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Gardner v. CLC of Pascagoula, LLC

United States District Court, S.D. Mississippi, Southern Division

February 6, 2017




         BEFORE THE COURT is the Motion for Summary Judgment [28], filed by Defendant CLC of Pascagoula, LLC, d/b/a Plaza Community Living Center in this employment discrimination case. The Motion has been supplemented [50], and Plaintiff has responded to the supplementation. Additionally, Plaintiff Kymberli Gardner has filed two motions to strike the affidavit [32] and testimony [34] of Brandy Gregg. Defendant CLC has also filed a motion [45] to strike Kymberli Gardner's affidavit in support of her response to the summary judgment motion. Each motion has been fully briefed. After due consideration, the Court finds that there is no question of material fact for the jury and that Defendant is entitled to judgment as a matter of law.


         Plaintiff Gardner began working at Plaza Community Living Center (“CLC”) as a Certified Nursing Assistant in April 2012. She alleges that an elderly white male resident at the facility, J.S., created a hostile work environment by sexually and racially harassing her and other employees. Gardner asserts that when black female employees complained about J.S.'s behavior, they were told that it was their job to take care of J.S. and they should “just put their big girl panties on.” According to Gardner, when white employees complained about a black resident, the resident was moved from the facility. (Am. Compl. 3, ECF No. 20). Gardner asserts that on October 6, 2014, J.S. attempted to grope her. When Gardner told J.S. “no, ” he punched her in the chest. (Id. at 2). She was forced to take leave and worker's compensation as a result. (Id.). She alleges that when she returned to work five months later, she was terminated because of the incident with J.S. (Id.).

         Gardner filed a charge with the Equal Employment Opportunity Commission, in which she alleged she was subjected to race and sex discrimination, a hostile work environment, and retaliation. (Compl. Ex. A, ECF No. 1-1). The EEOC issued a Dismissal and Notice of Rights letter six months later. (Compl. Ex. B, ECF No. 1-2). This lawsuit followed.

         Gardner does not explicitly set out her Title VII claims in the Amended Complaint, but the allegations are generally consistent with her EEOC charge of discrimination. Additionally, she brings state law claims “under Mississippi's doctrine of wrongful termination in violation of public policy established under McArn v. Allied Bruce-Terminix, ” gross negligence, negligent and intentional infliction of emotional distress, outrage, assault, and negligent supervision and retention. (Am. Compl. 4-5, ECF No. 20). CLC's summary judgment motion argues for dismissal of all claims.


         Before moving to analysis of the substantive claims, there are three preliminary matters affecting the evidence the Court may consider. Gardner requests that the Court strike the affidavit and certain testimony of Brandy Gregg, CLC's Director of Nursing, and CLC requests that the Court strike portions of Gardner's affidavit.

         Motion to Strike Affidavit of Brandy Gregg

         Gardner seeks to strike the affidavit of Brandy Gregg, which was submitted by CLC in support of its Motion for Summary Judgment as Exhibit L. (ECF No. 28-12). Gregg is the Director of Nursing at CLC. Gardner contends that Gregg's affidavit is self-serving, based wholly on inadmissible hearsay, and purports to provide medical opinions which Gregg is unqualified to give.

         The affidavit is short. It states that Gregg reviewed CLC's business records concerning J.S., and that these records are maintained by CLC in the ordinary course of its regularly conducted business activities. J.S. resided at CLC from March 7, 2006 to October 7, 2014, when he was transferred to Singing River Hospital psychiatric unit for evaluation. Gregg summarizes J.S.'s diagnosis history as including dementia, traumatic brain injury, personality disorder with aggressive behavior, Parkinson's Disease, and a number of additional illnesses. She concludes that “J.S. was unable to care for himself, and was dependent on the employees of Plaza CLC for his needs.” (Def. Mot. Ex. L 1 (¶3), ECF No. 28-12).

         The Court discerns no impermissible medical opinion in the affidavit. Gregg's recitation of J.S.'s medical condition was based on review of CLC's business records. As Director of Nursing, Gregg is competent to testify about CLC's records concerning J.S. See Rust v. Bank of Am., N.A., 573 F. App'x 343, 345 (5th Cir. 2014); Rosenberg v. Collins, 624 F.2d 659, 665 (5th Cir. 1980). Further, the business records are in the nature of hospital records, which are not inadmissible hearsay.

Rule 803(6) provides a hearsay exception for records kept in the course of any regularly conducted business activity, which would include hospitals. See Advisory Committee's Notes on Federal Rule of Evidence 803(6), 28 U.S.C. App., p. 723; Ricciardi v. Children's Hospital Medical Center, 811 F.2d 18, 22 (1st Cir.1987). The admissibility of hospital records under this exception is supported by the presumption of reliability that attaches to statements relating to treatment and medical history in such records. Ricciardi, 811 F.2d at 22.

Wilson v. Zapata Off-Shore Co., 939 F.2d 260, 271 (5th Cir. 1991). The Motion to Strike Brandy Gregg's affidavit will be denied.

         Motion to Strike Certain Testimony of Brandy Gregg

         Gardner asserts that Gregg's deposition testimony regarding her understanding of the reasons for Gardner's termination is inadmissible hearsay. Gardner contends that Gregg was not the person who terminated her, nor was Gregg involved in the termination decision, and therefore she could have no personal knowledge of the decision.

