Dorr v. Woodlands Senior Living of Brewer, LLC

• Decision Date: 27 June 2016
• Docket Number: 1:15-cv-00092-GZS
• Parties: CHRISTY DORR, Plaintiff v. WOODLANDS SENIOR LIVING OF BREWER, LLC, Defendant
• Court: U.S. District Court — District of Maine

CHRISTY DORR, Plaintiff v. WOODLANDS SENIOR LIVING OF BREWER, LLC, Defendant

1:15-cv-00092-GZS

UNITED STATES DISTRICT COURT DISTRICT OF MAINE

June 27, 2016

RECOMMENDED DECISION ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT AND MOTION TO EXCLUDE EXPERT TESTIMONY

In this action, Plaintiff Christy Dorr alleges that Defendant Woodlands Senior Living of Brewer, LLC discriminated against her based on her gender and disability, engaged in unlawful retaliatory conduct, failed to accommodate her disability, and denied her medical leave in violation of state and federal law when it terminated her employment after she left work due to a medical event.

The matter is before the Court on Defendant's Motion for Summary Judgment (ECF No. 30) and Defendant's Motion in Limine to Exclude Expert Testimony (ECF No. 31). After consideration of the parties' arguments, I recommend the Court grant in part and deny in part Defendant's motions.¹

I. BACKGROUND FACTS

On June 27, 2014, Defendant notified Plaintiff that her employment as a Certified Residential Medication Aide ("CRMA") was terminated. (Def.'s Statement of Material Facts("DSMF") ¶¶ 1 - 2, ECF No. 29; Pl.'s Opposing Statement of Material Facts ("POSMF") ¶ 1, ECF No. 40.) Prior to the termination of her employment, Plaintiff had a positive work history and was regarded as a good employee, despite some attendance issues.² Plaintiff had previously been employed by Defendant, and Defendant's Executive Director, Benjamin Smith, had provided a very positive assessment of her based on her prior period of employment with Defendant. (Pl.'s Additional Statement of Material Facts ("PASMF") ¶¶ 1 - 5, ECF No. 40.)

On June 26, 2014, Plaintiff was scheduled to begin work at 6:30 a.m. as the dayshift CRMA. (DSMF ¶ 7.) When Plaintiff arrived at work, she went to the medication cart assigned to her that day.³ (Id. ¶ 8.) She performed the medication count with the overnight CRMA, listened to the overnight CRMA's report regarding the overnight shift, and proceeded to put her personal items away in a closet. (Id. ¶ 9.) Shortly before 7:00 a.m., while Plaintiff was putting her personal items away, co-worker Courtney Mihalik informed Plaintiff that Plaintiff's boyfriend, Keema Jackson, also a co-worker, was cheating on Plaintiff with another of Defendant's employees. (Id. ¶ 10.)

Plaintiff was at the time pregnant with Mr. Jackson's child, and was emotionally overcome by the news. She experienced difficulty breathing, did not have her inhaler with her, felt like she was having a panic attack,⁴ and believed that if she did not address her symptoms by immediatelygoing home, she could experience a miscarriage.⁵ (Id. ¶ 11; POSMF ¶ 11; PASMF ¶¶ 23 - 26, 28.) Because of her emotional condition, Plaintiff determined she was unable to care for the residents of the facility, and that she had to leave the facility and get to a safe place.⁶ (PASMF ¶ 27 - 28, 31.) Plaintiff told her co-worker, Ms. Mihalik, that she needed to leave, gave Ms. Mihalik the keys to the medication cart, and requested that Ms. Mihalik ask Kelly Perry, another CRMA, to pass out the medications. She then left the workplace. (DSMF ¶¶ 11 - 13; POSMF ¶¶ 11 - 13; PASMF ¶ 32.)

Whenever custody of a medication cart is transferred from one CRMA to another, Defendant's policies and practices require that the two employees conduct a medication count in which the oncoming CRMA counts the medications and the outgoing CRMA witnesses the count. (DSMF ¶ 16; PASMF ¶¶ 143 - 144.) When Plaintiff left work on the morning of June 26, 2014, she failed to perform the medication count with anyone or to find other employees to perform the count. (DSMF ¶ 17; PASMF ¶ 145; DRSF ¶ 149.)

After exiting the building, Plaintiff went directly to her car and drove herself home. (DSMF ¶ 18.) Plaintiff was living with Mr. Jackson at the time, but she did not go home to confront him. (PASMF ¶ 34.) Upon arriving home, Plaintiff immediately used her inhaler. (Id. ¶ 35.)Gradually, her breathing returned to normal and her panic subsided. (Id. ¶¶ 36 - 39.) Plaintiff was able to control her breathing and calm down, and she did not believe she needed medical care. (DSMF ¶¶ 33 - 34; POSMF ¶¶ 33 - 34.) She waited for approximately forty-five minutes before confronting Mr. Jackson, who was not working at the time. (DSMF ¶ 19.) Plaintiff then discussed the matter with Mr. Jackson for fifteen or twenty minutes, and Mr. Jackson confirmed that he was involved in another relationship. (Id. ¶ 20.)

