JENNIFER A. DORSEY, District Judge.
Pro se plaintiff Pamela Baxter was employed as a general surgical technician at Spring Valley Hospital and Medical Center from June 2, 2008, until she was terminated on September 21, 2010. Baxter alleges that Spring Valley failed to engage in a good-faith discussion with her regarding a reasonable accommodation for her then-recent diagnosis of a major depression disorder and post traumatic stress disorder; retaliated against her for filing a charge of discrimination with the EEOC; and ultimately terminated her because she is black. Doc. 9. Baxter asserts claims for race-based and disability-based discrimination and retaliatory discharge under the Americans with Disabilities Act (ADA), and she prays for a host of remedies including reinstatement and damages. Id. at 4.
The hospital moves for summary judgment on all of Baxter's claims. Doc. 36. It contends that Baxter did not engage in the good-faith, interactive process for a disability accommodation; the ten-month gap between her EEOC filing and her termination fatally undermines her retaliation claim; and there is no proof that she was treated disparately due to her race. Docs. 36, 46. Baxter opposes the motion, disputing the hospital's version of the facts, attaching more than 100 pages of unauthenticated documents, and asking the court to find a genuine of issue of material fact and deny summary judgment. I find this motion appropriate for disposition without oral argument,
Summary judgment is appropriate when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law."
Before I reach the merits of the parties' arguments, I must first address the sufficiency of their summary judgment papers. A party seeking to either support or refute the assertion that a fact is genuinely in dispute must do so with admissible evidence.
To authenticate a document, the proponent must offer "evidence sufficient to support a finding that the matter in question is what its proponent claims.'"
Baxter has made no effort to authenticate her exhibits, and they do not appear to be selfauthenticating. Under Fed. R. Civ. Proc. 56(e), "[i]f a party fails to properly support an assertion of fact . . . as required by Rule 56(c), the court may: (1) give an opportunity to properly support or address the fact; (2) consider the fact undisputed for purposes of the motion; (3) grant summary judgment if the motion and the supporting materials . . . show that the movant is entitled to it; or (4) issue any other appropriate order."
In selecting among appropriate remedies, I cannot ignore the procedural history of this case. Plaintiff has failed to respond to written discovery, see Doc. 47, failed to appear at hearings, Docs. 48, 49, 52, and been sanctioned for "vexatiously increas[ing] the cost of this litigation in bad faith by failing to attend hearings designed to improve the progress of the case." Doc. 66. Despite her unrepresented status, Baxter still is required to follow all rules of this court.
When evaluating a summary judgment motion in an employment discrimination action like this one, the court must employ the burden-shifting framework from McDonnell Douglas Corp. v. Green
This is a three-step process, the first of which requires the employee to establish a prima facie case of discrimination.
Once a prima facie case has been established, "[t]he burden of production, but not persuasion, then shifts to the employer to articulate some legitimate, nondiscriminatory reason for the challenged action."
As her first claim, Baxter alleges that she was terminated because she "was diagnosed with a disability": major depression disorder and post-traumatic stress disorder. She claims that she requested an accommodation in the form of a 12-week leave of absence beginning on June 30, 2010, which was granted, but the hospital shortened her leave without engaging in the good-faith interactive process and just terminated her in violation of the ADA. Doc. 9 at 2-3. The hospital acknowledges that it originally granted Baxter FMLA leave through September 30
The hospital has never contended that Baxter's claimed disability was a sham, nor does it deny that it agreed to provide Baxter with medical leave beginning on June 30, 2010. Doc. 36 at 7; 36-1 at 3. Spring Valley offers the declaration of Nita Matthew, a Human Resources Generalist for Spring Valley, who attests that the hospital sent Baxter a letter stating that her FMLA leave of absence request had been "received and approved." Doc. 36-1 at 2, 23. Although the extent of Baxter's disability may not be established with competent evidence, the court can infer that Spring Valley would not have approved Baxter's FMLA leave request if it did not acknowledge that Baxter suffered from a disability. Thus, the record supports the conclusion that Baxter is disabled as contemplated by the ADA.
