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Kennedy v. Reid Hospital & Health Care Services, Inc.

United States District Court, S.D. Indiana, Indianapolis Division

September 7, 2017




         This matter is before the Court on Motions for Summary Judgment filed pursuant to Federal Rule of Civil Procedure 56 by Defendants Reid Hospital and Health Care Services, Inc. (“Reid”) (Filing No. 55) and Reid Outpatient Surgery and Endoscopy, LLC (“ROSE”) (Filing No. 58). After experiencing discrimination, harassment, and retaliation at the hands of coworkers and supervisors at Reid and ROSE, Plaintiff Stacy Kennedy (“Kennedy”) was pressured into leaving her position as a nurse at Reid and ROSE. She initiated this lawsuit, asserting claims of discrimination, harassment, and retaliation on the basis of race and disability under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e (“Title VII”), the Civil Rights Act of 1866, 42 U.S.C. § 1981 (“Section 1981”), and the Americans with Disabilities Act of 1990, 42 U.S.C. § 12101 (“ADA”). Reid and ROSE each ask for summary judgment, arguing that Kennedy did not suffer an adverse employment action, and she cannot support a prima facie case for her claims. For the following reasons, the Court grants in part and denies in part Reid's Motion and grants ROSE's Motion.

         I. BACKGROUND

         The following facts are not necessarily objectively true, but, as required by Federal Rule of Civil Procedure 56, the facts are presented in the light most favorable to Kennedy as the non-moving party. See Zerante v. DeLuca, 555 F.3d 582, 584 (7th Cir. 2009); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).

         A. Discrimination and Harassment at Reid Orthopedic Surgery Center

         Kennedy is an African-American female who has been diagnosed with depression, anxiety, and bipolar disorder. Her son and daughter have been diagnosed with Attention Deficit Hyperactivity Disorder (“ADHD”) and other learning disabilities (Filing No. 86-5 at 43-44).

         In October 2011, Kennedy began working as a registered nurse for Tower Specialty Surgery. Tower Specialty Surgery was acquired by Reid and began operating as Reid Orthopedic Surgery Center (“ROC”) in July 2012. Kennedy was the only African-American employee at ROC (Filing No. 86-1 at 1). She worked thirty-two to forty hours per week, but did not have a set schedule. Kennedy's supervisor was charge nurse Kim Padgett (“Padgett”). After Padgett left Reid in December 2012, Misty Harrison (“Harrison”) became the charge nurse and was Kennedy's direct supervisor. Kennedy's next level supervisor was Leslie Ramsey (“Ramsey”) (Filing No. 86-5 at 5-6). Kennedy had positive work performance reviews, which noted that she was meeting Reid's expectations and had a good attitude (Filing No. 86-13).

         When Tower Specialty Surgery was her employer, Kennedy had been permitted to leave early on Wednesdays to take her son to therapy appointments. However, after Reid acquired the business, Kennedy was given a hard time about taking a day off or leaving early on Wednesdays for her son's therapy appointments. If she could not leave work early, her son would have to miss his appointment unless Kennedy could arrange for somebody else to take him. On one occasion, Padgett refused to let Kennedy leave early to take her daughter to the doctor when she was sick, so she had to reschedule the appointment with the doctor. Padgett would not allow Kennedy to adjust her schedule to attend to her children's needs. In contrast, Padgett freely allowed Harrison, a white nurse, to take time off or to adjust her schedule to attend to her child's needs (Filing No. 86-1 at 1).

         Kennedy noted several differences in how she was treated compared to the white nurses. For example, Padgett allowed Harrison to determine her own work schedule, but scheduled Kennedy to come in early to work on Harrison's charting responsibilities. Harrison and Padgett would cover for each other so that they could take restroom and lunch breaks, but they would not cover for Kennedy when she needed to take breaks (Filing No. 86-5 at 12; Filing No. 86-1 at 1- 2).

         In late July 2012, within weeks of starting at Reid, Kennedy complained about this discriminatory treatment to her next level supervisor Ramsey, but Ramsey did not do anything to address these issues. (Filing No. 86-1 at 2.) Sometime between August and October 2012, Kennedy complained to Tina Johnson in Reid's human resources department about the discriminatory scheduling practice and difficulty in getting coverage so that she could take lunch and restroom breaks. Rather than investigating or addressing the problems, Johnson told Kennedy to raise the issues with Ramsey or someone else (Filing No. 86-5 at 13, 19).

