Barber v. Lovelace Sandia Health Systems, CIV-04-0486JBWDS.
| Decision Date | 31 December 2005 |
| Docket Number | No. CIV-04-0447JBWDS.,No. CIV-04-0486JBWDS.,CIV-04-0486JBWDS.,CIV-04-0447JBWDS. |
| Citation | 409 F.Supp.2d 1313 |
| Parties | Georgette BARBER, Plaintiff, v. LOVELACE SANDIA HEALTH SYSTEMS, Defendant, Mary Larrazolo, Plaintiff, v. Lovelace Sandia Health Systems, Defendant. |
| Court | U.S. District Court — District of New Mexico |
Gilbert J. Vigil, Jason Michael Burnette, Albuquerque, New Mexico, for the Plaintiffs.
Patrick F. Clark, Amy Traub, Epstein Becker & Green PC, Atlanta, Georgia and N Lorna M. Wiggins, Wiggins, Williams & Wiggins, Albuquerque, New Mexico, for the Defendant.
THIS MATTER comes before the Court on the Defendant Lovelace Sandia Health Systems' Motion for Summary Judgment filed April 6, 2005 (Doc. 43). The Court held a hearing on this Motion on September 19, 2005. The primary issues are whether: (i) Plaintiff Georgette Barber's and Plaintiff Mary Larrazolo's claims are barred because of failure to exhaust administrative remedies; (ii) Lovelace's no-Spanish policy constitutes a per se violation of Title VII; (iii) Lovelace offered a legitimate, non-discriminatory reason for the no-Spanish policy; (vi) any of the actions of which the Plaintiffs complain rise to the level of an actionable adverse employment action; and (v) Barber has shown constructive discharge. Because the Court finds that the Plaintiffs have failed to exhaust several of their claims; that Lovelace had a legitimate non-discriminatory reason for the no-Spanish policy; that the Plaintiffs have not presented evidence of pretext; that the Plaintiffs' remaining claims do not rise to the level of adverse employment action; and that Barber has not shown a claim for constructive discharge, the Court will grant Lovelace's Motion for Summary Judgment.
Larrazolo and Barber were born in New Mexico. See Deposition of Mary Larrazolo ("Larrazolo Depo.") at 36:18-22 (taken January 25, 2005); Deposition of Georgette Barber ("Barber Depo.") at 10:2-4 (taken February 23, 2005). Larrazolo and Barber are Hispanic, and are bilingual, speaking both Spanish and English fluently. See Larrazolo Depo. at 36:16-37:11; Barber Depo. at 10:16-11:16. Barber grew up speaking English and learned Spanish at home and in high school; she has been fluent in Spanish for approximately ten years. See Barber Depo. at 10:12-11:7. Larrazolo spoke both Spanish and English growing up, and is fluent in both. See Larrazolo Depo. at 36:23-37:10.
Lovelace has a policy, contained in its Employee Handbook, prohibiting discrimination on the basis of national origin and providing that Lovelace has a firm commitment to providing employment, training, compensation, benefits, promotions, and other conditions or opportunities of employment without regard to any protected status, including national origin. See Employee Handbook at 1.
Barber received a copy of the Employee Handbook when Lovelace hired her on April 28, 1997, and then again on May 15, 2002. See Barber Depo. at 64:25-66:23. Similarly, Larrazolo received a copy of the Handbook when Lovelace hired her. See Larrazolo Depo. at 158:9-159:16.
Lovelace is a New Mexico healthcare provider. See Declaration of Sandra Eichenberg ("Eichenberg Decl.") ¶ 3, at 1 (executed April 6, 2005). The Tramway Clinic, at which Barber and Larrazolo worked at the time of the events in this lawsuit, is a primary care site in Albuquerque. See id. ¶ 4, at 1. Brenda Coffey was the Lead Registered Nurse for the Tramway. Clinic from May 27, 2001 to May 31, 2003. See id. ¶ 5, at 2. Coffey's last date of employment was May 31, 2003, at which time Dani Danzer became the Lead Registered Nurse. See id. Margaret "Peggy" Gillean was the Clinic Manager at Tramway Clinic during a portion of the Plaintiffs' employment. See id. ¶ 6, at 2; Barber Depo. at 30:15-20.
Lovelace first hired Larrazolo to work as a Nurse Technician in the Operating Room on December 17, 1990. See Larrazolo Depo. at 58:4-14. She worked in various departments before she transferred to the Tramway Clinic on September 17, 2001, to work as a Medical Assistant ("MA"). See id. at 39:3-7; 58:15-18; 64:2-13. Larrazolo requested the transfer to the Tramway Clinic so that she could work with Nurse Practitioner Marianne Wheeler who was then working at the Clinic and with whom Larrazolo had previously worked. See id. at 63:1; 39:9-12. MAs, like Larrazolo, are assigned to work with providers, e.g., physicians and nurse practitioners, and because Wheeler worked a reduced schedule, Larrazolo — upon transferring to Tramway Clinic — was also assigned to work with Dr. Peter Wong. See id. at 67:9-68:9.
