Montell v. Diversified Clinical Servs., Inc.

Citation757 F.3d 497
Decision Date13 August 2014
Docket NumberNos. 13–6186,13–6231.,s. 13–6186
PartiesMarla MONTELL, Plaintiff–Appellant/Cross–Appellee, v. DIVERSIFIED CLINICAL SERVICES, INC.; Austin Day, Defendants–Appellees/Cross–Appellants.
CourtU.S. Court of Appeals — Sixth Circuit

OPINION TEXT STARTS HERE

ON BRIEF:J. Dale Golden, Justin S. Peterson, Golden & Walters, PLLC, Lexington, Kentucky, for Appellant/Cross–Appellee. Katherine C. Weber, Sarah E. Keates, Jackson Lewis LLP, Cincinnati, Ohio, for Appellees/Cross–Appellants.

Before: SUHRHEINRICH, MOORE, and WHITE, Circuit Judges.

MOORE, J., delivered the opinion of the court, in which SUHRHEINRICH and WHITE, JJ., joined. SUHRHEINRICH, J. (pgs. 510–11), delivered a separate concurring opinion.

OPINION

KAREN NELSON MOORE, Circuit Judge.

Marla Montell reported an allegation of sexual harassment against her supervisor, Austin Day, to human resources (“HR”) at Diversified Clinical Services, Inc. (DCS). The HR representative then contacted Day almost immediately. The next day, Montell alleges, Day called Montell and told her that she should resign or else she would be fired. On the following business day, Montell, feeling threatened and intimidated, resigned.

Montell appeals the district court's grant of summary judgment for DCS and Day in her suit against them alleging, under Kentucky law, harassment, intentional infliction of emotional distress (“IIED”),1 retaliation, and negligent hiring, supervision, and retention. DCS and Day cross-appeal the district court's denial of their motion for sanctions against Montell under Rule 11 of the Federal Rules of Civil Procedure and 28 U.S.C. § 1927. Because this case presents a classic genuine issue of material fact as to credibility—whether Montell's allegations or Day's denials are to be believed, we REVERSE the district court's grant of summary judgment as to the retaliation claim. In all other respects, we AFFIRM the district court's grant of summary judgment. We also AFFIRM the denial of the motion for sanctions.

I. BACKGROUND

Marla Montell served as DCS's Program Director at the Frankfort Regional Medical Center (“FRMC”). Austin Day was the Area Vice President to whom Montell reported. R. 69–1 (Videotaped Dep. of Donald Austin Day (“Day Dep.”) at 58) (Page ID # 2408). In turn, Day reported to Senior Vice President Michael Tanner. Id. at 58–60 (Page ID # 2408). DCS managed the wound care center at FRMC and derived revenue from: 1) a yearly consulting and management fee paid by FRMC; 2) revenue from hyperbaric oxygen treatments (“HBO treatments”); and 3) wound care revenue paid by patients. Id. at 45–46 (Page ID # 2405); R. 68–1 (Videtaped Dep. of Michael Tanner (“Tanner Dep.”) at 35–36) (Page ID 2303–04).

A. Montell's Performance

As the Program Director, Montell managed the day-to-day activities of the wound care center, including supervising employees, performing community education, reporting charges to Medicare, overseeing the handling of reimbursements, and meeting with hospital representatives. R. 66–1 (Dep. of Marla Montell (“Montell Dep.”) at 65–66, 72–74) (Page ID 2018–19, 2025–27); R. 69–1 (Day Dep. at 33–34, 47–55) (Page ID 2402, 2400–07). During her time, annual gross revenue of the wound care center increased. R. 34–4 (Ex. 47) (Page ID # 974). On March 30, 2011, Montell received a 2% salary increase. R. 34–6 (Ex. 51) (Page ID # 1061).

Montell, however, also struggled with aspects of her job. For example, the wound care center Montell managed failed to meet performance goals for the first three quarters of 2010. At a management meeting, called a DASH meeting, in October 2010, Montell gave a presentation that was poorly received. According to her supervisor, Day, Montell's presentation showed a [c]omplete lack of understanding of what was driving the business, what was behind it, and the root cause of her issues or problems and how to solve them.” R. 69–1 (Day Dep. at 84–85) (Page ID 2414–15). Others, including Montell, agreed that her presentation did not go well. R. 66–1 (Montell Dep. at 85) (Page ID # 2039); R. 63–1 (Videotaped Dep. of Belinda Blair (“Blair Dep.”) at 31) (Page ID # 1763); R. 68–1 (Tanner Dep. at 24) (Page ID # 2292). Day placed Montell on a Performance Improvement Plan (“PIP”) on November 9, 2010, that identified knowledge deficits, particularly related to processing Medicare/Medicaid reimbursements for FRMC and analyzing data contained in DCS's operational reports. R. 34–3 (Ex. 13) (Page ID # 830).

Montell also failed to meet revenue goals, including in the fourth quarter of 2010. R. 69–1 (Day Dep. at 195) (Page ID # 2148). Moreover, despite the PIP, Montell continued to have trouble with the coding for Medicare reimbursement. Id. at 119–27 (Page ID 2072–80). As a result, Montell received a documented oral counseling and a development plan in March 2011, which focused on the reimbursement issues. R. 34–3 (Exs. 18, 19) (Page ID 848–54).

