SUSAN WEBBER WRIGHT, District Judge.
Plaintiff Robin Rhodes ("Rhodes"), who is black, brings this employment discrimination action against her former employer, Central Arkansas Rehabilitation Associates, L.P., doing business as St. Vincent Rehabilitation Hospital ("SVR"). Rhodes charges that SVR terminated her employment because of her race and gender and in retaliation for complaining about racial and sexual harassment. Before the Court is SVR'S motion for summary judgment [ECF Nos. 15, 16, 17], Rhodes's response in opposition [ECF Nos. 20, 21, 22], and SVR's reply [ECF No. 26]. After careful consideration, and for reasons that follow, the motion is granted.
Summary judgment is appropriate when "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). As a prerequisite to summary judgment, a moving party must demonstrate "an absence of evidence to support the non-moving party's case." Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). Once the moving party has properly supported its motion for summary judgment, the non-moving party must "do more than simply show there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).
The non-moving party may not rest on mere allegations or denials of his pleading but must come forward with `specific facts showing a genuine issue for trial. Id. at 587. "[A] genuine issue of material fact exists if: (1) there is a dispute of fact; (2) the disputed fact is material to the outcome of the case; and (3) the dispute is genuine, that is, a reasonable jury could return a verdict for either party." RSBI Aerospace, Inc. v. Affiliated FM Ins. Co., 49 F.3d 399, 401 (8th Cir. 1995).
The following facts are undisputed and taken largely from the parties' statements of undisputed material facts.
On November 23, 2014, a patient complained that Rhodes was rude to him when he requested assistance going to the bathroom. A nursing supervisor named Nathan Haley ("Haley") counseled Rhodes about the patient's complaint and proper patient care and then assigned another RNT to care for the patient. In an email message to SVR's Chief Nursing Officer ("CNO"), Shannon Moreno-Cook, Haley opined that he did not think the incident warranted a write up but that he "wanted it on the record [that] Robin was educated [about] our . . . expectations."
In February 2015, Vanessa Barnett ("Barnett") assumed the position of CNO, which gave her supervisory authority over Rhodes. In deposition, Barnett recalled that on March 12, 2015, she counseled Rhodes regarding complaints submitted by two patients, who claimed that Rhodes had mistreated them. Barnett acknowledges that she did not document a March 12, 2015 meeting with Rhodes,
On April 6, 2015, Rhodes called Barnett and complained about the conduct of a white, male nurse named Michael Davis ("Davis"), who was working for a staffing agency that had assigned him SVR. Rhodes told Barnett that Davis had slapped her buttocks with a clipboard, and when he noticed that Rhodes had been eating milk duds, Davis stated, "Oh, I see you like chocolate balls in your mouth."
On April 9, 2015, Barnett received an email message titled "Robin Rhodes" from SVR nursing supervisor Jamie Clark ("Clark").
By letter dated April 15, 2015, RN Tracie Brown, an staffing agency nurse assigned to work at SVR, wrote Barnett the following letter:
On April 16, 2015, Barnett gave Rhodes written notice that she was on probationary status for a period not to exceed 90 days and that unsatisfactory progress during the probationary period could result in her termination.
Under the heading "Corrective Action Plan," the notice reads: "Robin will be courteous to patients when caring for them and ask for assistance when necessary."
In a June 8, 2015 email to Barnett and Roon, SVR nursing supervisor Jackie Kassler ("Kassler") reported that two patients, who were roommates, complained that the RNT assigned to their room on June 5 and 6 had mistreated them. Kassler stated that she spoke with both patients, and she identified Robin Rhodes as the RNT assigned to the room at the time in question. Kassler stated that one patient told her that Rhodes became very impatient and "jerked" her and that the family of the other patient, a confused amputee who needed extra time to process requests, was very upset and requested that Rhodes never care for their loved one again.
On June 18, 2015, Roon notified Rhodes by phone that her employment at SVR had ended. A form documenting Rhodes dismissal states the reason for her termination as follows:
SVR moves for summary judgment, asserting among other things that it terminated Rhodes's employment for legitimate, non-discriminatory and non-retaliatory reasons.
Rhodes's complaint and responsive brief clearly indicate that she brings her race and sex discrimination claims under a disparate treatment, not a hostile environment, theory.
Rhodes contends that the record provides "compelling direct evidence of discrimination, including retaliation,"
Second, Rhodes claims that Roon urged Barnett to "backdate" a patient's complaint about Rhodes to make it appear that it came before Rhodes complained about Davis. Even if such evidence were present, it would not provide direct evidence of race or sex discrimination.
Third, Rhodes claims that after Roon terminated her employment, she hired Davis and continued to protect him from other employees' sexual harassment claims. Rhodes argues that "Defendant favored and protected Davis and discriminated against those who exposed Davis's misdeeds."
