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Ezell v. Renal Care Group, Inc.

United States District Court, W.D. Kentucky, Paducah Division

May 1, 2018

SHANNA EZELL, PLAINTIFF
v.
RENAL CARE GROUP, INC., DEFENDANT

          MEMORANDUM OPINION & ORDER

          THOMAS B. RUSSELL, SENIOR JUDGE UNITED STATES DISTRICT COURT

         This matter is before the Court on Defendant Renal Care Group, Inc's ("Renal Care")[1] Motion for Summary Judgment. [R. 20.] Plaintiff Shanna Ezell responded, [R. 24], and Renal Care replied, [R. 28]. Fully briefed, this matter is now ripe for adjudication. For the reasons stated herein, Renal Care's Motion for Summary Judgment, [R. 20], is GRANTED IN PART AND DENIED IN PART

         BACKGROUND

         On May 23, 2013, Ezell started working for Renal Care as a clinical certified hemodialysis technician at the Paducah dialysis clinic. [R. 24-1 at 8-9 (Ezell Depo.).] Ezell worked under the supervision of Brooklyn Nicks, the Clinical Manager. [Id. at 16.] According to a Renal Care corrective action form, Ezell was terminated from her position on October 24, 2014 after prior warnings "regarding attendance." [R. 24-11 at 1 (Termination Form).]

         Renal Care's attendance/tardiness policy states: "Regular attendance and punctuality are essential for providing efficient and quality patient care." [R. 24-3 at 1 (Attendance Policy).] Ezell received a copy of this policy on May 28, 2013. [R. 24-1 at 16.] The policy applies to all employees, and all employees "are subject to the corrective action process for excessive occurrences of absenteeism and/or tardiness." [R. 24-3 at 1.] An "unscheduled/unexcused absence" is defined as "[a] request that is not submitted within 48 hours . . .." [Id.] Furthermore, "[a] physician's note may be required for unscheduled absences at the discretion of the Location Manager. This note does not necessarily excuse the absence. A pattern of excessive absences, with or without a physician's note, may result in corrective action." [Id.] The policy defines tardiness as occurring whenever employees "are not at their work station at the scheduled start time of their shift." [Id.] It requires that "[e]mployees who are absent or tardy . . . notify their supervisor . . . prior to the start of their scheduled shift" with as much notice as possible. [Id.] "An employee who fails to report for work and fails to notify his/her supervisor on a scheduled day will be subject to the corrective action process." [Id.]

         The policy implements a set of guidelines to determine when corrective action is necessary: "The time frame used to record unscheduled absences and tardiness will be for a 12 month period. This time period will be measured from the current date back to the previous 12 months. . . . Occurrences of absenteeism and tardiness will be added together to determine the need for corrective action . . .." [Id. at 2.] Under the policy, six to seven absences/tardiness qualifies the employee for the standard of "Needs Improvement, " and greater than seven absences/tardiness qualifies the employee for the standard of "Unsatisfactory." "An employee who has reached the "Needs Improvement" level of absenteeism or tardiness will be subject to the corrective action process. . . . Depending on the nature and severity of the infraction, steps in the corrective action process may occur." [Id.]

         On March 20, 2014, Ezell received "Documented Counseling, " which is defined on the "Corrective Action Form" as "a documented discussion to address the required need for improvement prior to initiating further corrective action." [R. 24-4 at 1 (Doc. Counseling Form).] According to the corrective action form, this was due to "Numerous tardies ranging up to 2 hours late as well as several unscheduled absences, (7/15, 7/16, 9/12, 9/13, 11/11, 12/13)." [Id.] In her deposition, Ezell testified that she was absent July 15-16, 2013 due to being sick with the flu and September 12-13, 2013 due to strep throat and a sinus infection. [R. 24-1 at 24-25]. Ezell testified that she was sick on December 12, and she received a doctor's note excusing her from work for the next four days. [Id.] She testified further that she called Nicks that day to inform her that she could not work the following four days. [Id.] Ezell provided a doctor excuse note for her absences on September 12 and 13, [R. 24-19 at 2 (Medical Excuse)], as well as the doctor note that excused her from work for four days in December, [Id. at 3], On May 20, 2014, Ezell received a "Written Warning, " which is "a documented warning to address expectations and need for immediate improvement." [R. 24-5 at 1 (Written Warning).] The corrective action form's "description of situation" reads: "5/1/14 staff 20 minutes late, 5/13/14 staff member called in, 5/16/14 staff only worked 0546-0710, went home sick but did not notify Clinic Manager until 5/19/14." [Id.] Ezell disputed part of this account in her deposition, testifying that she attempted to contact Nicks on May 16, but she could not reach her, so she left a voicemail. [R. 24-1 at 28-29.] Ezell did not provide a doctor excuse note or medical documentation for any of these instances.

