WILLIAM D. QUARLES, Jr., District Judge.
Donna Hanning sued St. Joseph's Ministries, Inc. ("St. Joseph's"), and others
St. Joseph's is a 106-bed skilled nursing care center in Emmitsburg, Maryland; it is sponsored by an order of Catholic nuns called "the Daughters of Charity." ECF No. 16-3 ¶¶ 3-4. Hanning is a 59 year old Registered Nurse; she has worked for St. Joseph's and its predecessors since 1986. ECF No. 16-4 at 3.
St. Joseph's is divided into two floors, or "neighborhoods": the St. Vincent's neighborhood ("St. Vincent's"), where the residents are retired Daughters of Charity nuns, and the St. Catherine's neighborhood ("St. Catherine's"), where the residents are members of the public. ECF No. 16-3 ¶ 5. Each neighborhood has a "sister servant," who advocates for the residents when a family member is unable to do so. ECF No. 16-4 at 7. Sister Clarice Correia served as the advocate for St. Vincent's. Id. at 8.
On April 17, 2013, Hanning emailed Gabriel and Richards a request for FMLA leave forms in connection with her physician's recommendation that she undergo non-elective thyroid surgery. ECF No. 17-7 at 2. The email noted that Hanning did not know when the surgery would be scheduled. Id. Beth Gilbert, St. Joseph's Human Resources Generalist, sent Hanning FMLA information and necessary forms, including the Employee Request for FMLA Leave and Certification of Health Care Provider. ECF No. 17-8 at 2-3.
Also in April 2013, St. Joseph's management "received several complaints" about Hanning. ECF No. 17-6 at 7.
On May 13, 2013, Hanning was reassigned from St. Vincent's to St. Catherine's. Id. at 9; ECF No. 16-3 ¶ 6. Hanning retained the same position, schedule, responsibilities, salary, and benefits. ECF Nos. 16-4 at 12-13; 17-6 at 8-9. Barb Jensen — who is older than Hanning — replaced her at St. Vincent's. ECF Nos. 16-3 ¶ 7; 16-4 at 15.
On May 24, 2013, Hanning informed Richards, Gabriel, and John Henry — St. Joseph's Administrator — that she had to visit her mother, who was in hospice care in Philadelphia. ECF No. 17-6 at 13. Hanning had often asked not to work weekends, which was when she preferred to visit her mother. Id.
On June 7, 2013, at about 8:00 p.m., Hanning, who was in front of the St. Catherine's nurses' station, noticed "R.C."
Two nursing assistants — Pamela Kaas and Amy Weddle — found R.C. "tied to her wheelchair" with the blanket, and "untied her." ECF Nos. 16-10 ¶ 7; 17-5 at 2; 17-6 at 5. Weddle averred that R.C. would not have been able to remove the blanket because of her "frail" condition, and as "the blanket was secured tightly around her waist[,] and tied behind the wheelchair." ECF No. 16-10 ¶ 8.
When the June 7, 2013 incident occurred, Hanning understood that St. Joseph's has a policy against restraining residents (the "nonrestraint policy"). ECF No. 17-4 at 3. Under the nonrestraint policy,
ECF No. 17-1 at 2. Before restraining a resident, staff should check the resident's chart for a "restraint order" entered by a physician, and document medical symptoms meriting the use of a restraint. Id. Hanning admitted she had not checked R.C.'s chart for a restraint order or contacted the on-call physician for a restraint order. ECF No. 17-4 at 4.
On June 10, 2013, Gabriel scheduled a telephone call with Hanning to discuss the incident. ECF No. 17-6 at 4. According to Gabriel's notes from the telephone call, when asked whether she was aware that R.C. did not have a restrain order, Hanning responded:
ECF No. 16-11 at 2. After deciding that Hanning had restrained R.C. in violation of the nonrestraint policy, and that the violation was "gross misconduct,"
On September 16, 2014, Hanning sued the Defendants in the Circuit Court for Frederick County for employment discrimination in violation of federal and state laws. ECF No. 2. On December 28, 2014, the Defendants removed the suit to this Court. ECF No. 1.
On May 18, 2015, the Defendants moved for summary judgment. ECF No. 16. On June 4, 2015, Hanning opposed the motion. ECF No. 17. On June 22, 2015, the Defendants replied. ECF No. 18.
