Tingle v. Hilliard

• Decision Date: 29 August 2012
• Docket Number: No. 11–3494.,11–3494.
• Parties: Carole A. TINGLE, Plaintiff–Appellant, v. ARBORS AT HILLIARD; Hilliard Care, LLC; and Extendicare Health Services, Inc., Defendants–Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

692 F.3d 523

115 Fair Empl.Prac.Cas. (BNA) 1680

34 IER Cases 469

Carole A. TINGLE, Plaintiff–Appellant,

v.ARBORS AT HILLIARD; Hilliard Care, LLC; and Extendicare Health Services, Inc., Defendants–Appellees.

No. 11–3494.

United States Court of Appeals,Sixth Circuit.

Aug. 29, 2012.

ON BRIEF:Phillip L. Harmon, Worthington, Ohio, for Appellant. Brian J. Kelly, Frantz Ward LLP, Cleveland, Ohio, for Appellees.

Before: COOK and STRANCH, Circuit Judges; LAWSON, District Judge. ^*

OPINION

DAVID M. LAWSON, District Judge.

Plaintiff Carole Tingle alleged in a complaint that she was disciplined and ultimately terminated from employment by defendant Arbors at Hilliard, a nursing home in Hilliard, Ohio, in retaliation for speaking with investigators from the Ohio Department of Health following the death of a nursing-home resident. She brought her claim under Ohio Revised Code § 3721.24(A), which prohibits retaliation for participating in a Department of Health investigation, and Title VII of the Civil Rights Act of 1964. Arbors at Hilliard denied any retaliatory motive and contended that the termination was justified by the company's progressive discipline policy. The district court granted summary judgment to the defendants on both counts, and the plaintiff timely appealed the decision on the state law claim only. We affirm.

I.

The dispute in this appeal focuses mainly on the “pretext” element of the familiar McDonnell Douglas evidentiary framework for assessing the adequacy of circumstantial evidence of an employer's illegal motive for taking adverse employment action. The defendants contended in the district court that they fired the plaintiff for conduct that violated work rules, as prescribed by their written discipline policy. The plaintiff argues that factual disputes exist over whether she actually engaged in the conduct that subjected her to discipline under the defendants' policy.

The Arbors organization published an employment manual that set out a five-step progressive discipline policy, which calls for a disciplinary action report (DAR) whenever an employee violates a work rule. The policy classifies offenses at three levels. A “Class I” violation will result in a DAR; a “Class II” violation is more serious and an employee can be discharged for committing three “Class II” violations within twelve months. A “Class III” violation justifies immediate termination regardless of the lack of prior discipline.

The basic facts of the case were ably summarized by the district court as follows:

Plaintiff, Carol Tingle, was formerly employed as a registered nurse with Defendant Arbors at Hilliard, a nursing home located in Hilliard, Ohio. Arbors at Hilliard is a registered trade name of Defendant Hilliard Care, LLC, a subsidiary of Defendant Extendicare Health Services, Inc., the [latter] of which are headquartered in Milwaukee, Wisconsin. This Court will refer to Defendants as “Arbors.”

On June 27, 2008, a resident passed away at Arbors during Tingle's shift. The parties dispute the events that led to the Hilliard Police Department arriving to assess the resident's death. As a result of the circumstances surrounding the death, Arbors reported that Tingle's actions constituted a Class II violation in a Disciplinary Action Report (“DAR”) dated June 27, 2008 (“6–27–08 DAR”). In the 6–27–08 DAR, Arbors indicated that Tingle failed to instruct another employee to conduct CPR on the resident and that Tingle had failed to notify the resident's physician.

In July 2008, the Ohio Department of Health (“ODH”) investigated the June 2008 incident. ODH met with numerous Arbors employees, including Tingle, to discuss the incident. During this investigation, a question arose as to whether the expiration date on Tingle's CPR certification card had been altered. Arbors suspended Tingle pending further investigation.Arbors concluded its investigation and subsequently reinstated Tingle with back pay for the days missed during her suspension. As a result of the suspension, however, Arbors had issued Tingle a DAR on July 24, 2008 (“7–24–08 DAR”), for a Class II violation for violating a rule in the employee handbook. Tingle retained an attorney, who contacted Arbors to remove the 7–24–08 DAR from Tingle's employment file and Arbors agreed to remove that DAR from her file, not count it as progressive disciplinary action, and place the DAR in a sealed file.

