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Stewart v. Physicians Support Services, Inc.

United States District Court, N.D. Oklahoma

September 26, 2017




         I. Background

         In this employment discrimination action, the plaintiff, Donna Stewart, asserts claims under the Family and Medical Leave Act of 1993 (29 U.S.C. § 2601, et seq.) (FMLA) and Title VII, 42 U.S.C. 2000e, for alleged retaliation, interference with FMLA rights, and intentional infliction of emotional distress.

         Stewart began her employment with the defendant, Physicians Support Services, Inc. (PSSI), on October 26, 2010. She was a Patient Services Representative in the cardiology clinic office. Her position involved checking-in patients, taking insurance information, and performing associated duties. Christine Adams, who managed several PSSI offices, was Stewart's manager.

         Plaintiff took medical leave under the FMLA starting July 20, 2012 to have knee surgery, and she returned to work on August 13, 2012. After returning from knee surgery, Stewart claims that she continued to exercise intermittent leave for physical therapy, which ended on November 1, 2012. (Doc. 18-1 at 15 [Dep. p. 34]). In early November, 2012, in the presence of Kelley Dressler and Stewart, Susie Davis, who was a PSSI office coordinator, instructed a black co-worker, Lori Tallent, to stop using a hallway leading to patient rooms. Stewart alleges that this directive was racist, and that she, Dressler, and Tallent discussed it at the time. Stewart did not discuss the incident with anyone else and did not report anything to her manager (Adams) or to Human Resources.

         Stewart cannot recall any PSSI supervisors making derogatory comments about Stewart taking time off for surgery or physical therapy, and she was never refused time off. (Doc. 18-1 at 25-38). However, she asserts that Adams reprimanded her, by email on November 12, 2012, for taking 30-minute lunch breaks instead of an hour and then leaving work 30 minutes early. In that email, Adams directed Stewart to obtain advance approval for any adjustments to her schedule. In the months before her employment was terminated, Stewart had a number of disagreements with other employees. Stewart frequently complained about other employees and Adams believed that Stewart was trying to act like a manager in that Stewart attempted to give directions to her coworkers. Adams believed that Stewart continually raised excuses, avoided responsibility, and disrespected Adams's authority. (Doc. 18, ¶ 20). On November 19, 2012, Adams investigated certain instances of Stewart's behavior and found that she had engaged in rude, disrespectful, unprofessional, and other inappropriate conduct. (Doc. 18-3, ¶ 24). On the same day, Davis and Adams met with Stewart and gave her a Formal Written Warning concerning her continued behavior. They advised her that any further conduct could result in termination. Id. Stewart denied all allegations. (Doc. 18-3, ¶ 25).

         According to PSSI, after the written warning, Stewart had additional incidents with another employee, and Stewart directed allegedly inappropriate comments towards Tallent, calling her “half-and-half” and “creamy.” (Doc. 18-3, ¶ 28). PSSI has presented evidence that Adams viewed Stewart's conduct to be disruptive, confrontational, and disrespectful, and as undermining her authority. (Doc. 18-3, ¶¶ 7-12). Adams ultimately discussed Stewart's behavior with Human Resources Generalist, Jude Terrones, and they decided to terminate Stewart's employment based on an ongoing pattern of unacceptable behavior. (Doc. 18-3, ¶ 29). Stewart's employment was terminated on December 4, 2012.

         Stewart claims that PSSI terminated her employment in retaliation for reporting an allegedly racist comment by Davis to Tallent, in violation of Title VII. She also contends that PSSI interfered with her right to take FMLA leave and terminated her in retaliation for taking leave. Stewart also asserts a state law claim for intentional infliction of emotional distress (IIED).

         II. Summary Judgment Standards

         Summary judgment is appropriate “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); see Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). “[S]ummary judgment will not lie if the dispute about a material fact is ‘genuine, ' that is, if the evidence is such that a reasonable jury could return a verdict for a nonmoving party.” Anderson, 477 U.S. at 248. The courts thus determine “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.” Id. at 251-52. The non-movant's evidence is taken as true, and all justifiable and reasonable inferences are to be drawn in the non-movant's favor. Id. at 255. These general summary judgment standards apply to plaintiff's employment claims. See Tabor v. Hilti, Inc., 703 F.3d 1206, 1215 (10th Cir. 2013).