As to whether Baxter was qualified, Spring Valley points to a number of negative performance reviews, see Doc. 36 at 4-7, but never claims that it terminated her employment or told Baxter she would be terminated because she was not qualified to maintain her job. Matthew declares that when Baxter "appeared" in her office in early October following her termination, Matthew told Baxter she had been terminated but could reapply for open positions after 30 days. See Docs. 36 at 16-17; 36-1 at 3-4. Spring Valley also submits the declaration of Walter Bailey, its Nurse Manager, who attests that Baxter applied for an Open Heart Surgical Technician position in the spring of 2012, more than two years after her leave, and Spring Valley contacted her for an interview. Doc. 36-5, p. 2. It defies business logic for Spring Valley to have contacted Baxter for an interview if it did not believe that she was qualified for the position.
Finally, Spring Valley never contests that Baxter's termination was an "adverse employment action," as it undisputedly was. Thus, the record establishes a prima facie case of disability discrimination.
Because Spring Valley's own evidence entitles Baxter to a presumption of disability discrimination for purposes of this motion, the court next considers whether the hospital articulated a legitimate, non-discriminatory basis for its decision to terminate Baxter's employment.
Spring Valley contends that Baxter's claim fails as a matter of law because it provided Baxter with a reasonable accommodation for her disability in the form of 12 weeks of FMLA leave. Docs. 36-1 at 3; 44 at 4.
The parties do not dispute that Baxter was given 12 weeks of leave, or whether this leave period was predicated by some discussion between Baxter and Spring Valley. Indeed, until late August, both Baxter and the hospital were under the singular understanding that Baxter's leave extended through the end of September. The unique question here is not whether the hospital initially afforded Baxter a reasonable accommodation, but whether it acted reasonably when unilaterally modifying that accommodation by cutting it short by nine days.
Overall, the accommodation process is designed to be an enterprise in "cooperative problemsolving" and is thus a continuing duty that may not be exhausted by a simple effort.
Whether the hospital acted and communicated in good faith in the leave-modification process is a question of fact that cannot be resolved on summary judgment. Matthew declares that she left a message on Baxter's phone "in late August" in which she asked Baxter to contact her "about her leave." Doc. 36-1 at 3 (emphasis added). Baxter then returned the call, leaving a message. Id. The contents of Matthew's phone message and Baxter's response are not described in her declaration; and, construing all reasonable doubts and inferences in Baxter's favor as I must, it is not clear whether Matthew explicitly told Baxter that her FMLA end date had been changed. Even if Matthew explicitly communicated the change, it is equally reasonable to conclude that Baxter attempted to negotiate a further accommodation.
Matthew then left one more message on Baxter's machine "in late August or early September." Id. This message is also described through the cryptic phrase "about her leave." Receiving no response, Spring Valley then attempted, on an unspecified date, to contact Baxter again by telephone, only to discover that Baxter's "phone number was not working." Id. It is not clear when this phone call occurred, but the next time Spring Valley attempted to contact Baxter was on September 15, 2010, when Matthew claims that she sent Baxter a letter via certified mail. Id. at 3.
Spring Valley's "certified mail" stamp contains only the first line of Baxter's address, and does not indicate when the letter was actually mailed or when it was delivered, if in fact it ever was. Id. at 23. Moreover, the letter Spring Valley sent never references Spring Valley's prior communications; fails to indicate that the leave period was previously miscalculated; and references an "extension" of the leave period until September 21, 2010. Id. at 23. None of these incongruities is resolved by Matthew's declaration.
Had Spring Valley proffered evidence that it explicitly communicated with Baxter about the modification to her FMLA date, the court might be able to conclude that Baxter failed to engage in the accommodation process in good faith, which she was obligated to do. However, construing all reasonable doubts and inferences in Baxter's favor, it is not clear that Baxter (1) was properly informed of the change in her leave-end date or (2) made no reasonable efforts to communicate about these dates even if she was informed. Thus, a material question of fact remains as to whether responsibility for the breakdown in communication rests with Baxter or her employer.
And when the hospital's stated reason for terminating Baxter is her failure to timely return to work after the shortened leave period ended, and the legitimacy of that reason is questionable, the court need not reach the third stage of the McDonnell Douglas burden-shifting test. Spring Valley's request for summary judgment on Baxter's disability-discrimination claim is denied.
As her second claim, Baxter alleges her termination was retaliation for her filing of a charge of discrimination with the EEOC in "early 2010," in which she claimed that she was being discriminated against on account of her race and that Spring Valley refused to allow her to change her hours so that she could care for her disabled son. Id. at 2. To make out a prima facie case of retaliation, a plaintiff must show (1) involvement in a protected activity, (2) an adverse employment action, and (3) a causal link between the two.