The Court "shall grant summary judgment 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);
The Court must "view the evidence in the light most favorable to . . . the nonmovant and draw all reasonable inferences in her favor," Dennis v. Columbia Colleton Med. Ctr., Inc., 290 F.3d 639, 645 (4th Cir. 2002), but the Court must abide by the "affirmative obligation of the trial judge to prevent factually unsupported claims and defenses from proceeding to trial," Bouchat v. Balt. Ravens Football Club, Inc., 346 F.3d 514, 526 (4th Cir. 2003) (citation and internal quotation marks omitted). The opposing party must produce evidence upon which a reasonable fact finder could rely. Celotex Corp., 477 U.S. at 322-23. The mere existence of a "scintilla" of evidence is insufficient to preclude summary judgment. Anderson, 477 U.S. at 252.
Under the FMLA, during a 12-month period, eligible employees are entitled to 12 weeks of leave for covered reasons, including a serious health condition. 29 U.S.C. § 2612(a)(1)(D). Employers may not (1) "interfere with, restrain, or deny the exercise of" the right to that leave, or (2) "discharge or in any other manner discriminate against any individual for opposing any practice made unlawful by [the FMLA]." 29 U.S.C. § 2615(a). A claim based on the first prohibition is an interference claim; one based on discrimination is considered a retaliation claim. Yashenko v. Harrah's NC Casino Co., LLC, 446 F.3d 541, 546 (4th Cir. 2006). "A retaliation claim under the FMLA differs from an interference claim under the FMLA in that the interference claim merely requires proof that the employer denied the employee his entitlements under the FMLA, while the retaliation claim requires proof of retaliatory intent." Bosse v. Balt. Cnty., 692 F.Supp.2d 574, 588 (D. Md. 2010). Hanning alleges both types of claims;
To establish unlawful interference with an entitlement to FMLA benefits, Hanning must prove that: "(1) she was an eligible employee; (2) her employer was covered by the statute; (3) she was entitled to leave under the FMLA; (4) she gave her employer adequate notice of her intention to take leave; and (5) the employer denied her FMLA benefits to which she was entitled." Wonasue v. Univ. of Maryland Alumni Ass'n, 984 F.Supp.2d 480, 495 (D. Md. 2013) (quoting Rodriguez v. Smithfield Packing Co., 545 F.Supp.2d 508, 516 (D. Md. 2008)).
Interference may include "refusing to authorize FMLA leave" and "discouraging an employee from taking such leave." Croy v. Blue Ridge Bread, Inc., No. 3:12-CV-00034, 2013 WL 3776802, at *8 (W.D. Va. July 15, 2013) (quoting Conoshenti v. Public Serv. Elec. & Gas Co., 364 F.3d 135, 142 (3d Cir. 2004) (citing 29 C.F.R. § 825.220(b))). Hanning must also show "that the violation prejudiced her in some way." Id. (quoting Anderson v. Discovery Commc'ns, LLC, 517 F. App'x 190, 197-98 (4th Cir. 2013), as amended (May 3, 2013)). Prejudice may include "lost compensation or benefits `by reason of the violation,'" or "other monetary losses `as a direct result of the violation.'" Id. at 198 (quoting 29 U.S.C. § 2617(a)(1)(A)(i)).
The Defendants argue that there is no evidence that St. Joseph's discouraged or barred Hanning from taking FMLA leave. ECF No. 16-1 at 33. Hanning's opposition does not address her interference claim. See generally ECF No. 17 at 11-13 (limiting her FMLA arguments to her retaliation claim).
Here, Hanning's evidence and deposition testimony show that she requested information about taking FMLA leave for thyroid surgery, St. Joseph's provided her with information about taking FMLA leave and the required forms to complete, and afforded her additional time to return the forms, which she never did. ECF Nos. 16-4 at 28; 17-7 at 2; 17-8 at 2-4; 17-9 at 2. Although Hanning was fired about two months after requesting FMLA leave, timing alone "will rarely be independently sufficient to create a triable issue of fact." See Mercer v. Arc of Prince Georges Cty., Inc., 532 F. App'x 392, 397 (4th Cir. 2013) (citing Simpson v. Office of the Chief Judge of the Cir. Ct., 559 F.3d 706, 713 (7th Cir. 2009)). More importantly, "[a] request for FMLA leave did not grant Hanning immunity from discipline for violations of [St. Joseph's nonrestraint policy." ECF No. 16-1 at 35. Thus, Hanning cannot rely on her mere request for FMLA leave to establish interference. Cf. Yashenko, 446 F.3d at 549-50 (granting summary judgment for defendant on FMLA interference claim when it fired an employee on FMLA leave during a company reorganization); Laing, v. Fed. Exp. Corp., 703 F.3d 713, 723-24 (4th Cir. 2013) ("[T]he FMLA does not preclude an employer from [suspending an employee] upon her return from [FMLA] leave if it would have taken the same action had the employee never taken leave in the first place."). Accordingly, the Defendants are entitled to summary judgment on Hanning's FMLA interference claim.