On April 13, 2011, DCS issued Montell a Final Warning, which communicated expectations of Montell, noted a decline in the number of new patients, wound care center treatments, and HBO treatments, and expressed the expectation that the facility should generate increases in new patients (3%), wound care treatments (5%), and HBO treatments (10%). R. 34–4 (Ex. 28) (Page ID 882–83). Failure, according to the Final Warning, could result in termination. Id. This Final Warning was amended on May 3, 2011, because of another FRMC complaint regarding the handling of reimbursements. R. 34–4 (Ex. 29) (Page ID 886–90). Rather than receive termination, Montell was given additional time to show improvement. R. 69–1 (Day Dep. at 202) (Page ID # 2444); R. 68–1 (Tanner Dep. at 83–84) (Page ID 2351–52); R. 64–1 (Videotaped Dep. of Megan Lee (“Lee Dep.”) at 30–31) (Page ID 1837–38). Pat Wolfe, manager of Medical Billing and Physician Services at DCS, provided additional training to Montell on the reimbursement issues on May 2, 2011; at which point Wolfe stated to Day, “I am comfortable with [Montell]'s knowledge of the concepts.” R. 34–6 (Ex. 52) (Page ID # 1062). The Amended Final Warning also noted that the metrics were not met for the month of April. R. 34–4 (Ex. 29) (Page ID # 888). Finally, this Amended Final Warning issued on May 3 stated that [f]rom this point forward, [Montell] is operating on a 30 day action plan. If any of the requirements stated above or the requirements previously stated in the Final Warning and the 6 month action plan are not met, termination will be the next step.” Id. There were no complaints regarding Montell's performance between May 3, 2011, and May 23, 2011. On Thursday, May 19, 2011, Day notified Montell that she had not met her performance bonus goals for the first quarter of 2011. R. 66–1 (Montell Dep. at 195–97) (Page ID 2148–50); R. 34–4 (Ex. 31) (Page ID 893–94).

B. Montell's Experience

Montell testified that throughout her time working for Day, he would comment on her appearance at every opportunity. While she first took these comments as compliments, R. 66–1 (Montell Dep. at 148) (Page ID # 2101), Day became more aggressive with the comments. For example, Day stated, [n]othing turns me on more than a woman in a red dress and heels,” while Montell was wearing a red dress and heels. Id. at 146 (Page ID # 2099). He would often preface the comments about his sexual arousal with [d]on't call HR on me,” or “you can get me in trouble.” Id. According to Montell, these increasingly aggressive comments scared her. Id. at (149–50) (Page ID 2102–03). She would attempt to avoid Day's presence when he would come to the facility. See id. at 147 (Page ID # 2100). At one point Montell even began to cry, in front of Day, after he said that when people first meet Montell they think she is an air head while drawing an hourglass shape with his hands. Id. at 138 (Page ID # 2091).

Montell first complained about Day's sexual harassment to another Program Director, Belinda Blair. R. 63–1 (Blair Dep. at 35) (Page ID # 1767). Blair alerted Day that Montell accused him of sexual harassment. R. 34–4 (Ex. 35) (Page ID # 901).2

According to Montell's deposition testimony, on Thursday, May 19, 2011, Montell called Megan Lee, an HR representative, to report Day's sexual harassment of her. R. 66–1 (Montell Dep. at 145) (Page ID # 2098). Montell reported the alleged sexual harassment after Blair encouraged Montell to make a report. Id. at 145, 161–63 (Page ID 2098, 2114–16); R. 63–1 (Blair Dep. at 35) (Page ID # 1767). Lee notified Day of the sexual harassment complaint almost immediately. R. 64–1 (Lee Dep. at 45–46) (Page ID 1852–53). On the following day, according to Montell, Day called her and told her to resign or else he would fire her. R. 66–1 (Montell Dep. at 162) (Page ID # 2115). Moreover, Day called the hospital liaison at FRMC and stated that Montell had resigned on Friday, May 20, 2011. Id. The liaison asked Montell whether she had indeed resigned as Day reported, and Montell denied resigning. Id. at 162, 218 (Page ID 2115, 2171). Montell then again called Lee to report Day and request a reprimand because Day had retaliated against her for making her report of sexual harassment. Id. at 162, 217–218 (Page ID 2115, 2170–71). Feeling threatened, Montell resigned on Monday, May 23, 2011. Id. at 162 (Page ID # 2115).

C. Post–Termination and Discovery Evidence

Lee investigated Montell's claims by interviewing Day and Blair. R. 64–1 (Lee Dep. at 52–53) (Page ID 1859–60). Day denied that he had made the comments, and Blair confirmed that Montell had made the same accusations after the October 2010 DASH presentation. R. 34–4 (Ex. 35) (Page ID # 901). Lee decided that the accusations against Day did not warrant any further action. R. 64–1 (Lee Dep. at 52–53, 64, 67) (Page ID 1859–60, 1871, 1874).

During his deposition, Day testified that before Montell's resignation he had no plans to fire Montell even though the amended final warning document stated that the next step...

To continue reading

Request your trial
194 cases
1 books & journal articles
  • Appeals
    • United States
    • James Publishing Practical Law Books Litigating Sexual Harassment & Sex Discrimination Cases Trial and post-trial proceedings
    • May 6, 2022
    ...th Cir. 2012); Worrell v. Houston Can Academy, 287 Fed.Appx . 320, 324 (5 th Cir. 2008); Montell v. Diversiied Clinical Services, Inc. , 757 F.3d 497, 509 (6 th Cir. 2014); Nieman v. Hale , 541 Fed.Appx. 693, 699 (7 th Cir. 2013); Polite v. Child Development, Inc. , 508 Fed.Appx. 572 (8 th ......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT