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Pierce v. Fort Wayne Healthcare Group, LLC

United States District Court, N.D. Indiana

May 15, 2018




         The Plaintiff, Victoria Pierce, is pursuing claims for discrimination against her former employer, Fort Wayne Healthcare Group, LLC. She alleges that the Defendant terminated her employment because of her race, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and because it perceived her to be disabled, in violation of the Americans with Disabilities Act (ADA), 42 U.S.C. § 12111 et seq.[1] The Defendant maintains that the reason it terminated her employment was because she violated the strict attendance policy that applies to employees during their first ninety days of employment. The Defendant has moved for summary judgment, asserting that the Plaintiff cannot show a genuine issue for trial. The matter is ripe for this Court's review.


         The Defendant owns and operates Grey Stone Health and Rehabilitation Center, an extended care facility in Fort Wayne, Indiana, that offers skilled nursing care and rehabilitation services. An Administrator oversees the entire facility and its staff. The Director of Nursing, and Assistant Director of Nursing oversee the nurses and certified nursing assistants. There is also a supervising nurse on duty during each shift.

         The Plaintiff has twice worked for the Defendant as a Certified Nursing Assistant (CNA). Both periods of employment ended before the Plaintiff completed the ninety-day probationary period. After the Plaintiff's first period of employment ended on December 10, 2014, the Plaintiff reapplied, unsuccessfully, for a CNA position with the Defendant. However, in March 2016, the Director of Nursing, Regina Baumgartner, rehired the Plaintiff for a full-time, third shift position. Baumgartner prepared a written note stating that her review of the Plaintiff's file revealed that the Plaintiff should not have been designated as non-rehireable for her December 2014 termination. Specifically, she noted that the Plaintiff had not been aware of, and had not signed, the write-ups that led to her termination because she went to the emergency room and was not present at work.

         The Defendant requires full-time CNAs to work every other weekend. The Plaintiff understood this requirement. Upon her rehire, the Plaintiff also received a copy of the Defendant's Employee Handbook and Attendance Policy. The Handbook included an Attendance Policy, which defined an absence as “the failure of an employee to report for work when the employee is scheduled to work or failure to work ANY scheduled shift (including shifts that an employee voluntarily picks up for vacancies/call offs).” (Saber Heathcare Group Facilities Attendance Policy, Pl.'s Dep. Ex. I, ECF No. 24-3 at 88.) Additionally, “[a]n absence occurs when it is necessary for you to be absent or late for work because of illness or an emergency.” (Id.) The Attendance Policy also states, “[a]ny employee who fails to report to work without notification to his or her supervisor for a period of one day will be considered to have voluntarily terminated their employment.” (Id.) The Policy contains specific requirements for employees who are in the first ninety days of employment:

90 day Probation Period - The first absence within an employees [sic] first 90 days will result in a verbal warning. The second absence within an employees [sic] first 90 days will result in a written/FINAL WARNING. The third absence within an employees [sic] first 90 days will result in immediate termination of employment.
One NO CALL NO SHOW will result in immediate termination.

(Id., ECF No. 24-3 at 89.) The only absences that do no count against attendance during the probationary period are those for “bereavement, jury duty, or FMLA.” (Id.)

         The Plaintiff was scheduled to work on March 29, 2016. Before her shift began, the Plaintiff received a call from BioLife about plasma that she had donated. BioLife informed the Plaintiff that her recent donation did not pass a laboratory screening test, and requested that she come to its facility for more information. The Plaintiff went to BioLife and was informed that the screening had tested positive for HIV. BioLife referred the Plaintiff to her medical provider to follow up with additional testing to confirm her HIV status. Shaken by the news, the Plaintiff called the Defendant and spoke with the scheduler to say she would not be working her shift. The absence counted as the Plaintiff's first absence during her probationary period.

         Two to three weeks later, the Plaintiff informed Jim Chin, her third shift supervisor, that she might be infected with HIV, and that she wanted to inform the Administrator, Fred Taylor. Chin suggested that the Plaintiff wait to speak to Taylor until her diagnosis was confirmed. Although she still did not have confirmation a week or two later, the Plaintiff told Taylor about her situation. Taylor assured the Plaintiff that she would not lose her job because of the possible diagnosis and that he would not share the information with anyone else. The Plaintiff continued to perform her regular job duties and did not request any accommodation or changes because of her potential HIV status.

         The Plaintiff was scheduled to work the weekend shift that included Friday, May 13 through Sunday, May 15. The Plaintiff had previously requested May 14 off so that she could move, but the request was denied because the Plaintiff was still in her probationary period and because the request was for a weekend shift. The Plaintiff reported for her shift on Friday, but was not feeling well. She had difficulty breathing, a sore throat, and tightness in her chest. Around 2:00 AM, Chin sent the Plaintiff home.

         The following morning, the Plaintiff called the Defendant's facility and spoke with Jody Hudson, a first shift nurse, to inform him that she was sick, planned to visit a walk-in clinic, and would not be working her shift that night. Hudson informed the Plaintiff that she should submit a doctor's note. The Plaintiff went to a walk-in clinic where she was diagnosed with strep throat and received a slip from her doctor stating that she should be excused from work for that day-May 14. According to the Plaintiff, she called Hudson back to relay her diagnosis, and then brought the note to the Defendant's facility per Hudson's request. She also kept a copy of the note for herself.[2] The Plaintiff did not come to work on Sunday, May 15. Nor did she call to report her absence.

         The Director of Nursing, Rachel Shaffer, and the Assistant Director of Nursing, Lori Smith, made the decision to terminate the Plaintiff's employment for violation of the Attendance Policy. Shaffer had been the Director of Nursing since late April 2016, and did not know about the Plaintiff's HIV status. Smith was also unaware of the Plaintiff's potential HIV status. On May 16, Smith called the Plaintiff to inform her that the Defendant was terminating her employment for violation of the Attendance Policy. The Plaintiff disputed that she could be terminated for her absence on Saturday because she was under a doctor's care. Smith told the Plaintiff she was being terminated due to her no call/no show over the weekend. Shortly thereafter, the Plaintiff arrived at the Defendant's facility, requesting to speak with Taylor. The Plaintiff told Taylor that she had a doctor's note for her absence, had only been absent one other time, and did not know of any other write ups. Taylor arranged for the Plaintiff to meet with Shaffer on May 18.

         On May 18, the Plaintiff met with Shaffer, Smith, and Lisa Scott, a day shift nurse supervisor, to discuss her termination. This was the first time that Shaffer had met the Plaintiff. At some point in the meeting, the Plaintiff requested to step out of the meeting to speak with Shaffer alone. The Plaintiff explained to Shaffer why she believed that she should not have been terminated. Shaffer responded by pointing to the no call/no show over the weekend and write ups the Plaintiff had received. The Plaintiff informed Shaffer that her first absence, on March 29, was due to the information she received about the HIV screening. According to the Plaintiff, Shaffer did not reconsider the termination decision, but stated that the Plaintiff should not be working in health care with her medical issue.[3]

         After the meeting, the Plaintiff wanted to obtain copies of the documents in her personnel file. The Plaintiff's encounter with the human resources employee in possession of her file escalated to the point where the Plaintiff took her file and left, tearing up its contents as she walked out of the facility.


         Summary judgment is appropriate if “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). Summary judgment is the moment in litigation where the non-moving party is required to marshal and present the court with evidence on which a reasonable jury could rely to find in her favor. Goodman v. Nat'l Sec. Agency, Inc., 621 F.3d 651, 654 (7th Cir. 2010). Although the court must construe all the facts and reasonable inferences in favor of the plaintiff, as the nonmoving party, this favor “does not extend to drawing inferences that are supported by only speculation or conjecture.” Argyropoulos v. City of Alton, 539 F.3d 724, ...

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