         On July 14, 2014, Ezell received a "Final Written Warning, " which is "a documented warning to address expectation and need for immediate improvement following previous warning(s) or immediately for more severe misconduct or performance." [R. 24-6 at 1 (Final Written Warning).] The corrective action form's "description of situation" reads: "7/9/14 staff member called out for shift at 0548. Shift was scheduled to begin at 0540. Shanna stated that she did not have managers [sic] phone number, No. is listed on staffing schedule. Shanna did not call the clinic until 0545 to obtain manager's number." In her deposition, Ezell testified that she cannot remember why she was absent on July 9, but she "called and called all morning long" and no one at the clinic would answer the phone. [R. 24-1 at 32-33.] Ezell did not provide a doctor excuse for this absence.

         On September 1, 2014, while at work, Ezell started to experience abdominal pain. [Id. at 47-48.] According to Ezell's deposition, her charge nurse walked her to the emergency room at Lourdes Hospital to be seen by a doctor. [Id.] She was admitted to the hospital for "further evaluation, additional testing, monitoring, IV therapy and antibiotics and pain control." [R. 21-11 at 5 (Lourdes Documentation).] On September 2, 2014, after staying the night at the hospital, Ezell decided that she needed to take FMLA leave because she "had been getting sick and getting sick up to the point of being hospitalized and [she] needed to take a rest and see some doctors." [R. 24-1 at 51.] According to Ezell's deposition, she called Nicks that day, and informed her that she was hospitalized and explained her diagnosis. [Id. at 45.] Furthermore, Ezell testified:

And I told her that I felt that I needed to take FMLA because I had been -1 kept getting sick up to the point of now being hospitalized. And that my blood work was abnormal. And that I had an unknown virus and I needed to take FMLA so I could get my health together. I told her I had pre-appendicitis. I was under observation for surgery.

[Id. at 45:3-9.] Ezell testified that Nicks told her that she did not qualify for FMLA unless she had surgery. [Id. at 57:1-4, 57:15-19.] Nicks denied this in her deposition. [R 21-12 at 22:25- No. 23:2 (Nicks Depo.).] Furthermore, Nicks testified that they did discuss FMLA; however, she told Ezell what she tells all employees: "I don't know what you qualify for because that is not a decision made by me, you need to call the human resources leave office to talk with them to obtain the paperwork from them for the physician, and then they'll notify me if you're approved." [Id. at 22:1-7.]

         Ezell was discharged from the hospital on September 2, 2014, with no medication to be taken at home and no restrictions on activities. [R. 24-7 at ¶ 4.]The doctor noted that he suspected the abdominal pain was related to constipation as he saw "no other inflammatory changes to suggest appendicitis." [Id. at 25.] Furthermore, he stated that this was further supported by "a normal white count, [2] lack of fever and normal vital signs." [Id.] According to Nicks's deposition, Ezell was not disciplined under the attendance policy for these particular absences. [R. 21-12 at 19:18-20:17.]

         On September 8, 2014, Ezell was seen at the emergency room at Massac Memorial Hospital for abdominal pain. [R. 24-8 at 1 (Massac Report).] Ezell was seen by a physician at 16:43, [Id. at 1], and departed at 18:24, [Id. at 5]. Under "Departure, " the report from Massac stated that Ezell's condition was "good" and instructed Ezell to increase intake of fluids, take "Levsin 0.125" for pain, and "recheck PMD one week." [Id.] Ezell testified in her deposition that on September 29, 2014, she was having heart palpitations and a fever while working at different Renal Care clinic in Metropolis, and her physician instructed her over the phone to leave work and go to the emergency room. [R. 24-1 at 35.] She further testified that she told the clinical manager in Metropolis, Julie Roberts, that her physician instructed her to go to the emergency room, but she could not recall if she spoke to Nicks about the incident. [Id. at 35-36.] On the sign-in sheet for the Baptist health emergency room, Ezell listed many symptoms, including "severe abdominal pain." [R. 24-9 at 1 (Baptist Sign-In Sheet).] The doctor's clinical impression from the visit also listed abdominal pain, and instructed Ezell to follow up with her doctor because she needed testing that could not be done in the emergency room. [R. 24-9 at 6-7 (Baptist Doctor Notes).] She left the emergency room at Baptist Health without being admitted into the hospital. [Id. at 28.]

         Ezell testified in her deposition that on October 11, 2014 she worked two hours of her shift, and her charge nurse sent her home due to a fever, a bloody, irritated esophagus, and an infection. [R. 24-1 at 40:2-6.] She testified further that both her and the charge nurse attempted to contact Nicks but received no response. [Id. at 40:9-12.]

         On October 13, 2014, Ezell was put on "Disciplinary Suspension" due to her absence on September 29, 2014. [R. 24-10 at 1 (Discip. Suspension).] "Disciplinary Suspension" involves "unpaid time away from work implemented after consultation with HR." [Id.] According to the corrective action form, Ezell received this corrective action because she told the staff that her doctor instructed her to go to the emergency room, but she failed to inform the clinical manager of the Metropolis clinic or the clinical manager of her home clinic. [Id.] In her deposition, Ezell testified that when Nicks told her she was being suspended, she did not understand the reasoning for the action because she had provided medical documentation for her absences. [R. 24-1 at 36:23-37:2.] Furthermore, she testified that she told Nicks that she felt she was being discriminated due to her health issues, and Nicks was retaliating against her because she complained about this discrimination. [Id. at 37:4-7.]

