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Cotten v. Mary Scott Nursing Home Inc.

United States District Court, S.D. Ohio, Western Division

May 17, 2018




         Plaintiff Wilhelmina Cotten ("Plaintiff' or "Cotten"), a female former employee of Defendant Mary Scott Nursing Home, Inc. ("Defendant" or MSNH"), alleges that Defendant unlawfully terminated her in retaliation for her complaining about being sexually harassed by one of Defendant's residents and Defendant's not taking steps to prevent harassment. Plaintiff claims that Defendant's unlawful retaliation violated Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-5 et seq. (Claim One), and Ohio Rev. Code § 4112.01 et seq. (Claim Two). Doc. #1, ¶¶ 28-41, PAGEID #5-7. Defendant has filed a Motion for Summary Judgment on both claims. Doc. #28. For the reasons set forth below, Defendant's Motion is OVERRULED.


         Plaintiff was hired by Defendant as an at-will employee as a State Tested Nursing Assistant ("STNA") in March 2015. Doc. #27, PAGEID #105, 169-70. Plaintiff later became a Social Service Assistant ("SSA"), a job which she performed well, and "MSNH never provided Ms. Cotton any type of write-up or documented verbal counseling prior to her termination." Doc. #35, PAGEID #479 (citing Doc. #27, PAGEID #126-27; Doc. #35-1, ¶ 27, PAGEID #502). As an SSA, Plaintiff was supervised by Samantha Clark ("Clark"), and also continued to be supervised by Saundra Roundtree ("Roundtree"), her former supervisor, since "she could still possibly perform STNA duties[.]" Doc. #28, PAGEID #220 (citing Doc. #28-2, ¶ 4, PAGEID #246; Doc. #28-3, ¶ 5, PAGEID #251).

         One of Plaintiff's duties as an SSA was to supervise residents of MSNH during their legally-guaranteed smoking breaks, which occurred at regular intervals throughout the day. Dondi Myers ("Myers"), Defendant's Unit Manager, was responsible for creating the schedule for when certain employees are to take certain residents on their smoke breaks. Doc. #28, PAGEID #220-21 (citing Doc. #28-1, ¶¶ 6-7, PAGEID #241). On July 17, 2015, Plaintiff, without another staff member accompanying her, took several residents outside for a smoke break, during which she was sexually harassed by a Jerald Simon ("Simon"), one of Defendant's mentally disabled residents. Doc. #27, PAGEID #143; Doc. #28-1, ¶¶ 10, 13, PAGEID #242, 243. Plaintiff reported the harassment to Myers, who laughed and stated, "well, he's human, he's a man." Doc. #35, PAGID #479 (alterations removed) (quoting Doc. #27, PAGEID #147). Nonetheless, Myers ordered Plaintiff not to interact with Simon. Doc. #28-1, ¶ 10, PAGEID #242. Plaintiff called Steve Dunson ("Dunson"), MSNH's administrator at the time, to report Simon's harassment and what she felt were Myers's inadequate responses. Dunson informed Plaintiff that, if Simon harassed her again, he would be removed from the facility. Doc. #35, PAGEID #480 (citing Doc. #35-1, ¶ 6, PAGEID #499).[1] Defendant subsequently altered Simon's Care Plan so that Plaintiff would never be responsible for taking Simon out for smoke breaks. Doc. #35-1, ¶7 PAGEID #499. Further, at Plaintiff's suggestion, a policy was implemented that required two staff members to accompany residents on every smoke break. Doc. #27, PAGEID #137-38. However, Plaintiff claims that Myers took no steps to effectuate the two-employee policy, and, consequently, Plaintiff took residents out for smoke breaks without being accompanied by another staff member. Doc. #28-1, ¶ 17, PAGEID #244; Doc. #35-1, ¶ 8, PAGEID #499.

         On or about August 25, 2015, Plaintiff, without another staff member accompanying her, took several MSNH residents, including Simon, outside for a smoke break, during which she was again sexually harassed by Simon. Plaintiff reported the harassment via telephone to Zach Collins ("Collins"), MSNH's administrator at the time. Doc. #27, PAGEID #157-58. Collins allegedly instructed Plaintiff not to allow Simon to participate in smoke breaks until his Care Plan could again be changed. Doc. #35, PAGEID #481-82 (citing Doc. #35-1, ¶ 15, PAGEID #500). On or about August 27, 2015, Plaintiff refused to allow Simon to participate in a smoke break, and was verbally criticized by Myers for doing so, although Myers did not subject Plaintiff to Defendant's progressive discipline policy. Plaintiff informed Myers that Collins had ordered her to prevent Simon from taking such smoke breaks, and that Myers should discuss any problems she had as to that policy with him. Doc. #35-1, ¶ 16, PAGEID #501.