         Kennedy complained again to Ramsey about the discriminatory treatment in October 2012, and Ramsey held a staff meeting and explained that the scheduling needed to be fair and consistent. Padgett appeared mad and upset about the meeting. She did not do anything to change the schedule; rather, she continued to allow Harrison to pick her own schedule and required Kennedy to cover for Harrison when she needed to leave work early. After the meeting, Padgett did begin to help with circulating responsibilities (Filing No. 86-1 at 3; Filing No. 86-5 at 13). However, Harrison stopped helping Kennedy in the operating room, and she began printing quotes that were humiliating to Kennedy and taping them to a shared computer (Filing No. 86-1 at 3).

         At the end of December 2012, Padgett left Reid. Harrison was promoted to be the charge nurse in ROC and became Kennedy's direct supervisor. Soon thereafter, in April 2013, Harrison transferred to the emergency room, and Ramsey asked Kennedy to be the interim charge nurse in ROC. Id. at 4. Kennedy was hesitant to accept the position, telling Ramsey that making her the charge nurse would give other nurses, Melodye Dodson (“Dodson”) and Donna Roberts (“Roberts”), more of a reason to harass her. Id. Despite her concerns, Kennedy accepted the position.

         In April 2013, Reid hired Dawn Ulm (“Ulm”) as a circulating nurse to work in ROC three days a week, and hired Amber Welin (“Welin”) (who had been working for Reid on an “as needed” basis) to work in ROC four days a week. Kennedy had previously requested that Ramsey allow her to work a four-day work week instead of a five-day week, but Ramsey had denied her requests. Id.

         In her role as the charge nurse, Kennedy had the responsibility of setting the work schedule for the other nurses. Whenever Dodson and Roberts did not like their work schedule, they simply changed their schedule. When Kennedy complained about this problem to Ramsey, nothing was done to address the problem or require Dodson and Roberts to respect Kennedy's authority as the charge nurse. Ramsey also would not allow Kennedy to set the schedule for Ulm and Welin without asking them what days and times they wanted to work (Filing No. 86-1 at 4-5).

         In April or May 2013, Kennedy directed Dodson and Roberts to stop ‘spiking' (a process of preparing in advance) IV fluid bags and leaving them in the warmer overnight because this practice could cause bacteria to grow faster and increase infection rates. Dodson and Roberts told Kennedy that she was stupid and refused to stop the practice because they had “been doing it [that] way forever.” Kennedy reported the incident to Ramsey, but Ramsey did nothing. Roberts and Dodson refused to follow Kennedy's directions as the charge nurse (Filing No. 86-5 at 9).

         On April 1, 2013, Kennedy went to her doctor for treatment for anxiety and depression and reported that her son has ADD and she was under a lot of pressure at work. (Filing No. 86-12 at 1). She was prescribed CELEXA. Later that month, Kennedy overheard a surgical technician, Natasha Adams, comment on Kennedy's disability. Adams said to two co-workers, “Did you see how Stacy was working today? It was like she was someone else, working all fast. I think she's bipolar.” Kennedy did not report this comment to anyone (Filing No. 86-5 at 26).

         In May 2013, Roberts told Harrison (who was no longer working in ROC) that Kennedy was talking about her, which was not true. That night Harrison sent a harassing text message to Kennedy. She reported the incident to Ramsey the next morning, but Ramsey never said anything to Roberts about making up a story that led to Kennedy being harassed. In late June 2013, Kennedy complained that she was not receiving charge nurse pay like the white charge nurses. Only after her complaint did Reid increase her pay to the charge nurse level, applying it retroactively to April 2013 (Filing No. 86-1 at 5; Filing No. 86-11 at 1).

         On three occasions in August and September 2013, Dodson commented about people with disabilities. She stated that a boy taking medication for ADHD “just needs a good smack upside his head.” Id. at 10. When Kennedy told Dodson that ADHD is a real condition and that her son has it, Dodson commented that, if a kid is bad, it is because the parents are bad and lazy. Dodson made more comments about a patient with ADHD a few weeks later. She went out of her way to leave the area where she was working, put on a hat and shoe covers to be able to go into the operating room where Kennedy was located, and made derogatory comments to Kennedy about ADHD. Kennedy again asked Dodson to stop making derogatory comments about ADHD. Kennedy reported the incident to Ramsey. Ramsey indicated that Dodson had already told her about it and that she would not make the comments again. Within a month or two, Dodson again made multiple comments about patients with mental health impairments coming to ROC on the “short bus” and being “crazy” or “retarded.” When Kennedy complained to Ramsey about the continuing comments, Ramsey did nothing to address it. Id.

