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Jenkins v. Inspira Health Network, Inc.

United States District Court, D. New Jersey

March 28, 2018


          David Mikel Koller, Esq. KOLLER LAW PC Attorney for Plaintiff

          Michael J. Wietrzychowski, Esq. SCHNADER HARRISON SEGAL & LEWIS LLP and- Edward Justin Sholinsky, Esq. Emily Joan Hanlon, Esq. SCHNADER HARRISON SEGAL & LEWIS LLP




         Plaintiff Eunice Jenkins (“Plaintiff”) filed this law suit against her previous employer, Inspira Health Network, Inc. (“Defendant”), alleging race discrimination and retaliation under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000 et. seq. (“Title VII), and the New Jersey Law Against Discrimination (“NJLAD”).

         Before the Court is Defendant's motion for summary judgment on all claims pursuant to Fed.R.Civ.P. 56. [Docket Item 29.] Plaintiff opposes the motion [Docket Item 34], and Defendant has submitted a reply brief. [Docket Item 36.] The principal issues presented by Defendant's motion are: (1) whether Plaintiff's termination occurred under circumstances that gave rise to an inference of discrimination, as required to establish a prima facie case of discrimination under Title VII and NJLAD; and, (2) whether the requisite causal connection of Plaintiff's protected activity to her termination exists as required to establish retaliation under Title VII and NJLAD. For the reasons that follow, the Court finds there are no genuine disputes of material fact and that Plaintiff failed to demonstrate any discriminatory or retaliatory animus behind her termination. Accordingly, the Court will grant Defendant's motion.

         II. BACKROUND[1]

         The Court begins with an examination of the factual record in this action. Defendant hired Plaintiff, an African American woman, as a staff registered nurse (“RN”). (SMF ¶ 1.) Plaintiff worked for Defendant from August 2007 to February 2014. (SMF ¶ 1.) Defendant initially employed Plaintiff as a staff nurse at one of its inpatient hospice units. (SMF ¶ 2.) Plaintiff was later transferred to an “in the field” position, providing hospice home care. (SMF ¶ 2.) Throughout her employment, Health Professionals and Allied Employees (“the Union”), represented Plaintiff. (SMF ¶ 1.)

         A. Plaintiff's Employment Prior to 2011

         Between 2007 and 2011, Plaintiff had a number of supervisors, including Jane Speak (“Speak”) and Faith Neale (“Neale”). (SMF ¶ 3.) All supervisors were tasked with evaluating the RNs, such as Plaintiff, and regularly conducted annual reviews. (Speak Dep. 19-20: 11-24, 1-13.)

         Plaintiff's 2007-2008 annual review “rated Plaintiff as ‘3' [out of 5] or ‘meets expectations.'” (SMF ¶ 17.) In July of 2008, Plaintiff received counseling for excessive absences. (SMF ¶ 18.) Plaintiff's 2008-2009 review similarly exhibited an overall rating of “3, ” but this time Neale noted that Plaintiff needed to improve the accuracy of her notes and medication orders. (Def. Ex. 9.) In 2009, Plaintiff received verbal counseling, but Plaintiff disputes the specific performance issues that caused it. [Docket Item 33-1 at ¶ 10.]

         Plaintiff's job performance, including recordkeeping, productivity, licensure, and service to her patients declined markedly in 2010. On her next annual report for 2009-2010, Plaintiff received an overall rating of “2” or “Needs Improvement.” (SMF ¶ 21.) The report stated that Plaintiff struggled to complete her work and had been failing to provide timely documentation. (SMF ¶ 21.) In April of 2010, Plaintiff “received written counseling for poor work performance, ” notably Plaintiff's low productivity. (SMF ¶ 24.) Plaintiff argues that the productivity issue was possibly a result of her “very low” census.[2] (Pl. Dep. 122:17-18.) Nevertheless, shortly thereafter Plaintiff was suspended due to an expired CPR certification. (SMF ¶ 25.)

         After the suspension, Plaintiff was again counseled for poor work performance in September 2010. (SMF ¶ 26.) This time, the counseling form addressed two complaints made against Plaintiff by patient family members. (SMF ¶ 26.) Plaintiff disputes the complaints and contends “it wasn't just [her]. Other nurses experienced [this].” (Pl. Dep. 129:3-13.) Later, in January and February of 2011, Plaintiff received more counseling based on a doctor's complaint that Plaintiff discharged a patient without informing the doctor, failed to leave behind medication or instructions with the patient, and for continually being late with her Plans of Care (“POC”). (SMF ¶¶ 27, 28.)