         As Director of Nursing, and the person who conducted the investigation into the events surrounding the J.S. incident, Gregg's personal knowledge of the reasons for Gardner's termination is readily apparent. “Personal knowledge may be demonstrated by showing that the facts stated reasonably fall within the sphere of responsibility of the affiant as a corporate employee.” Cutting Underwater Techs. USA, Inc. v. Eni U.S. Operating Co., 671 F.3d 512, 516 (5th Cir. 2012) (citations and quotation marks omitted). Gregg's “official title alone is enough to indicate the basis of personal knowledge.” Rutledge v. Liab. Ins. Indus., 487 F.Supp. 5, 7 (W.D. La. 1979). The Motion to Strike Brandy Gregg's testimony will be denied.

         Motion to Strike Portions of Affidavit of Plaintiff Kymberli Gardner

         CLC seeks to have portions of Gardner's affidavit [ECF No. 39] stricken as speculative. The Court agrees that certain of Gardner's statements are speculative because they concern another person's thoughts or motivations. Thus, the objected-to statements in paragraphs 8, 12, and 17 are disregarded. The portion of paragraph 29 that relates facts is admissible and will be considered. The reasons or motivation that Gardner ascribes to CLC in paragraph 29 are not facts within Gardner's personal knowledge, and therefore will be disregarded.

         Gardner's statements in paragraphs 22, 23, 26, and 27, concerning how she was made to feel by CLC's actions, are admissible. Those are matters within her personal knowledge and may be relevant to the hostile work environment inquiry. CLC's argument that Gardner's affidavit statements differ from her deposition testimony is not well taken. Gardner did testify regarding the negative impact of CLC's actions, and her affidavit supplements, rather than contradicts that testimony. See S.W.S. Erectors, Inc. v. Infax, Inc., 72 F.3d 489, 495 (5th Cir. 1996). The Motion to Strike is therefore granted in part and denied in part. The objected-to portions of Gardner's affidavit will be considered to the extent set out above.

         Analysis of Substantive Claims

         I. Hostile Work Environment

         Gardner claims that she was subjected to unwelcome sexual harassment by J.S., which created a hostile work environment. To prevail on her hostile work environment claim, Gardner must prove that: (1) she belonged to a protected group; (2) she was subjected to unwelcome harassment; (3) such harassment was based on gender or race; (4) the harassment complained of affected a term, condition, or privilege of employment; and (5) the employer knew or should have known of the harassment in question and failed to take prompt remedial action. Ramsey v. Henderson, 286 F.3d 264, 268 (5th Cir. 2002).

We determine whether a hostile work environment exists using a totality-of-the-circumstances test that focuses on the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating . . . and whether it unreasonably interferes with an employee's work performance.

Turner v. Baylor Richardson Med. Ctr., 476 F.3d 337, 347 (5th Cir. 2007) (ellipsis in original) (internal citation and quotation marks omitted). A plaintiff “must subjectively perceive the harassment as sufficiently severe or pervasive, and this subjective perception must be objectively reasonable.” Frank v. Xerox Corp., 347 F.3d 130, 138 (5th Cir. 2003). Title VII is intended only to prohibit and prevent conduct “that is so severe [or] pervasive that it destroys a protected class member's opportunity to succeed in the workplace.” Shepherd v. Comptroller of Public Accounts, 168 F.3d 871, 874 (5th Cir. 1999). Title VII's overall goal of equality is not served if a claim can be maintained solely based on conduct that wounds or offends, but does not hinder an employee's performance. Weller v. Citation Oil & Gas Corp., 84 F.3d 191, 194 (5th Cir. 1996). It is a “demanding” standard that requires proof of severe or pervasive conduct that can be characterized as “extreme.” Faragher v. City of Boca Raton, 524 U.S. 775, 778 (1998).

         CLC argues that Gardner's hostile work environment claim should be dismissed because the facts of this case do not meet the standard for such a claim. In support of its argument, CLC refers primarily to the testimony of Gardner and Nurse Toche, LPN, who was in J.S.'s room during some of the events at issue here. The testimony and CLC's argument seem to go to the fourth and fifth elements of a hostile work environment claim - whether the harassment affected a term, condition, or privilege of employment; and whether CLC knew of the harassment and failed to take prompt remedial action. Gardner's response also focuses on these elements.

         a. Gardner's Testimony

         Gardner testified that she had been extensively trained to deal with physically combative and sexually aggressive patients, and as a CNA she dealt with such patients “all the time.” (Gardner Dep. 21, 31-32, ECF No. 28-10). Gardner agreed that it was not unusual for a physically combative or sexually aggressive patient to reside in a nursing home. She testified that J.S. was a resident of CLC when she began working there, although she was not initially assigned to work with him. (Id. at 41-42). Nevertheless, Gardner knew J.S. and had observed his inappropriate physical and verbally abusive behavior. (Id. at 54-55). Gardner did not know if J.S. had a diagnosis of dementia. “We were always told he had - he would have a [urinary tract infection] or he would just be combative. We never was told if he had dementia or not.” (Id. at 58).

         When Gardner complained about J.S.'s behavior to Brandy Gregg, Gregg would laugh. (Gardner Aff. 2 (¶12), ECF No. 39). Gardner also spoke to Teri Reynolds, the administrator, about J.S. Reynolds told Gardner it was just J.S.'s age, and Gardner “needed to put [her] big girl panties on and go back to work.” (Id. (¶13)). “The supervisors would respond that we were supposed ...

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