         In September 2013, Stacy Ross (“Ross”), a surgical technician, confronted Kennedy and accused her of trying to make Ross look bad in front of a doctor. Ross got in Kennedy's face and used the “F-word.” When Kennedy complained to Ramsey about this incident, Ramsey explained that Ross was aggressive and confrontational and that she had had her own screaming match with her. Ramsey did not address the problem for Kennedy (Filing No. 86-5 at 7; Filing No. 86-1 at 7).

         A few weeks later, Ross was telling a story about a football game to some coworkers while Kennedy was in the same room. Ross used the “N-word” three times while telling the story. Kennedy looked up from her work when she heard the “N-word, ” and observed that Ross was staring at her. (Filing No. 86-5 at 21; Filing No. 86-1 at 7.)

         Kennedy felt that she had to resign from her position as the charge nurse over the operating room because the white employees were not respecting her authority and the responsibility was just too much for her. Ramsey asked Kennedy if she was taking any medications, and Kennedy acknowledged that she was taking medication for depression and anxiety because of the harassment at work. Ramsey responded that she understood why Kennedy would need to take medication because of working with Ross (Filing No. 86-5 at 40; Filing No. 86-1 at 6-7). In late October 2013, Kennedy felt forced to resign from her remaining charge nurse responsibilities in the pre-operation and post-operation areas because of the harassment from Dodson and Roberts and Reid's failure to correct it, as well as the responsibility being too much. Losing her charge nurse position caused a reduction in Kennedy's pay (Filing No. 86-1 at 6; Filing No. 86-5 at 6-7).

         Ulm was promoted to be the charge nurse over the operating room and began ordering Kennedy to help Welin, but she never made Welin help Kennedy. Ulm called and sent text messages to Kennedy while Kennedy was circulating alone, and when Kennedy did not respond, Ulm would send messages demanding that Kennedy text her back as soon as possible. Ulm also sent Kennedy text messages after 8:00 p.m. when Kennedy was at home. If Kennedy did not respond, Ulm would send messages demanding that Kennedy text her back (Filing No. 86-9 at 6).

         With only a five-day notice, Welin quit her job at Reid in September 2013 to return to her old job. Reid rehired Welin the following month despite her lack of giving the required two-week notice of resignation, and she was permitted to work a four-day work week (Filing No. 86-1 at 7- 8). Around this same time in September or October 2013, Ulm complained to Ramsey that she could not perform her charge nurse duties while still fulfilling her circulating duties. Reid hired another fulltime nurse, however she had no experience as a circulator, therefore, she was unable to relieve other nurses for breaks or lunch. Id. at 8.

         In October and November 2013, Kennedy called the human resources department to complain about the discrimination and harassment that she had been experiencing. She left multiple messages but never received a return telephone call (Filing No. 86-5 at 22; Filing No. 86-1 at 8). Because of the discrimination and harassment that she was experiencing at ROC, on October 22, 2013, Kennedy applied for a transfer to ROSE (Filing No. 86-1 at 8; Filing No. 86-15 at 4-6). On November 7, 2013, Ulm gave ROSE a positive reference for Kennedy, stating that she was dependable, punctual, and efficient (Filing No. 86-15 at 3). On November 8, 2013, Kennedy accepted an offer for a job transfer to ROSE and gave ROC her two-week notice (Filing No. 86-5 at 30; Filing No. 86-1 at 8). Kennedy told Ulm that she was transferring because of the hostile work environment and harassment in ROC, which was never corrected (Filing No. 86-1 at 8).

         After submitting her two-week notice to ROC but before transferring to ROSE, Kennedy experienced another incident of harassment with Ross. On November 11, 2013, Kennedy went to the operating room to inform Ross that a doctor wanted a knee brace added to the preference card. Ross was irate and directed the “F-word” at Kennedy. After Ross settled down, Kennedy went back to Ross and asked what was wrong. Ross screamed and cursed and threw sharp objects on the table in front of Kennedy. Charge nurse Ulm was in the room while this occurred, but she did nothing to stop the harassment (Filing No. 86-5 at 16).

         The following morning, Kennedy talked with Dr. Karl Baird, the medical director, and told him that she was nervous to go back to work because of the harassment from Ross. She asked whether she could transfer to ROSE a week early. Dr. Baird denied Kennedy's request and said that she needed to complete her full two-week notice or there might be issues between Kennedy and the doctors at ROSE that could make her working conditions unbearable. Id.

