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Litz v. University of Kentucky

United States District Court, Sixth Circuit

May 22, 2013

PAUL LITZ, Plaintiff,
v.
UNIVERSITY OF KENTUCKY, JAMES ALCORN, and PENNE ALLISON, Defendants.

MEMORANDUM OPINION AND ORDER

KAREN K. CALDWELL, District Judge.

This matter is before the Court on the Motion for Summary Judgment filed by Defendants University of Kentucky, James Alcorn, and Penne Allison. (DE 25). This case arises from Plaintiff Paul Litz's termination from the University of Kentucky Medical Center, where he was employed as an Emergency Transportation Communications Technician. Litz alleges that he discovered his supervisor made threatening comments about him and that when Litz complained about these comments, he was wrongfully terminated. Defendants argue, inter alia, that Litz actually abandoned his job by refusing to come to work. For the reasons stated below, Defendants' Motion will be granted, in part.

I. Background and Procedural History[1]

Paul Litz was employed at the University from 2007 until June 10, 2010. Beginning in 2008, Litz worked as an Emergency Transportation Communications Technician for the University's Medical Center. In this position, his duties included transporting adult and neonatal patients and working in dispatch. Defendant James Alcorn was Litz's supervisor at all relevant times. On May 13, 2010, Litz observed ambulance driver Bobby King reverse his ambulance into the mirror of another vehicle. Litz did not see any damage but heard a small pop. Two nurses were also present; neither said anything about the incident and boarded King's ambulance for their transport. Litz spoke to Scott Terry, the lead communications technician, and told him to send Alcorn an e-mail about the incident. Litz also sent an email detailing the incident to Alcorn. After receiving the e-mail, Alcorn called Litz's unit to speak with Terry. Following the conversation, Terry told Litz to schedule a meeting with Alcorn the next day. According to Litz, Terry appeared quite nervous when relaying this information.

Although unable to discern anything said during the call, Litz believed the phone conversation involved a discussion of his e-mail about the incident. Because the 911 units record all incoming calls, Litz accessed the call through the 911 computer and listened to the phone conversation between Alcorn and Terry. He wrote a transcript from memory after work, but returned to the University later that evening to make a recording of the conversation. Litz made an audio cassette recording and also took a digital recording on his iPhone. The transcript reveals Alcorn said, "I am so damn mad I could smack his... smack the shit out of him" and "I am so damn mad right now that if I was there right now I would kick his hind end, " during his conversation with Terry. (DE 25-2, Litz Dep. at 87-88; DE 25-5, Transcript of Recording).

After hearing these statements, Litz corresponded with Alcorn via text message on the evening of May 13, 2010, to set up a time to meet the next day. At 1:09 a.m. on May 14, 2010, however, Litz sent an e-mail to Defendant Penne Allison, Director of Emergency/Trauma Services, stating he had been threatened and needed her help. Allison advised him to have no further contact with Alcorn until she could investigate this complaint. Later that day, Litz met with Allison and Patti Howard. Howard manages the day-to-day operations in the University's emergency departments for Allison and supervises the communications staff, nurse care technicians, clerical staff, and pediatric emergency department staff. During the meeting, Litz reported Alcorn's comments, turned over the audio cassette recording of the conversation, and stated that he was uncomfortable at work because he feared for his safety. Around this time, Litz also contacted Michael Gay of the University's human resources department about this situation and to find out when Alcorn would be working next. (DE 25-2, Litz Dep. at 123-125). Litz did not work on May 15, 2010, but he did work on May 16 when Alcorn was not working. On May 17, 2010, Litz e-mailed Allison and Howard; Litz stated that he was uncomfortable working for Alcorn, and requested a transfer. This was the first time Litz mentioned a transfer. (DE 25-2, Litz Dep. at 124).

On May 19, 2010, Litz was informed he was suspended pending an investigation into whether University or department rules had been violated when he recorded the 911 dispatch line. (DE 25-10, Mem. from Howard and Allison). He was told he would be paid for the time off should the investigation show no policies were violated. The investigation was prompted by concerns that Litz had recorded confidential patient information. As part of this investigation, Litz met with Catherine Masoud, a University compliance analyst, to discuss his recording from the 911 computer. (DE 25-2, Litz Dep. at 110-113). When asked if there were other copies of the recording, Litz said the University now had the only tape he made of the call, but he did not tell Masoud about the digital copy he retained. ( Id. ) Litz also contacted Michelle Bailey of the University's human resources department to complain about his suspension. (DE 25-12, Employee Relations Case Documentation Form). He felt the real issue - being "threatened terroristic-ally" by Alcorn in the recorded call - was not being addressed adequately. ( Id. ) In response, Bailey told Litz that his complaints about Alcorn were under investigation, but that if he wished to pursue concerns of terroristic threatening, he should contact the University police department. (DE 25-13, E-mail from Bailey to Litz, May 26, 2010).

