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Reynolds v. Extendicare Health Services

November 1, 2006

KELLEY REYNOLDS, ET AL., PLAINTIFFS,
v.
EXTENDICARE HEALTH SERVICES, INC., ET AL., DEFENDANTS.



The opinion of the court was delivered by: S. Arthur Spiegel United States Senior District Judge

OPINION AND ORDER

This matter is before the Court on Plaintiffs' Motion to Reconsider Opinion and Order Granting Defendants' Motions for Summary Judgment (doc. 40), and Defendants' Response in Opposition (doc. 42). The Court held a hearing on this matter on October 25, 2006.

Plaintiffs' counsel's presentation impressed the Court and caused the Court a good deal of pause. The Court recognizes the difficult posture of counsel in arguing to the Court that it erred in its previous decision. Plaintiffs' counsel in this instance was incredibly well-prepared and skillfully represented his clients. That said, the Court has carefully reviewed its prior reasoning, the facts of this case, and the case authority Plaintiffs' Counsel cited at the October 25, 2006 hearing, and concludes that its previous decision should stand unchanged. For the reasons indicated herein, therefore, the Court DENIES Plaintiffs' Motion to Reconsider Opinion and Order Granting Defendants' Motions for Summary Judgment.

I. Background

Plaintiffs Kelley Reynolds and Linda Heine sued Defendants under the theory that Defendants terminated their employment in retaliation for Plaintiffs' legally protected behavior of reporting offensive behavior. On August 2, 2006, the Court entered an opinion granting Defendants summary judgment on Plaintiffs' retaliation and related claims. The Court found that neither Plaintiff had carried her burden to show that Defendants' proffered legitimate non-retaliatory reasons, the records of Plaintiffs' alleged performance problems, were pretext.

Plaintiffs' present motion challenges the Court's Order dismissing their claims, arguing the Court improperly applied the summary judgment standard and made every inference in favor of Defendants. Moreover, at the October 25, 2006 hearing, Plaintiffs argued that under Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 151 (2000), the Court erred by accepting the "unverifiable interested statement of Defendants" that they intended to put Plaintiff Reynolds on a performance improvement plan before she had engaged in protected activity. Defendants responded at the hearing that there are no material facts in dispute in the case as to Plaintiffs' performance problems, and that Plaintiffs incorrectly interpret and apply Reeves.

The cases of Plaintiffs are each distinct from one another, and though they involve the same Defendant companies, they involve different fact patterns, people, and timeframes. As such, the Court will review the arguments pertaining to each case separately.

II. The Case of Kelley Reynolds

Reynolds's Complaint is grounded in events of May 5, 2004, when she reported the lewd gesture of another employee, Carolyn Puckett, to her supervisor, the facility's administrator, Jennifer Fehn. According to Reynolds, Fehn did not take Reynolds's report of the lewd gesture seriously until another employee, Valorie Day, also reported the incident.

Fehn subsequently reported the incident, and about a week later, the Regional Director of Operations, Jason Hohlfelder, conducted a conference call with Reynolds, Fehn, and Day, to apologize and assure that Puckett would be disciplined. Two days after Reynolds had made her complaint about Puckett's behavior, the Director of Nursing, Ms. Bonnie Jones, presented Reynolds with a thirty-day performance improvement plan ("PIP").

Plaintiff Reynolds argues that her termination in early June 2004 came in retaliation for her having reported Puckett's lewd gesture. Reynolds argues her performance was acceptable, and that the timing of the PIP, only two days after she reported the offensive behavior, shows a causal link between her report and the action taken against her.

In its earlier decision, the Court found evidence in the record to show that Reynolds had performance problems prior to May 2004, and that Defendants actually drafted the PIP on April 26, 2004, well in advance of the incident with Puckett. The Court concluded that Defendants had a legitimate non-discriminatory reason for terminating Reynolds, her poor performance, and that Reynolds failed to establish that such reason was pretext.

In her Motion to Reconsider, Reynolds challenged the Court's factual conclusions (1) that Defendants decided to place Reynolds on the PIP before she made the complaint, (2) that Reynolds had a record of below average work and a lack of interest in improvement, and (3) that the real reason for her termination was for not meeting the goals of her PIP (doc. 40). Reynolds argues that the claim that the PIP was prepared in advance of her Complaint was "suspect in absence of any explanation for the significant delay in presenting the PIP" and suspect in the timing of its presentation after Reynolds's legally protected behavior of complaining about offensive behavior (Id.). At the hearing, Counsel suggested that the Court erred in accepting Defendants' testimony about when the PIP was prepared, arguing that the Court should disregard "unverifiable interested statements" that a jury is not required to believe.

Reynolds next argues that the record is "devoid of any objective evidence that would support the conclusion that prior to her Complaint," her performance was anything but acceptable (Id.). Reynolds argues the only evidence of the performance issue is the "post hoc, self-serving testimony of Defendants' decision makers that is unsupported by any documentation and squarely conflicts with Ms. Reynolds' testimony" (Id.). Finally, Reynolds argues that the Court's conclusion that she was fired for performance issues disregards material facts that (1) her supervisor Bonnie Jones told her she was improving, but that nonetheless she was being fired, (2) that Hohlefelder, who investigated her complaint, testified ...


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