         B. Plaintiff's Relationship with Speak During 2011 and Speak's Racial Comments in 2011

         In 2011, Defendant's Human Resources department (“HR”) approached Plaintiff regarding an allegation that Speak “had made a remark about African American Employees being ‘monkeys.'” (SMF ¶ 36.) A co-worker brought the comment to HR's attention. (Pl. Dep. 27:1-9.) According to Plaintiff, the RNs and healthcare providers had a “communication line” where voice messages were left as a form of communication and accessed using a code. (Id. at 28:18-20; 29:9-12.) Speak left a message on this communication line providing a directive to Plaintiff “because you're the low monkey on the totum pole.” (Id. at 28:18-24.) Speak admitted she made this comment, but states “that was made in general. It was not made at [Plaintiff] and it was not in context . . . having anything to do with racial.” (Speak Dep. 68:7-14.)

         Plaintiff alleges Speak made additional racially-discriminatory comments, such as: that Plaintiff's hair looked like a “brilopad exploded”; “women down south like fried chicken, cornbread, things of that sort”; and “us white girls have to stick together.” (SMF ¶ 36.) (Pl. Dep 37:1-7, 17:25-18:1.) Speak denies she made any of these statements. (Speak Dep. 68:1-3.) It is undisputed, however, that in October 2011 Speak saw a photo of Plaintiff from when she was in high school and said, “oh jeez . . . I remember these. These are called Afro Puffs.” (Id. at 32:1-8.)

         According to Plaintiff, Speak treated her “differently when it came to documentation.” (Pl. Dep. 35:11-14.) Plaintiff felt Speak unjustifiably harassed her with emails about work issues that did not have anything to do with her patients. (Id. at 18:20-25; 19:1-11.) According to Plaintiff, for everyone else, Speak “would just leave a note on the [communication] line and get it done[, ] . . . but with me, I was written up every time.” (Id. at 20:1-4.) However, Plaintiff was unable to name any specific nurses whom Speak opted not to write up. (Id. at 21:2-8; 21:9-11.) Plaintiff further stated that both Speak and Neale were “discriminatory to [her]” because they excused an LPN, Mary Celeste, from assisting Plaintiff with a procedure the LPN performed for Caucasian RNs, such as Debbie Miller and BJ Bates. (Id. at 25:8-25 to 26:1-3.)

         C. Plaintiff's Complaint to HR and Her Employment After Speak's Departure

         On June 22, 2011, Speak placed Plaintiff on a performance improvement plan (“PIP”) “to address her productivity, documentation, and patient care performance issues.” (SMF ¶ 30; Pl. Dep. 48:4-9; Def. Ex. 18.) In November 2011, Plaintiff went to Steve Pepper (“Pepper”), who was a member of Defendant's HR staff at the time, to discuss her feelings about “being discriminated against and harassed, and the reasons why.” (SMF ¶ 40; Pl. Dep. 41:18-20.) Defendant took no action in response to Plaintiff's complaint about Speak and removed Speak from her supervisory position in December, 2011, as explained next. Pepper, acting on behalf of Defendant, “conducted an investigation into Ms. Speak's comment.” (SMF ¶ 38.) Speak was contacted by Pepper and met with him and another woman from HR to discuss the incident and “how [Plaintiff] was offended.” (Speak Dep. 39:1-15.) HR explained that Speak should watch what she says and issued a write up. (Id. at 39:15-19 to 40:1-7.)

         Speak testified that any disciplinary action taken after Plaintiff met with Pepper was purely work-related. (Speak Dep. 45:1-5.) Defendant, meanwhile, maintains that Speak's actions are mischaracterized because Defendant removed Speak from her Supervisor position in December 2011. (SMF ¶ 38; Docket Item 37 ¶ 16.) To that end, Defendant produced a memo explaining that Speak's behavior was “in direct violation of the SJH Anti-Harassment and Non-Discrimination policy.” (Def. Ex. 35.) Defendant disciplined Speak for similar comments on “9/20/10 and 3/21/11, ” concluded that her “actions contributed to creating a hostile work environment, ” and removed Speak from her supervisory role. (Def. Ex. 35.) Shortly thereafter, Speak left employment with Defendant in January 2012. [Docket Item 37 ¶ 16; Def. Ex 38.] Neale took over Speak's team, temporarily managing both teams, including Plaintiff's. (Speak dep. 79:14-21; Pepper Dep. 18:1.)

         Jennifer Slotwinski (“Slotwinski”), a Caucasian woman, became Plaintiff's direct supervisor in February of 2012 when she took over Neale's management of Plaintiff's team. (Speak. Dep. 79:3-8); (Pl. Dep. 166:10-25.) Subsequently, Neale became the Director of Hospice, another supervisory role. [Docket Item 33 at ¶ 4]; (SMF ¶ 51.) Although Plaintiff states Slotwinski did not harass Plaintiff, nor have any racial bias towards her, Plaintiff alleges that Slotwinski told Plaintiff she had been instructed to “find something on her”. (Pl. Dep. 163:20-25 to 164:1-7.) According to Plaintiff, this was in a meeting with herself and Pepper. (Id. at 162:7-11.)