         In mid-November 2013, Ulm and Roberts called Kennedy and fellow nurse, Maribeth Evans, into the office and questioned them about a letter that someone had written concerning poor care that Dodson had given to a patient. Ulm and Roberts threatened Kennedy and Evans that if they found out who wrote the letter, that person would be fired because it was a HIPAA violation. Id. at 24-25. Evans asked others in the department if they also were asked about the letter, and they said they had not been asked about it (Filing No. 86-4 at 3).

         Ulm asked Kennedy to relieve Welin after Kennedy finished a meeting on November 14, 2013. Ulm was not at work on November 14, 2013 so when Kennedy got out of the meeting, she contacted Roberts, the charge nurse on duty, who said that Welin was almost finished and that she did not think it was necessary to relieve her, so Kennedy could go home. The next day, Ulm called Kennedy and yelled at her for not relieving Welin. (Filing No. 86-5 at 17.) Ulm called Kennedy again on November 15, 2013 and told her that Dr. Baird wanted her to be certain that Kennedy finished her two-week period in ROC “or else.” Id. Kennedy told Ulm that she would complete the two-week period but that she could not work with Ross. Ulm continued to schedule Kennedy to work with Ross until she was transferred to ROSE (Filing No. 86-1 at 10).

         Kennedy felt that she could not take any more harassment, so she called Laura Stewart (“Stewart”) in the human resources department on November 15, 2013 to set up an appointment to talk with her. Id.; Filing No. 86-5 at 17. Kennedy also called Tonya Miller (“Miller”) at ROSE to explain what Dr. Baird and Ulm told her and to express her concern about working at ROSE if she would continue to be harassed (Filing No. 86-1 at 10).

         On November 18, 2013, Kennedy met with Stewart in the human resources department and complained about being harassed based on her race and disability and the disability of her son, specifically mentioning Ross, Dodson, Roberts, and Ulm. She also complained that Ramsey failed to do anything to address the harassment and discrimination. From August 2012 through October 2013, Kennedy had reported to Ramsey many times that she was being treated differently because of her race and disability. Stewart told Kennedy that she would conduct an investigation (Filing No. 86-5 at 15-19).

         Stewart met with Ulm on November 19, 2013 and told her that she needed to hold others accountable for their actions and require them to follow Reid's standards. After Kennedy transferred from ROC to ROSE, Ulm gave a written notice of corrective action to Ross on November 25 or 26, 2013 (Filing No. 86-31; Filing No. 86-19).

         November 22, 2013 was Kennedy's last scheduled day to work in ROC, but she took that day off work to address problems that her son was having at school. (Filing No. 86-17; Filing No. 86-1 at 10.)

         B. Discrimination and Harassment at Reid Outpatient Surgery and Endoscopy

         On November 25, 2013, Kennedy began working as a registered nurse at ROSE, which is located on the second floor of the Reid Hospital building (Filing No. 86-1 at 10). On November 27, 2013, about a week after being counseled by Stewart, Ulm contradicted the good reference that she had given to ROSE about Kennedy on November 7, 2013 - that she was dependable, punctual, and efficient. Instead, Ulm stated on the employment action sheet for Kennedy's resignation that she would not rehire Kennedy because of Kennedy's work performance and attitude toward the facility (Filing No. 86-15 at 3; Filing No. 86-18 at 1). Even though Evans, a white nurse, had problems in her work history, she was given a conditional rehire status unlike Kennedy (Filing No. 86-18 at 2).

         Kennedy applied to work at ROSE via Reid's “employee request for transfer” procedure (Filing No. 86-15 at 4-6). She kept the same name-badge, clock-in-badge, and email address (Filing No. 86-5 at 32). Kennedy was the only African-American nurse at ROSE.

         Emily Ross was assigned as Kennedy's trainer. Kennedy asked to be trained as if she was a brand new circulating nurse. Kennedy felt like Emily Ross was not providing adequate training for her new responsibilities. For example, Emily Ross left Kennedy alone for twenty to thirty minutes in the operating room during an operation. Kennedy did not know what she was supposed to do during the operation. After this incident, Kennedy complained to Lynn Greene, one of the supervisors, that she was not being properly trained, and ROSE stopped pairing Kennedy with Emily Ross (Filing No. 86-5 at 32-35).