On or about May 26, 2010, Allison concluded her investigation of Litz's complaints about Alcorn. After speaking with several communications department employees, including Alcorn, she concluded that he was not a violent person. Alcorn was suspended without pay for horseplay and unprofessional conduct, but this was unrelated to Litz. Overall, Allison concluded Alcorn represented no threat to Litz's safety. Allison explained, "Well in actuality, he wasn't threatened directly by Jamie. He overheard a phone call." (DE 25-8, Allison Dep. at 30-31). The investigation of Litz was also completed at this time. He was told he could return to work, and he was paid for the time he was suspended.

Nevertheless, on May 27, 2010, Litz informed Allison that he could not work with Alcorn. (DE 25-14, E-mail from Litz to Allison, May 14, 2010). He proposed a transfer to the security department where he once worked, and he said a supervisor there, Ron Williams, was receptive to that idea. The next day, Litz met with Allison and Howard. They issued a written warning to Litz for making the phone recording in violation of University policies, and they told him that if he did not return to work he could be terminated. Allison and Howard told Litz he could apply for any posted position at the University. Litz also suggested that he could be transferred to the Emergency Department, but Howard told Litz he could not be transferred there he because lacked the necessary training. Litz thought this was incorrect, but he did not go online and apply. (DE 25-2, Litz Dep. at 117). Litz did apply for a security position at Good Samaritan Hospital, which is within the University's system. (DE 25-2, Litz Dep. at 134-135).

Allison followed up with an e-mail telling Litz that he must work as scheduled on May 29, May 30, and June 3, or "be subject to corrective action... including termination of employment." (DE 25-16, E-mail Allison to Litz, May 28, 2010). Litz responded that he was uncomfortable working below Alcorn and that if he would not be allowed to transfer, he would not report to work. (DE 25-16, E-mail Litz to Allison, May 28, 2010). He did not appear for work on either May 29 or 30, 2010. On June 1, 2010, Allison again sent an e-mail to Litz telling him to report to work or risk termination. (DE 25-17, E-mail Allison to Litz, June 1, 2010). She also suggested that, if he wants to make an official claim of hostile work environment or harassment, he should contact the University's Office of Institutional Equity and Equal Employment Opportunity. ( Id. ) Litz sent an e-mail to that office. (DE 25-2, Litz Dep. at 125-128). He did not, however, pursue the formal grievance process available to University employees. ( Id. ) He said that even though he never stated he wished to file a grievance, he believed Allison or Howard should have assumed that was his desire and provided him the means to do so. ( Id. at 142-143). The grievance process is explained in the Staff Handbook (DE 25-26) provided to Litz and is available online.

Litz continued to miss his scheduled shifts in June. Allison sent another e-mail stating that he faced termination for missing work. (DE 25-18, E-mail from Allison to Litz, June 3, 2010). Pursuant to University policy (DE 25-24), Litz's employment formally ended on June 10, 2010, due to his "job abandonment." On that day, Litz met with Howard to hand over his security badge. He also signed an "Employee Separation Sheet" and the reasons for separation selected are "Voluntary Quit, " "Job Abandonment (Policy 70)." (DE 25-23). At this time, Litz asked Howard what he could do next, and she again directed him to the Equal Employment Opportunity Office. (DE 25-2, Litz Dep. at 168-169).

Litz initially filed this action in Fayette Circuit Court naming the University as the sole Defendant. Litz claimed he was employed by the University, Alcorn was his supervisor, and Allison was Alcorn's supervisor. In his Complaint, Litz asserted four state-law claims: retaliation, retaliation for asserting grievance, wrongful discharge, and intentional infliction of emotional distress. (DE 1-1). The judge in the state court action dismissed the University based on sovereign immunity, but allowed Litz to file an Amended Complaint naming Alcorn and Allison as Defendants and adding an additional allegation that they violated his Constitutional rights pursuant to 42 U.S.C. § 1983. (DE 1-1). The remaining Defendants then removed the action to this Court asserting that this Court has federal question jurisdiction under 28 U.S.C. § 1331. (DE 1).

Litz has since filed a "First Amended and Clarified Complaint" in this Court. (DE 20). The claims asserted are not entirely clear. Litz appears to continue to assert state law claims of wrongful discharge (Counts I and III) and intentional infliction of emotional distress (Count IV). Litz also continues to assert a retaliation claim but clarifies that he asserts that he was retaliated against in violation of the First Amendment to the United States Constitution (Count II). The Court assumes that this claim is asserted under § 1983. The Plaintiff also continues to assert a due process claim under § 1983 (Count V) against Defendant Allison. Although the state court previously ...


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