         Meanwhile, Plaintiff's job performance declined in 2012. Neale wrote Plaintiff up in September 2012 regarding multiple patient care complaints concerning the quality of Plaintiff's service. (SMF ¶ 52; Def. Ex. 24.) Plaintiff disputes the reasons for the write up and claims Neale's actions at this time were retaliatory. [Docket Item 33-1 at ¶ 52.] In support of this claim, Plaintiff proffers she “was called into a meeting at least once a week. There were times that [she] was questioned about [her] behavior and it had to be taken out of [her] chart because it was nonsense so to speak.” (Pl. Dep. 57:18-21.) Plaintiff also documented this allegation in writing on her counselling form. (Def. Ex. 24.)

         On January 23, 2013, Plaintiff complained to HR that Neale retaliated against her based-on Plaintiff's complaints about Speak. (SMF ¶ 41.) In her letter, Plaintiff alleged she was subjected to continuous retaliation starting in 2011. (Pl. Dep. 70:19-24.) According to Plaintiff, Neale made no racial comments towards Plaintiff; instead, Plaintiff linked Neale's retaliation to Plaintiff's complaint against Speak because Neale “didn't show that type of behavior towards [Plaintiff] until after [Speak] left.” (Id. at 72:1-9.)

         Pepper investigated the alleged retaliation and conducted multiple interviews with Plaintiff. (SMF ¶ 41-42.) He contacted Plaintiff after receipt of her letter and proceeded to have conversations with managers and other employees, which Plaintiff requested. (Pepper Dep. 18:13-16; SMF ¶ 42.) According to Pepper, Neale and the other employees expressed concern with Plaintiff's work performance, and he denied the reason behind any of these issues was unfair treatment. (Pepper Dep. 19:9-17; SMF ¶ 42.) Ultimately, Pepper came to the conclusion that “the allegations were not substantiated.” (Pepper Dep. 21:14-16.)

         Plaintiff also alleges “she was subject to discriminatory treatment because other nurses with the same performance issues as Plaintiff had were not disciplined for those issues, ” and that Defendant's response to her late POCs was “more harsh.” (SMF ¶ 43; Pl. Dep. 73:16-17.) In this context, Plaintiff refers to two employees, Debbie Miller and Mary Jane Stephenson (“Stephenson”), both of whom were RNs, but did not identify these other employees to Pepper when she complained of retaliation. (Pl. Dep. 73:9-12; 78:13-16.) Plaintiff does not dispute that Defendant terminated Stephenson “for performance issues, ” on the grounds that she has no sufficient knowledge of the matter. (SMF ¶ 46; Docket Item 33 at ¶ 46.)

         On January 31, 2013, “Plaintiff's supervisors suspended her for discharging a patient from hospice without the order of a doctor or the Hospice medical director.” (SMF ¶ 55.) Plaintiff disputes the suspension on the basis that the doctor was, in fact, notified because Plaintiff called his office directly. (Pl. Dep. 160:1-7.)

         Slotwinski completed Plaintiff's 2012-2013 annual review, giving Plaintiff a “1” or unsatisfactory. (SMF ¶ 56.) Plaintiff does not dispute the contents of the written document, which concludes Plaintiff “had improved the timeliness of her paperwork” but noted “Plaintiff needs to show improvement in her visit notes, admission documentation and IDT meeting notes, specifically in timeliness, quality, and quantity.” (SMF ¶ 56; Def. Ex. 25.) Plaintiff disagreed with the findings of the review, to the extent that Slotwinski was “writing this based on what [had] already been written” in the past about Plaintiff, as documented in her employee file. (Pl. Dep. 166:1-14.)

         On July 9, 2013, Slotwinski verbally counseled Plaintiff for failing to provide required forms to a transfer patient. (Def. Ex. 26.) Plaintiff disagreed with this allegation, stating that she did not think Slotwinkski was retaliating against her, but believed Slotwinski was “misinformed” by another supervisor, BJ Bates. (SMF ¶ 56; Pl. Dep. 168:11-13.) Plaintiff (who was on Team A) wrote her objection on the counselling form stating: “This was an A team patient. B team does not have access to A team patients unless downloaded and sent from hospice office.” Def. Ex. 26). Plaintiff did not think that Slotwinski was retaliating against her. (SMF ¶ 57.)

         In August 2013, Slotwinski placed Plaintiff on another PIP, noting Plaintiff needed improvement with productivity, patient notes, and teamwork. (SMF ¶ 59; Def. Ex. 27, 28.) However, Plaintiff felt the PIP was inappropriate because of her low census and because it was repetitive in addressing Plaintiff's previous write-ups. (Pl. Dep. 171:2-16; 172:21-25.) “During the 30-day review for the [PIP] . . . Plaintiff continue[d] to struggle with low productivity. (SMF ¶ 61; Def. Ex. 29.) However, the review also noted that Plaintiff improved in the timeliness of her visit notes, and with her admission of paperwork and notes. (Def. Ex. 29.) Plaintiff also volunteered for late admissions and fill in work; Plaintiff stated the review showed improvement but she still continued with the plan. (Pl. Dep. 174:11-22.)

         D. Plaintiff's Employment Under Yvonne Elsey ...

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