United States District Court, S.D. Mississippi, Southern Division
MEMORANDUM OPINION AND ORDER GRANTING MOTION FOR
GUIROLA, JR. CHIEF U.S. DISTRICT JUDGE.
THE COURT is the Motion for Summary Judgment , filed by
Defendant CLC of Pascagoula, LLC, d/b/a Plaza Community
Living Center in this employment discrimination case. The
Motion has been supplemented , and Plaintiff has
responded to the supplementation. Additionally, Plaintiff
Kymberli Gardner has filed two motions to strike the
affidavit  and testimony  of Brandy Gregg. Defendant
CLC has also filed a motion  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.
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.).
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.
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.
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.
to Strike Affidavit of Brandy Gregg
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.
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).
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.
to Strike Certain Testimony of Brandy Gregg
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.
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.
to Strike Portions of Affidavit of Plaintiff Kymberli
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.
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.
of Substantive Claims
Hostile Work Environment
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.
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
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).
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
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).
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 ...