         III. Analysis

         A. Title VII retaliatory termination claim

         Stewart asserts a claim for retaliatory termination under Title VII, based upon her allegation that she “made a complaint to her supervisor about a discriminatory comment regarding an African American coworker, ” and “[w]ithin approximately a month, she was subsequently terminated for a reason that was untrue.” (Complaint, Doc. 2-1 at 4-5). Title VII makes it unlawful to terminate an employee for engaging in a protected activity. A plaintiff proves a Title VII violation “either by direct evidence of discrimination or by following the burden-shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792 . . . (1973).” Khalik v. United Air Lines, 671 F.3d 1188, 1192 (10th Cir. 2012). In the absence of direct evidence of discriminatory intent, the Court must analyze the evidence under McDonnell Douglas. Riser v. QEP Energy, 776 F.3d 1191, 1199-1200 (10th Cir. 2015).

         Under the McDonnell Douglas burden-shifting framework, a plaintiff must first establish a prima facie case of retaliation. The plaintiff's burden at the prima facie stage requires only a “small amount of proof necessary to create an inference” of discrimination or retaliation, by a preponderance of the evidence, and the burden is “not onerous.” Smothers v. Solvay Chem., Inc., 740 F.3d 530, 539 (10th Cir. 2014) (quoting Orr v. City of Albuquerque, 417 F.3d 1144, 1149 (10th Cir. 2005)). If the plaintiff meets her prima facie case, then the defendant “must offer a legitimate, non-retaliatory reason for [its] employment action” against the employee. Vaughn v. Villa, 537 F.3d 1147, 1150 (10th Cir. 2008) (quoting Metzler v. Fed. Home Loan Bank of Topeka, 464 F.3d 1164, 1170 (10th Cir. 2006)). This burden is “one of production, not of persuasion.” Smothers, 740 F.3d at 539 (quoting E.E.O.C. v. Horizon / CMS Healthcare Corp., 220 F.3d 1184, 1191 (10th Cir. 2000)).

         Assuming the employer meets the burden of showing a non-retaliatory reason for the adverse employment action, then the plaintiff may defeat summary judgment only by showing that “there is a genuine dispute of material fact as to whether the employer's proffered reason for the challenged action is pretextual - i.e., unworthy of belief.” Randle v. City of Aurora, 69 F.3d 44, 451 (10th Cir. 1995). Pretext can be shown by demonstrating “such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer's proffered legitimate reasons for its action that a reasonable factfinder could rationally find them unworthy of credence and hence infer that the employer did not act for the asserted non-[retaliatory] reasons.” Vaughn, 537 F.3d at 1153 (quoting Rivera v. City & Cty. Of Denver, 365 F.3d 912, 925 (10th Cir. 2004)).

         To establish a prima facie case of retaliation, the plaintiff must produce evidence to show that (1) she engaged in a protected activity; (2) she suffered a material adverse action; and (3) there was a causal connection between the protected activity and the adverse action. Thomas v. Berry Plastics Corp., 803 F.3d 510, 514 (10th Cir. 2015); see also Argo v. Blue Cross and Blue Shield of Kansas, Inc., 452 F.3d 1193, 1202 (10th Cir. 2006). Stewart's employment was terminated, which is an adverse employment action satisfying the second element.

         In support of the first element - that she engaged in protected activity - Stewart asserts that she perceived Davis's instruction to Tallent, to stop using a hallway leading to patient rooms, as racist, and there was apparently some discussion about the comment with Dressler and Tallent at the time it was made:

Q. There's a statement in [a document submitted to the EEOC] that . . . “About a month or less before I was terminated, I reported a discriminatory comment made to an African American coworker, Lori Tallent, by our supervisor, Susie Davis.” Did I read that correctly?
A. Well, I reported it to Kelly Dressler. We were all - Dressler. We were all there, but it was not a formal - I ...

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