Spring Valley does not deny that filing a charge with the EEOC was a "protected activity" or that Baxter suffered an "adverse employment action." It contends that Baxter cannot establish a prima facie retaliation claim because there is a nine-month gap between her charge and her termination, and Baxter has offered no competent summary judgment evidence of a causal link between these events.
Causation between a protected activity and an adverse employment action "excludes only those links that are too remote, purely contingent, or indirect."
Baxter filed her EEOC complaint in January 2010 and amended her charge in March 2010 to add a retaliation claim. See Docs. 36 at 5-6; 36-2 at 63-65, 90. The EEOC dismissed her charge on June 11, 2010. See Doc. 36-4 at 2. Baxter's employment was terminated, according to Spring Valley, in late September 2010. The approximately nine months between Baxter's EEOC charge and termination—or even the roughly three and a half months between the dismissal of the charge and the termination—would be insufficient to establish causation without something more.
Other dates and circumstances surrounding Baxter's termination suggest that something more. For example, Baxter filed her administrative charges against Spring Valley in January 2010 and received her right-to-sue letter from the EEOC on June 11, 2010. The EEOC's dismissal letter gave her 90 days to sue. Doc. 36-4 at 4. Baxter's 90-day suit rights expired on September 9, 2010, just six days before Spring Valley purportedly mailed Baxter a certified letter informing her that her FMLA leave date had been moved up. See Doc. 36-1 at 23. Again, although Spring Valley claims to have contacted Baxter prior to this time, the letter to Baxter never references any prior communications or that the leave period was miscalculated; instead, it references an FMLA "extension" from an unidentified period running through September 21, 2010. Doc. 36-1 at 23. Taken together and viewed in the light most favorable to Baxter, these facts suggest a possible causal link sufficient to state a prima facie claim of discrimination and preclude summary judgment.
As Baxter is entitled to a presumption that Spring Valley retaliated against her, Spring Valley must again articulate a legitimate, non-discriminatory reason for taking the action it did. Spring Valley's articulated reason again hinges on the modification of her FMLA leave date, and it again lacks evidentiary legitimacy. See supra at 10-11. As the hospital has failed to overcome the presumption of retaliation, I need not reach the third step in the McDonald Douglas test. Spring Valley's request for summary judgment on Baxter's retaliation claim is denied.
Baxter's third claim for relief alleges that Spring Valley "refused to accommodate and/or enter into the interactive process and subsequently terminated" her because she is African American. Doc. 9 at 3-4. Spring Valley contends that Baxter has attempted to "bootstrap" her ADA claimd into a racial discrimination claim with no independent evidence of racial discrimination. Doc. 36 at 16. Thus, Spring Valley argues that Baxter's complaint fails to state a racial discrimination claim, which can now be disposed of under Rule 12(c).
Assuming arguendo that Baxter's claim could survive a Rule 12(c) analysis, it cannot survive summary judgment because it fails the prima facie test. To state a § 1981 racialdiscrimination claim, a plaintiff must offer proof that (1) she belongs to a class of persons; (2) her job performance was satisfactory; (3) she suffered an adverse employment action; and (4) her employer treated her differently than a similarly situated employee who did not belong to the same protected class.
Finally, Spring Valley argues that, in the event any of Baxter's claims survive summary judgment, the court should conclude that Baxter failed to mitigate her damages by not seeking alternate employment, and she should be barred from recovery as a result. Doc. 36 at 17-18. Spring Valley alleges that Baxter has failed, despite repeated requests, to produce in discovery her alleged efforts to find replacement work; however, she did admit during her deposition that she applied for one job and utilized internet job boards to apply for other jobs. See Docs. 36 at 18 n.9; 36-3 at 23-29. Further, the Bailey declaration states that in Spring 2012 the hospital attempted to contact Baxter for a job interview, indicating that Baxter attempted to find work. Doc. 36-5.
Damages in employment discrimination actions, like all other types of actions, "require[] the claimant to use reasonable diligence in finding other suitable employment."
Although the degree of Baxter's efforts to find employment may ultimately be dubious, they are sufficient to create a genuine issue of material fact whether Baxter's efforts, in context, were reasonable. Moreover, the "job interview" Spring Valley offered Baxter in the Spring of 2012—almost two years after Baxter was placed on leave and during the course of this litigation—does not adequately show that Baxter refused to look for employment, especially given the pendency and tenor of this litigation. See Doc. 50. Thus, Spring Valley's request for summary judgment as to Baxter's failure to mitigate damages is denied.
Accordingly, it is HEREBY