         When Kennedy was paired with Danielle Kirkland (“Kirkland”) for a spine surgery on December 30, 2013, Kirkland left Kennedy alone, and Kennedy mistakenly brought the patient back to the operating room without the patient first having been marked for surgery. The doctor complained to the staff in the room about leaving a new nurse alone and not training them, which was why so many mistakes were being made. Id. at 33. After this incident, Kennedy was in the locker room next to the breakroom and overheard her supervisor, Miller, telling Kennedy's coworkers about the incident and calling Kennedy stupid. Id. at 34.

         On January 22, 2014, during a surgery, a surgical technician told Kennedy to throw away two raytek and a suction piece, so Kennedy put the supplies in the trash. However, the supplies needed to be accounted for during the “final count” before actually being thrown away, but Kennedy had not been informed that the items needed to be saved for the final count. Following this incident, ROSE clinical educator Teresa Barley (“Barley”) explained the proper procedure to Kennedy. Id. at 33-34; Filing No. 86-22. Barley had been meeting with Kennedy on a weekly basis to provide training. After Barley provided guidance following the final count incident, Kennedy did not commit any other safety or final count mistakes. Once she received proper training, Kennedy became more confident and independent (Filing No. 86-22).

         Kennedy's initial evaluation at ROSE took place on February 25, 2014. Barley noted, “We are glad that you joined our team, Stacy! Keep up the good work!” And Kennedy commented, “Everyone has been really helpful.” (Filing No. 60-5 at 8; Filing No. 86-5 at 34.) At the beginning of March 2014, ROSE put Kennedy on the on-call schedule because she was “doing so well” and was proficient in her job training and performance (Filing No. 86-5 at 34).

         On an occasion in March 2014, ROSE supervisors directed Kennedy to work in the operating room with ROC employees to cover for Welin on a ROC case when Welin left early to attend a parent-teacher conference. Kennedy was required to work with Stacy Ross even though she had been a main source of harassment while Kennedy was at ROC (Filing No. 86-5 at 21; Filing No. 86-1 at 16).

         On another occasion in March 2014, Kennedy and Kirkland were preparing for a carpel tunnel surgery. Dr. Richard Miller came into the room and yelled at Kennedy for not telling Kirkland that she was doing things incorrectly. When Dr. Miller walked out of the room, he said “stupid bitches” under his breath (Filing No. 86-5 at 36-37; Filing No. 86-1 at 16).

         While eating lunch in the breakroom on March 17, 2014, Kennedy had to leave to address a need in the operating room. Kennedy's supervisor Miller and coworker Kirkland were in the breakroom as well as Dr. Sukhminder Bhangoo. Dr. Bhangoo was known for eating other people's food. Dr. Bhangoo also started IVs on patients with Hepatitis C and other communicable diseases without wearing gloves. When Kennedy had to leave the breakroom in the middle of eating lunch, she was going to throw her food away so that Dr. Bhangoo would not eat it. However, Miller and Kirkland told Kennedy that they would protect her food. When Kennedy returned to the breakroom and took a bite of her food, Kirkland laughed and asked if it was good. Kennedy asked three times what happened to her food and then Miller told her that Dr. Bhangoo ate some of it (Filing No. 86-5 at 28-29, 36; Filing No. 86-1 at 16; Filing No. 86-27 at 13).[1]

         Mellissa Stephens, ROSE's clinical coordinator, told Kennedy the next day that Dr. Bhangoo's conduct was gross and that she would not have eaten after him either. Kennedy was humiliated and upset when her coworkers talked and laughed about what happened. Kennedy felt that she could not continue working in a hostile environment and called Lorraine Smith, ROSE's administrative secretary and benefits manager. Kennedy told Smith about the lunch time incident and that she could not work in an environment that put her health at risk. Smith told Kennedy to speak with her supervisor, Miller, before she did anything. The following day, Miller spoke with Kennedy and told her that ROSE could not do anything about the lunch incident, so they would accept a two-week notice of resignation. Kennedy had not previously offered a resignation (Filing No. 86-1 at 16-17).

         On March 19, 2014, Kennedy submitted a one-line resignation, stating her last day of work would be April 2, 2014. Kennedy felt forced to resign because she could no longer work where she was harassed, her health was at risk, and the employer gave her no choice. Id. at 17. Kennedy's last scheduled day to work was April 2, 2014, but she was already scheduled for a week off for vacation the next week, so her actual last day at work was March 19, 2014. Id.; Filing No. 86-5 at 36. Miller completed a Reid ...

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