         On October 24, 2014, Ezell was terminated. [R. 24-11 at 1.] Termination is defined on the corrective action form as "employment ended due to insufficient improvement related to performance or behavior or as a result of misconduct requiring immediate termination." [Id.] The description of the situation on the form states: "On 10/11/2014 staff member only worked 2 hours of her shift, told staff that she was sick and needed to leave. She attempted to contact CM one time, but did not wait for a return call leaving the clinic before speaking to the CM." [Id.]

         On October 21, 2016, Ezell filed a complaint in Morgan Circuit Court in Kentucky, alleging counts of disability discrimination, FMLA interference, FMLA retaliation, and KCRA retaliation. [R. 1-1 at 8-10.] On November 15, 2016, Renal Care removed the case to federal court. [R. 1.] On November 28, 2016, Renal Care filed the Motion for Summary Judgment that is currently before the Court. [R 20.]

         STANDARD

         Summary judgment is appropriate when the record, viewed in the light most favorable to the nonmoving party, reveals "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). A genuine dispute of material fact exists where "there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). The Court "may not make credibility determinations nor weigh the evidence when determining whether an issue of fact remains for trial." Laster v. City of Kalamazoo, 746 F.3d 714, 726 (6th Cir. 2014) (citing Logan v. Denny's, Inc., 259 F.3d 558, 566 (6th Cir. 2001); Ahlers v. Schebil, 188 F.3d 365, 369 (6th Cir. 1999)). "The ultimate question is 'whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.' " Back v. Nestlé USA, Inc., 694 F.3d 571, 575 (6th Cir. 2012) (quoting Anderson, 477 U.S. at 251-52).

         The moving party must shoulder the burden of showing the absence of a genuine dispute of material fact as to at least one essential element of the nonmovant's claim or defense. Fed.R.Civ.P. 56(c); see also Laster, 746 F.3d at 726 (citing Celotex, 477 U.S. at 324). Assuming the moving party satisfies its burden of production, the nonmovant "must-by deposition, answers to interrogatories, affidavits, and admissions on file-show specific facts that reveal a genuine issue for trial." Laster, 746 F.3d at 726 (citing Celotex, 477 U.S. at 324). "[N]ot every issue of fact or conflicting inference presents a genuine issue of material fact." Street v. Bradford & Co., 886 F.2d 1472, 1477 (6th Cir. 1989). The test is "whether the party bearing the burden of proof has presented a jury question as to each element in the case." Hartsel v. Keys, 87 F.3d 795, 799 (6th Cir. 1996). Nor will mere speculation suffice to defeat a motion for summary judgment: "[t]he mere existence of a colorable factual dispute will not defeat a properly supported motion for summary judgment. A genuine dispute between the parties on an issue of material fact must exist to render summary judgment inappropriate." Monette v. Elec. Data Sys. Corp., 90 F.3d 1173, 1177 (6th Cir. 1996).

         DISCUSSION

         Ezell brings four different causes of action: interference under the FMLA, retaliation under the FMLA, retaliation under the KCRA, and disability discrimination under the KCRA. [R. 1-1 at 7-9.] Renal Care moves for the Court to grant summary judgment on all four claims. [See R. 20-1.] The Court will address each cause of action in turn.

         I. The Family Medical Leave Act (FMLA)

         "The FMLA entitles qualifying employees up to 12 work weeks of leave under specified circumstances, including if they are suffering from a serious health condition." Tennial v. United Parcel Serv., Inc., 840 F.3d 292, 307 (6th Cir. 2016) (citing 29 U.S.C. § 2612(a)(1)(D)). The Sixth Circuit "has recognized two theories of recovery under the FMLA: interference and retaliation." Id. (citing Seeger v. Cincinnati Bell Tel. Co., LLC, 681 F.3d 274, 282 (6th Cir. 2012)). In this case, Ezell brings claims under both theories.

         A. FMLA Interference

         The FMLA makes it "unlawful for any employer to interfere with, restrain, or deny the exercise of or the attempt to exercise, any right provided" by the FMLA. 29 U.S.C. § 2615(a)(1). "[A]n employer violates the FMLA under the 'interference' theory if it fails to provide its employee with his FMLA entitlements or interferes with an FMLA-created right, regardless of the employer's intent." Casagrande v. OhioHealth Corp., 666 Fed.Appx. 491, 496 (6th Cir. 2016) (citing Arban v. W. Publ'g Corp., 345 F.3d 390, 401 (6th Cir. 2003)).

         Employees may prove claims of FMLA interference using the McDonnell Douglas burden-shifting framework. Demyanovich v. Cadon Plating & Coatings,LLC,747 F.3d 419, 427 (6th Cir. 2014) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973)). Under that framework, "the employee has the initial burden of establishing his prima facie case; if he does so, the burden shifts to the employer to articulate a legitimate, non-discriminatory reason for its actions; finally, the employee has the burden of rebutting the ...


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