On October 23, 2008, Arbors issued Tingle another DAR (“10–23–08 DAR”) because she failed to follow a direct order from a supervisor, which is a Class III violation. Arbors indicated in the DAR that Unit 2 Manager Deanna Collins had told Tingle to return an orientee at a certain point in time, but that Tingle had failed to direct the orientee properly. Tingle asserted that Liessen Davis, Director of Nursing, permitted Tingle to keep the orientee. According to Arbors Administrator Tammy Meyers, Arbors reduced the 10–23–08 DAR from a Class III violation to a Class II violation.

On March 31, 2009, Arbors issued Tingle her final DAR (“3–31–09 DAR”), which resulted from Tingle's improper documentation of information in a patient's medical record and a violation of a safety rule, both of which are Class II violations. Arbors noted in the DAR that Tingle had falsely indicated in a patient's treatment record that she had changed the patient's dressing, that she had left a syringe by a patient's bedside during her shift, and that she had left the medical cart unlocked. As a result of the 3–31–09 DAR, Meyers and Arbors Staff Development Coordinator Shauna Arnold met with Tingle to present her with the final DAR and to terminate her employment. Tingle argues that the 3–31–09 DAR was unwarranted and contained incorrect information. She contends that the time the syringe was found and who found it are questionable, that the medical cart involved was not under her control, and that she did not falsify the treatment records.

Tingle v. Arbors at Hilliard, Case No. 09–cv–01159, slip op. at 1–3 (footnote omitted).

The parties do not dispute the district court's basic outline of the facts. However, Tingle points to some more specific facts in making her argument, beginning with the June 27, 2008 DAR. That report states that Tingle was acting as a supervising nurse when a death was reported to her, that she failed to instruct a nurse to perform CPR, and that she failed to notify the patient's physician immediately of the patient's death—all facts that are disputed. Tingle testified at her deposition that she performed CPR on the patient. Medical records reflect that Tingle called the patient's sister, who requested that the police be called. And after the police assessed the patient and called the patient's sister to inform her that the death was not suspicious, Tingle called the patient's physician.

The Ohio Department of Health investigated the incident on July 17 and 18, 2008. In an affidavit, Tammy Meyers, an administrator at the Arbors facility, stated that during the course of the investigation, a state surveyor reviewed the CPR cards of employees and reported to Meyers that the expiration date on the Tingle's card appeared to have been altered. Meyers stated that she found the expiration date suspicious because it made the card valid for four years, but when she and the Staff Development Coordinator contacted the American Heart Association, they were told that the normal certification period was two years. That suspicion resulted in Tingle's suspension between July 18, 2008 and July 23, 2008. The suspension was documented in a DAR issued on July 24, 2008. Tingle was later paid for the days of work that she missed, and the defendants agreed to remove the DAR from Tingle's file.

The October 23, 2008 DAR states that Tingle committed a Class III dischargeable offense by refusing to follow a direct order from a supervisor to send an orientee to Unit 2. Tingle insists that she had been given permission to keep the orientee in Unit 1 by Liessen Davis. She also states that the individual who gave the order to return the orientee, Deanna Collins, was not her supervisor because she was the Unit 2 Unit Manager and Tingle worked in Unit 1, where she was supervised by Christopher Barrows. Tingle points to a note and testimony from Liessen Davis, who wrote the DAR, in which Davis states that she did not give Tingle permission to retain the orientee in Unit 1 and that she honestly believed that Tingle violated a work rule.

As to the March 31, 2009 DAR, Tingle delves into more detail about the three alleged violations stated therein. She identifies five statements in the DAR that she contends are factually false. First, the DAR states that a syringe was found at 7:30 a.m., but an email from Unit 1 Manager Barrows states that the used syringe was reported to him at 8:00 a.m. Second, the DAR states that the syringe was found before the registered nurse for the day shift assumed the keys, but in the same email, Barrows states that the lost syringe was found after Ameenah Abdullah relieved Tingle; and there was deposition testimony from Abdullah in which she states that she found the syringe after receiving the keys to the medication cart from Tingle. Third, the DAR states that the syringe was found by the Unit Manager, but the evidence cited above suggests that Abdullah, rather than Barrows, found the syringe. Fourth, the DAR states that the medication cart was unlocked and Davis testified that Barrows found both a syringe and an unlocked medication cart before the day shift nurse assumed the keys from Tingle. However, Tingle states that Barrows's shift did not overlap with hers, as she finished working at 7:00 a.m. and Barrows began work at 8:00 a.m.

Fifth, and most extensively, Tingle points out what she characterizes as inconsistent facts surrounding the missing-heel-dressing incident. The DAR states that Tingle had documented a treatment as having been done when in fact she had not done the treatment....