Fourth, Rhodes offers the affidavit of Debra Ramsey, a former SRV employee. Ramsey testifies that during her employment at SRV, she and several female employees complained that Davis had sexually harassed them and that Roon refused to take any action against Davis. Ramsey also opines that generally, SRV gives male employees preferential treatment. Ramsey's testimony fails to provide a specific link between the discriminatory animus alleged in this individual case and Rhodes's termination.
Given the absence of evidence that directly points to the presence of a discriminatory motive, Rhodes's wrongful termination claim is properly analyzed under the three-part framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1972). Normally, part one of that framework requires that the plaintiff establish a prima facie case of discrimination.
In order to survive summary judgment, Rhodes must present evidence sufficient to create a jury question as to whether the stated reason for her termination is merely pretext to hide race and/or gender discrimination. Specifically, Rhodes must (1) discredit SVR's asserted reason and (2) show that the circumstances permit a reasonable inference that race and/or gender was the real reason for her termination. See Johnson v. AT & T Corp., 422 F.3d 756, 763 (8th Cir. 2005).
Rhodes argues that SVR began collecting and documenting negative reports regarding her performance only after she complained that Davis had subjected her to racial and sexual harassment. But it is undisputed that nursing supervisor Haley counseled Rhodes about a patient complaint less than one month after her hire, and he documented the incident in an email message to Barnett. There is simply no evidence that SVR manufactured or fabricated negative reports regarding Rhodes's job performance, or that her supervisors documented such reports only after Rhodes complained about Davis. Rhodes denies that she committed the conduct set forth in patient complaints and reports, but the important question is whether Barnett and Roon believed that Rhodes had engaged in conduct meriting her termination, and the undisputed facts indicate that they did. See Johnson v. AT&T Corp., 422 F.3d 756, 763 (8th Cir. 2005).
Rhodes next contends that SRV favored Davis and protected him from her complaint against him, and they discriminated against her because she exposed Davis's misdeeds. Although instances of disparate treatment can support a claim of pretext, Rhodes has the burden to show that she and the more favorably treated employee were "`similarly situated in all relevant respects.'" Harvey v. Anheuser-Busch, Inc., 38 F.3d 968, 972 (8th Cir. 1994)(citing Jones v. Frank, 973 F.2d 673, 676 (8th Cir.1992)(quoting Lanear v. Safeway Grocery, 843 F.2d 298, 301 (8th Cir.1988)). Here, Davis was an RN, who worked for a staffing agency, and there is no evidence that he was the subject of patient complaints.
Viewing the record in a light most favorable to Rhodes, the Court finds that she has failed to create a jury question on the issue of pretext. Accordingly, SVR is entitled to summary judgment on Rhodes's race and gender discrimination claims.
Rhodes charges that SVR terminated her employment in retaliation for the complaint she submitted on April 6, 2015, charging that Davis subjected her to racial and sexual harassment. Because SRV has come forward with a non-retaliatory reason for terminating Rhodes's employment, she shoulders the burden to present evidence that "`(1) creates a question of fact as to whether [SVR's] reason was pretextual and (2) creates a reasonable inference that [SVR] acted in retaliation.'" Stewart v. Independent School Dist. No. 196, 481 F.3d 1034, 1043 (8th Cir. 2007)(quoting Logan v. Liberty Healthcare Corp., 416 F.3d 877, 880 (8th Cir. 2005)). Rhodes contends that the timing of her termination, which came two months after she lodged the complaint against Davis, is sufficient to create questions for trial. The Court disagrees. The timing of adverse employment action may be sufficient to establish a causal connection between protected activity and adverse employment action, which is necessary to make out a prima facie case of retaliation. As explained above, even assuming the existence of a prima facie case, Rhodes has failed to rebut SVR's proffered reason for her termination. Accordingly, no issues for trial exist as to Rhodes's wrongful termination claims, whether based on status-based discrimination or retaliation. See Putman v. Unity Health System, 348 F.3d 732, 737 (8th Cir. 2003)(affirming dismissal of retaliatory termination claim when plaintiff failed to show that employer's nondiscriminatory reason for the termination was pretextual); see also See Jackson v. St. Joseph State Hosp., 840 F.2d 1387, 1391 (8th Cir. 1988)(noting that anti-retaliation provisions do "not clothe the complainant with immunity for past and present inadequacies, unsatisfactory performance, and uncivil conduct in dealing with subordinates and with his peers.").
For the reasons stated, the Court finds that Defendant's motion for summary judgment [ECF No. 15] should be and it is hereby GRANTED. Pursuant to the judgment entered together with this order, this action is DISMISSED WITH PREJUDICE.