To establish retaliation, Hanning must show direct evidence of discrimination, or establish a prima facie case that raises an inference of illegal conduct. See, e.g., Coleman v. Md. Court of Appeals, 626 F.3d 187, 190 (4th Cir. 2010). The burden-shifting approach of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973) applies to retaliation claims lacking direct evidence. Smith v. First Union Nat'l Bank, 202 F.3d 234, 248 (4th Cir. 2000); Yashenko, 446 F.3d at 551. First, Hanning must establish a prima facie case of retaliation. See Laber v. Harvey, 438 F.3d 404, 432 (4th Cir. 2006). The burden then shifts to the employer to produce a legitimate, non-discriminatory reason for the adverse action. See id. Hanning must then demonstrate that the employer's reason was merely a pretext for retaliation by showing "both that the reason was false and that discrimination was the real reason for the challenged conduct." Jiminez v. Mary Wash. Coll., 57 F.3d 369, 378 (4th Cir. 1995) (internal quotation marks omitted); see also Foster v. Univ. of Maryland-E. Shore, 787 F.3d 243, 252 (4th Cir. 2015) (at the pretext stage, the plaintiff must show "that retaliation was a but-for cause of a challenged adverse employment action").
To establish her prima facie case, Hanning must demonstrate: (1) a protected activity; (2) a "materially" adverse employment action; and (3) a causal connection between the protected activity and materially adverse action. Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68, 126 S.Ct. 2405, 165 L.Ed.2d 345 (2006); Bryant v. Aiken Reg'l Med. Ctrs. Inc., 333 F.3d 536, 543 (4th Cir. 2003); Yashenko, 446 F.3d at 551.
St. Joseph's concedes, solely for the purpose of summary judgment, that Hanning has established a prima facie FMLA retaliation claim in connection with her termination. See ECF No. 16-1 at 37. Further, St. Joseph's has proffered a legitimate, nondiscriminatory reason for firing Hanning: her violation of its nonrestraint policy. Id. at 28; see also 17-2 at 7; 17-3 at 5-6; 17-6 at 4-5.
To survive summary judgment, Hanning must rebut the Defendants' evidence by showing that the proffered reason is, more likely than not, a pretext for discrimination. See Holland, 487 F.3d at 214-15 (quoting Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143, 120 S.Ct. 2097, 2106, 147 L.Ed.2d 105 (2000) (internal quotations omitted)). She can do this "by showing that the employer's proffered explanation is unworthy of credence." Id. (quoting Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 256, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981) (internal quotations omitted)).
Hanning argues that there is a genuine dispute of material fact about whether St. Joseph's reason was pretextual. ECF No. 17 at 7. Relying on principles of Maryland contract law, Hanning contends that the nonrestraint policy was ambiguous; thus, it is unclear whether she violated the nonrestraint policy, which must be construed in her favor. Id. at 6-7, 10-11, 12. Hanning's argument is unconvincing.
At most, Hanning demonstrates that there may be a reason to disagree with St. Joseph's stated reason for firing her. Even assuming, arguendo, that the nonrestraint policy is "open to interpretation,"
Under the ADEA, an employer may not "discharge any individual or otherwise discriminate against any individual with respect to . . . privileges of employment, because of such individual's age." 29 U.S.C. § 623(a)(1). To succeed on an ADEA claim, the plaintiff must be at least 40 years old and "`prove, by a preponderance of the evidence . . . that age was the `but-for' cause of the challenged employer decision.'" Id.; Bodkin v. Town of Strasburg, 386 F. App'x. 411, 413 (4th Cir. 2010) (per curiam) (quoting Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 177-78, 129 S.Ct. 2343, 174 L.Ed.2d 119 (2009)).
Similar to her FMLA claim, Hanning can prove age discrimination through one of two methods. See Hill v. Lockheed Martin Logistics Mgmt., Inc., 354 F.3d 277, 284 (4th Cir. 2004); Gott v. Town of Chesapeake Beach, Md., 44 F.Supp.3d 610, 614 (D. Md. 2014). First, she may use "any direct or indirect evidence relevant to and sufficiently probative of the issue," under "ordinary principles of proof." Burns v. AAF-McQuay, Inc., 96 F.3d 728, 731 (4th Cir. 1996) (internal quotation marks omitted). Absent direct evidence of discrimination, the Court applies the burden-shifting approach of McDonnell Douglas.