While she was at home, Plaintiff was visited by a co-worker, Samantha Morrone, who gave Plaintiff her phone to use as Plaintiff's own phone was not active at that time. (Id. ¶ 22.) After calling her parents and a co-worker, at 9:57 a.m., Plaintiff called Defendant. (Id. ¶¶ 23, 24, 29; PASMF ¶ 42.) Plaintiff was unsuccessful in her attempts to contact her supervisor, Chelsea Hodgson, who was not present at the facility.⁷ (POSMF ¶¶ 30, 32; PASMF ¶¶ 43 - 44.) Plaintiff did not call any other supervisor or leave a message on voicemail. (DSMF ¶¶ 14 - 15.) Later that day, Plaintiff's supervisors, including Defendant's Executive Director, Benjamin Smith, and Defendant's Program Coordinator, Chelsea Hodgson, attempted to contact Plaintiff to determine her whereabouts, but they were unsuccessful. (DSMF ¶ 35.)

Plaintiff returned to Defendant at approximately 3:00 p.m. on June 26, 2014, and met with Mr. Smith and Ms. Hodgson.⁸ (Id. ¶ 44; PASMF ¶ 64.) Although she did not have any health concerns at that time (DSMF ¶ 46), Plaintiff explained that she had been told that morning that her boyfriend was cheating on her and that she was angry about it and had become upset. (Id. ¶ 47.)She stated that she did not want to lose her job. (Id. ¶ 48.) According to Plaintiff, she told them that she had a panic attack and an asthma attack, that she needed to get out of the facility and get to her home where she felt safe, and that she was pregnant and was concerned about a miscarriage.⁹ (PASMF ¶¶ 66 - 67; DRSF ¶¶ 66 - 77.) Plaintiff maintains that during the meeting, Ms. Hodgson and Mr. Smith told her they would consider the matter and get back to her.¹⁰ (PASMF ¶ 73.)

Mr. Smith alone made the decision to terminate Plaintiff's employment. (DSMF ¶¶ 38.) Mr. Smith informed Plaintiff that her employment was terminated when Plaintiff appeared at the workplace on June 27, 2014. (Id. ¶ 55; PASMF ¶ 83.)

According to Mr. Smith, he made the decision to terminate Plaintiff's employment based on job abandonment before Plaintiff appeared at the workplace and spoke with him on June 26; when he made the decision, he did not know Plaintiff was pregnant, or that she suffered from panic attacks as the result of anxiety;¹¹ he would already have written a termination letter before meeting with Plaintiff if he had the opportunity to do so; his decision was consistent with every other incident in which an employee walked off the job without authorization; the meeting with Plaintiff did not cause him to change his mind about terminating Plaintiff's employment; and that he prepared the termination letter later in the day on June 26. (Id. ¶¶ 36, 37 39, 40, 49, 53, 54.)

In the past, there were occasions when one or more of Defendant's employees have been very sick while at work and left work, and someone other than the sick employee notified the on-call supervisor or another employee. (PASMF ¶¶ 104 - 106.) While Defendant will consider whether an employee is able to provide advance notice of an absence (Id. ¶¶ 109 - 110), Defendant trains its employees to notify the on-call supervisor of their absences when able. (DRS ¶ 109.)¹² Approximately once each month, maybe less, an employee who starts a shift finds that for some medical reason he or she is not able to finish the shift. (PASMF ¶ 130.)

One employee was late to work on two occasions in January 2012 and on March 3, 2012, called the facility to say she would be late, but never arrived at work. Subsequently, the employee was tardy on additional occasions. Defendant suspended the employee and put the employee on probation, without terminating the employment of the employee. (Id. ¶ 158.) In June 2014 and again in August 2014, Mr. Smith wrote warnings to two different employees for the failure to report to work (no-show/no-call) and for the failure to notify Defendant of their inability to work. The warnings stated that future occurrences would include disciplinary action up to and including termination. (Id. ¶¶ 160, 162.)

More than 100 of Defendant's employees have been terminated, however, for no-call/no-show conduct. (DRSF ¶¶ 158, 162.) According to Defendant, of the five known CRMAs who left work without authorization before the end of their shifts, all were terminated. (Id.)

II. DEFENDANT'S MOTION IN LIMINE TO EXCLUDE EXPERT TESTIMONY (ECF NO. 31)

Plaintiff designated Scott Schiff-Slater, MD, to serve as an expert witness. Dr. Schiff-Slater was not a treating physician, but reviewed Plaintiff's medical records and diagnoses, andPlaintiff's contentions related to her symptoms on June 26, 2014. Based on this review, Dr. Schiff-Slater opined that Plaintiff's history of mental health symptoms is fairly characterized as "moderately severe," that Plaintiff has exercised good judgment regarding her treatment and care, that discontinuation of psychiatric medications due to pregnancy is common among patients and "is often the standard of care," and that without medication, "stressors of any kind would be much more difficult to handle" for Plaintiff, especially as "mood disturbances are common in pregnancy." Dr. Schiff-Slater also characterizes Plaintiff's asthma condition as a diagnosis of Persistent Moderate Asthma that was not well controlled. According to Dr. Schiff-Slater, the symptoms of an anxiety attack or panic attack can be "difficult to distinguish from an asthma attack." Addressing Plaintiff's prior miscarriage, Dr. Schiff-Slater observes that that event "would cause anyone pause." (Aug....