYING PLAINTIFF'S MOTION FOR PARTIAL SUMMARY JUDGMENT (DOC. 29)

          GEORGE CARAM STEEH UNITED STATES DISTRICT JUDGE

         Plaintiff 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.

         I. Background

         On June 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).

         A. Attendance Problems

         During 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.

         First, 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.

         B. Plaintiff's Poor Attitude

         Lincare 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).

         C. Complaints of Racial Discrimination

         In 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).

         Lincare 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.

         In 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).

         Second, 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.

         D. Circumstantial Evidence

         In 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.

         E. Overtime Claim

         Allen 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.

         II. Standard of Law

         Federal 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).

         The 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).

         If the 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).

         III. Analysis

         A. Race ...


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