Thereafter, Coffey asked that Larrazolo work with Dr. Meuli Goff instead of Dr. Wong, because Wheeler and Dr. Goff had the same schedules and worked in the same part of the clinic. See id. at 68:24-70:9. Thereafter, Dr. Goff's employment was terminated. See id. at 70:16-18. At the same time, Jennifer Purcell, the MA who had been working with Nurse Practitioner Barbara Wright, asked to be assigned to a different provider, as she expressed difficulty working for Wright. See id. at 71:10-16. After Purcell was reassigned, Larrazolo was placed with Wright. See id. at 71:10-16. Larrazolo did not have any objection to this arrangement at the time. See id. at 71:19-25. Other employees — Michelle Haskins, Tracy Snow, and Jennifer Purcell — had threatened to quit if assigned to work with Wright. See id. at 26:25-27:20.
While working with Wright, Larrazolo also continued to work with Wheeler two days per week until August 2002, when she was asked to work with Dr. Wong on a temporary basis. See id. at 72:9-25; 172:14-21. In January of 2003, Larrazolo was assigned to work with Wright on a full-time basis. See id. at 172:22-173:4.
On January 9, 2003, Wheeler met with one of her patients who was 28 weeks pregnant. See Declaration of Dani Danzer ("Danzer Decl.") ¶ 3, at 1 (executed April 6, 2005). Because the patient had not been gaining weight, Wheeler ordered a diabetic screen. See id. At 6:30 p.m. that evening, Wheeler asked Jennifer Hall to look up the results of the screen in the computer. See id. As Hall was looking up the blood sugar level, she noticed that a drug screen had also been ordered for the patient, and the results indicated that the patient had tested positive. See id. ¶ 3, at 1-2
Wheeler told Hall that she had not ordered any drug screens for the patient. See id. ¶ 3, at 2. The computer showed that a total of three drug screens had been ordered on December 16, 20, and 31, 2002. See id. Wheeler called Coffey to inform her of what she had discovered, and Coffey reported the incident to Gillean. See id.
Larrazolo admitted that she had ordered the drug screens without first conferring with Wheeler. See id.; Larrazolo Depo. at 81:14-83:12. MAs are not authorized to order tests on a patient without first conferring with a provider. See Barber Depo. at 161:9-20. As a result, on January 14, 2003, Larrazolo received a Step 1 written reprimand for ordering laboratory tests without provider approval and for failing to follow up with a patient on a positive drug screen. See Larrazolo Depo. at 80:25-81:17.
On January 30, 2003, Larrazolo received her annual performance appraisal. See Larrazolo Depo. at 135:19-136:8. Out of 22 rated categories, Larrazolo received 3 "Exceptional Performer" ratings, 12 "Solid Performer" ratings, and 7 "Needs Improvement" ratings. Id.; Pace Job Description/Performance Appraisal at 1-13 (dated January 30, 2003).
Larrazolo had issues with Gillean's January 2003 evaluation of her. See Larrazolo Depo. at 136:22:137-14. Larrazolo contends that she did not get a good evaluation and that the evaluation was done differently than it had been previously done. See id. Larrazolo maintains that she was afraid, however, to enter written comments on a corrective action form that Gillean gave her that month because she was afraid of Gillean's reaction. See id. at 190:12-191:16.
Barber began her employment with Lovelace working as a MA for the Tramway Clinic on April 28, 1997. See Barber Depo. at 13:15-14:1; 16:6-9. She worked with Dr. Keith Steichen during the entire term of her employment at the Tramway Clinic and had a good relationship with him. See id. at 33:19-34:21.
On December 19, 2002, Barber received a Step 1 written reprimand for failing to clock out for her required lunch break. See Barber Depo. at 150:4-151:2; Corrective Action Procedure Form at 1 (dated December 19, 2002). Lovelace's break-and-meal-periods policy provides that all non-exempt employees, such as Barber, must clock out for their meal breaks. See Employee Handbook at 8. While Barber received such a write-up, she worked through lunch at the direction of the lead nurse, Danzer. See Barber Depo. at 175:13-18. Specifically, she was told that she had to work through lunch if there was no one to cover her shift. See id.
On April 18, 2003, Barber received a second corrective action, this time for failing to adhere to the Hospital's attendance policy. See Corrective Action Procedure Form at 1 (dated April 18, 2003). Specifically, Barber had reported to work late, left work early, or was absent on more than ten occasions in the previous one-year period. See id. Lovelace's attendance policy provides that employees who are absent or frequently late in arriving at work, or are early in leaving, during a twelve-month rolling period, put a burden on others to carry out their area's workload and, thus, will be disciplined. See Employee Handbook at 5.
In early March 2003, Licensed Practicing Nurse Jamie Rivet told Barber that she had complained to Gillean about employees speaking Spanish to each other and that it made her feel uncomfortable. S...
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