Under McDonnell Douglas, Hanning must first establish a prima facie case of discrimination. Merritt v. Old Dominion Freight Line, Inc., 601 F.3d 289, 294 (4th Cir. 2010). Thus, Hanning must show that: (1) she was protected by the ADEA; (2) "[s]he suffered an adverse employment action"; (3) "[s]he was at the relevant time performing [her] duties at a level that met [her] employer's legitimate expectations"; and (4) "[her] position remained open or was filled by a similarly qualified applicant outside the protected class." Loveless v. John's Ford, Inc., 232 F. App'x. 229, 234-35 (4th Cir.2007) (per curiam) (citing Hill, 354 F.3d at 285). If she does, "a presumption of illegal discrimination" arises, and the burden of production shifts to the employer to articulate a non-discriminatory reason for its adverse decision. Hoyle v. Freightliner, LLC, 650 F.3d 321, 336 (4th Cir. 2011).
"If the defendant carries this burden of production, the presumption raised by the prima facie case is rebutted," Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 255, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981), and the McDonnell Douglas framework "drops out of the picture," St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 511, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993). The plaintiff must then prove by a preponderance of the evidence that "the proffered reason was not the true reason for the employment decision," and that the true reason was discrimination. Burdine, 450 U.S. at 256, 101 S.Ct. 1089. She may do this directly or indirectly, by "persuading the [C]ourt that a discriminatory reason more likely motivated the employer" or by showing that the employer's explanation is "unworthy of credence." Id.
The Defendants argue that Hanning has not shown that she was replaced by someone outside the protected class, or that she was meeting St. Joseph's legitimate expectations. ECF No. 16-1 at 27-28. Hanning argues that there is a dispute of material fact as to whether she was meeting St. Joseph's legitimate expectations when she was fired. ECF No. 17 at 8. Hanning further argues that she was replaced at St. Catherine's by several nurses, "most of whom (60%) were under the age of 40" when they were hired. Id. at 4, 9.
Hanning has not shown that she was meeting St. Joseph's legitimate expectations when she was fired. Hanning's evidence demonstrates that she had been recently reassigned to St. Catherine's because of several complaints about her conduct by residents and staff, ECF No. 17-6 at 7-9, and she was fired for apparently violating St. Joseph's nonrestraint policy, ECF Nos. 17-2 at 7; 17-3 at 5-6; 17-6 at 4-5. Any assertion by Hanning that she had not violated the nonrestraint policy is insufficient; her "own perception of her job performance cannot create an issue of fact on this element." Avant v. S. Maryland Hosp., Inc., No. GJH-13-02989, 2015 WL 435011, at *5 (D. Md. Feb. 2, 2015) (citing Evans v. Techs. Applications & Serv. Co., 80 F.3d 954, 960-61 (4th Cir. 1996)).
Even had Hanning met this requirement, she has not shown that her position was filled by a similarly qualified applicant outside the protected class. Hanning relies on evidence that — from January 2013 to March 2015 — St. Joseph's hired 10 nurses, five of whom were outside the protected class. ECF No. 17 at 9; see also ECF No. 17-6 at 6. However, there is no evidence about which, if any, of the 10 new nurses assumed Hanning's position; her "unsupported speculation [about who assumed her duties] is insufficient." See Evans, 80 F.3d at 960. Finally, Hanning has not proffered any evidence about the new nurses' qualifications. See Devan v. Barton-Cotton, Inc., 141 F.3d 1158, 1998 WL 183844, at *3-*4 (4th Cir. 1998) (table opinion) (citing Blistein v. St. John's College, 74 F.3d 1459, 1467 n. 7 (4th Cir. 1996)) (affirming summary judgment for the defendants when the plaintiff failed to show that he was "replaced by someone of comparable qualifications").
Even had Hanning demonstrated a prima facie case, her ADEA claim fails for the additional reason that, as discussed above,
Maryland law bars employers from "discharge[ing], or otherwise discriminat[ing] against any individual with respect to the individual's compensation, terms, conditions, or privileges of employment because of . . . the individual's . . . age." Md. Code Ann., State Gov't § 20-606(a)(1)(i) (West 2010). Maryland courts "traditionally seek guidance from federal cases in interpreting [Title 20]." Haas v. Lockheed Martin Corp., 396 Md. 469, 914 A.2d 735, 742 (Md. 2007); see also Bishop v. Bd. of Educ. of Calvert Cnty., 2011 WL 2651246, at *9 (D. Md. July 5, 2011), aff'd, 466 F. App'x 261 (4th Cir. 2012). Thus, Hanning's "state law claim is therefore properly analyzed under the same paradigm as her federal ADEA claim." Avant, 2015 WL 435011, at *9. Because Hanning's ADEA claim fails, the Defendants are entitled to summary judgment on her state law claim. See id.
For the reasons stated above, the Defendants' motion will be granted.
