Drye v. Univ. of Arkansas for Med. Scis.

• Court: U.S. District Court — Eastern District of Arkansas
• Writing for the Court: J. LEON HOLMES
• Decision Date: 23 September 2011
• Docket Number: No. 4:09CV00922 JLH,4:09CV00922 JLH
• Citation: Drye v. Univ. of Arkansas for Med. Scis., No. 4:09CV00922 JLH (E.D. Ark. Sep 23, 2011)
• Parties: BETTY MARIE DRYE PLAINTIFF v. UNIVERSITY OF ARKANSAS FOR MEDICAL SCIENCES by and through the UNIVERSITY OF ARKANSAS BOARD OF TRUSTEES; PHILIP BARONI; and PAM WHITLOCK DEFENDANTS

BETTY MARIE DRYE PLAINTIFF

v. UNIVERSITY OF ARKANSAS FOR MEDICAL SCIENCES byand through the UNIVERSITY OF ARKANSAS BOARD OF TRUSTEES;PHILIP BARONI; and PAM WHITLOCK DEFENDANTS

No. 4:09CV00922 JLH

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS WESTERN DIVISION

Dated: September 23, 2011

OPINION AND ORDER

Following her February 2009 termination from the University of Arkansas for Medical Sciences, Betty Marie Drye commenced this action against UAMS, by and through the University of Arkansas Board of Trustees and UAMS employees, Philip Baroni and Pam Whitlock, in both their individual and official capacities. Having amended her complaint in November 2010, Drye now alleges that the defendants violated her due process rights, her right to equal protection, the Rehabilitation Act, the Age Discrimination in Employment Act, and the Family and Medical Leave Act. The defendants have moved for summary judgment on these claims, Drye has responded, and the defendants have replied to that response. For the following reasons, summary judgment is granted.

I.

In 2004, UAMS hired Betty Marie Drye as a patient representative in the Jones Eye Institute, a position that involved, among other things, supervising clinic clerical staff. Drye was hired by, worked under, and reported solely to clinic manager Judy Sims. When Drye was hired, Philip Baroni was the associate director of outpatient services at UAMS. In that capacity, he supervised the managers of various UAMS clinics (including the Institute). Pam Whitlock was the Institute's clinic supervisor.

In July 2007, UAMS hired Robert Harris to fill a new chief of ambulatory care position. Harris' job was to ensure better clinic operational efficiency, continuity, and collaboration between the various clinics and the College of Medicine Faculty Group Practice. Specifically, Harris focused on better patient communication, flow of patient care, employee teamwork, and morale. In early 2008, Harris appointed Dr. Chris Westfall as practice director for the Institute. Westfall acted as a liaison between the faculty group practice and the Institute, and he discussed with Baroni and Institute managers his desire to see better communication and streamlining of authority in daily Institute operations.¹

In April 2008, Sims retired from her position and Baroni became interim clinic manager. Baroni served in that position until the fall, when Baroni, Westfall, and Harris decided that it was time to make some earlier proposed changes concerning the new Institute goals. Whitlock was then named to interim clinic manager. Shortly thereafter, the "interim" was removed, and she becameclinic manager.² In that position, Whitlock was given responsibility for overall clinic management-all technical and clerical employees reported directly to her. Another employee, Kim Glaze, was then moved to Whitlock's former position as clinic supervisor.

During Drye's employment at the Institute-both before and after Sims' retirement-numerous complaints were made to management regarding Drye's harsh manner in communicating with patients and other employees. Sims and others counseled Drye about these complaints and noted the issues in Drye's evaluations. After Whitlock took over as clinic manager, she received several oral and written complaints about Drye from Institute personnel.

During early to mid-2008, Drye requested and received FMLA leave and discretionary catastrophic leave several times to care for her ailing mother. The leave was intermittent, so Drye was present at work some of the time. Drye also was approved for and took FMLA leave for her own medical issues from August 7, 2008, until September 8, 2008, when she returned to work. Altogether, Drye was given the maximum amount of FMLA leave. On August 18, while Drye was on FMLA leave, Baroni met with Audrey Bradley, UAMS human resources employee relations manager, to discuss Drye. According to Bradley's journal of the encounter, Baroni expressed his desire to redefine Drye's job description because Drye's work was behind. Bradley then states in the journal that she advised Baroni that a person on FMLA leave is not responsible for work duties, so someone else should have been doing Drye's work. Bradley also advised that she did not see areason to change Drye's job role. Finally, Bradley determined from the conversation that Baroni was "wanting a[n] easy out" because Drye was a "problem child" and had not been dealt with by Sims.