         That afternoon, Plaintiff met with Roundtree, Clark, Myers and Patricia Cunningham ("Cunningham"), Defendant's Human Resources Director. Doc. #35-1, ¶ 18, PAGEID #501. During that meeting, Roundtree expressed her displeasure that Plaintiff had gone outside the supposed "chain of command" by calling Collins directly, and intimated that Collins was unhappy, too. Doc. #35, PAGEID #483 (citing Doc. #34, PAGEID #457; Doc. #35-1, ¶ 18, PAGEID #501). Plaintiff suggested that the five of them meet with Collins, since she disagreed with Roundtree and Myers's assertion that Defendant had taken adequate steps to protect her after Simon's harassment. Roundtree instead sent Plaintiff home for the day. Id. (citing Doc. #34, PAGEID #460; Doc. #35-1, ¶ 20, PAGEID #501).

         The next morning, Plaintiff met with Collins one-on-one and recounted the sexual harassment. Collins indicated that MSNH would change Simon's Care Plan again that day. Doc. #35, PAGEID #483 (citing Doc. #35-1, ¶ 15, PAGEID #501; Doc. 36, PAGEID #539-40). After her meeting with Collins, Clark met with Plaintiff and issued her a written reprimand for insubordination, which Plaintiff refused to sign. Id., PAGEID #484 (citing Doc. #35-1, ¶ 24, PAGEID #502). After Roundtree and Tiffany Bennett ("Bennett"), MSNH's Director of Nursing, joined the meeting, Plaintiff was again sent home for the day, allegedly for raising her voice and using profanities. Id.[2] Plaintiff strongly denied raising her voice or using profanities during that meeting or at any other time. Nonetheless, she was terminated, at the direction of Collins, over the telephone by Roundtree and Clark on or about August 28, 2015. Neither Roundtree nor Clark provided a reason for termination, id. (citing Doc. #34, PAGEID #424; Doc. #35-1, ¶¶ 17, 26, PAGEID#501, 502).


         A. Summary Judgment

         Summary judgment shall be granted "if the movant shows 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). Summary judgment must be entered "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The moving party always bears the initial responsibility of informing the court of the basis for its motion, and identifying those portions of the record which it believes demonstrate the absence of a genuine issue of material fact. Id. at 323; see also Boretti v. Wiscomb, 930 F.2d 1150, 1156 (6th Cir. 1991).

         Once the moving party has met its initial burden, the nonmoving party must present evidence that creates a genuine issue of material fact making it necessary to resolve the difference at trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Once the burden of production has so shifted, the party opposing summary judgment cannot rest on its pleadings or merely reassert its previous allegations, it is not sufficient to "simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). Rule 56 "requires the nonmoving party to go beyond the pleadings, " and present some type of evidentiary material in support of its position. Celotex, 477 U.S. at 324. "The plaintiff must present more than a scintilla of evidence in support of his position; the evidence must be such that a jury could reasonably find for the plaintiff." Michigan Prot. & Advocacy Sen/., Inc. v. Babin, 18 F.3d 337, 341 (6th Cir. 1994).

         "Summary judgment will not lie if the dispute about a material fact is 'genuine, ' that is, if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248. In determining whether a genuine dispute of material fact exists, a court must assume as true the evidence of the nonmoving party and draw all reasonable inferences in favor of that party. Id. at 255. If the parties present conflicting evidence, a court may not decide which evidence to believe. Credibility determinations must be left to the fact-finder. 10A Wright, Miller & Kane, Federal Practice and Procedure Civil 3d, 2726 (1998).

         In determining whether a genuine dispute of material fact exists, a court need only consider the materials cited by the parties. Fed.R.Civ.P. 56(c)(3). "A district court is not.. . obligated to wade through and search the entire record for some specific facts that might support the nonmoving party's claim." InterRoyal Corp. v. Sponseller,889 F.2d 108, 111 (6th Cir. 1989). If it so chooses, ...

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