Immediately upon Drye's September 2008 return, Baroni met with her to explain changes to her position that had been instituted while she was gone. Baroni informed Drye that she no longer would have supervisory duties and that various job responsibilities would be changing, although her salary, benefits, title, and office space would remain the same.

On February 11, 2009, Glaze told Whitlock that three different employees had reported to her that Drye was pulling up in front of the Institute building, clocking in, leaving the building, and driving off in her car. Whitlock confirmed the report with the employees. On February 19, 2009, Whitlock observed that Drye clocked in at 8:03 a.m., left the building, and walked back in at 8:10 a.m. Whitlock reported the incident to Baroni. Whitlock and Baroni decided that Drye's actions constituted falsifying time records, which is gross misconduct under UAMS guidelines and which warrants immediate dismissal. Whitlock and Baroni then met with Drye in Whitlock's office, where they notified her that they considered her actions gross misconduct. They proceeded to give Drye a notice indicating the reason for her termination and advised her of the right to seek a grievance with the UAMS employee relations officer. Whitlock and Baroni never shared the Employee Disciplinary Notice or Separation Form with anyone inside or outside of UAMS, and no potential employers have requested the information from Drye.³ Drye's position was never filled.

After her termination, Drye brought a charge of age discrimination against UAMS with the Equal Employment Opportunity Commission, alleging that younger employees who had engaged in the same act had not been terminated. The EEOC investigated Drye's claim and sent Drye a preliminary letter confirming the basic details of the incident and that a factual dispute existed concerning whether there were other similarly situated employees. Drye also contacted Charles White, the UAMS vice chancellor for employee relations, and met with him on March 6, 2009. At that meeting, White gave her a complaint form. The parties dispute whether Drye filled out the form and submitted it back to White.⁴

On Sept. 2, 2009, the EEOC issued Drye a Notice of Right to Sue letter, declining to pursue its inquiry further. Drye filed her original complaint pro se on December 9, 2009. Drye obtained legal representation and filed an amended complaint on November 15, 2010. On January 4, 2011, this Court granted the defendants' motion to dismiss Drye's ADEA and section 1983 claims for damages against UAMS and against Whitlock and Baroni in their official capacities. The Court also dismissed Drye's ADEA claims against the defendants in their individual capacities. The Court will now decide on the defendants' motion for summary judgment on Drye's remaining claims.

II.

A court should enter summary judgment if the evidence, viewed in the light most favorable to the nonmoving party, demonstrates that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a); see also Anderson v.Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S. Ct. 2505, 2511, 91 L. Ed. 2d 202 (1986); Cheshewalla v. Rand & Son Constr. Co., 415 F.3d 847, 850 (8th Cir. 2005). The party moving for summary judgment bears the initial responsibility of demonstrating the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 2553, 91 L. Ed. 2d 265 (1986). If the moving party carries its burden, the nonmoving party must "come forward with 'specific facts showing that there is a genuine issue for trial.''' Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 587, 106 S. Ct. 1348, 1356, 89 L. Ed. 2d 538 (1985) (emphasis in original) (quoting Fed. R. Civ. P. 56(e)). A genuine issue for trial exists only if there is sufficient evidence to allow a jury to return a verdict for the nonmoving party. Anderson, 477 U.S. at 249, 106 S. Ct. at 2511. When a nonmoving party cannot make an adequate showing on a necessary element of the action on which that party bears the burden of proof, the moving party is entitled to judgment as a matter of law. Celotex, 477 U.S. at 322, 106 S. Ct. at 2552.

III. Rehabilitation and Age Discrimination in Employment Acts

The defendants have moved for summary judgment on Drye's age and disability discrimination claims under the ADEA and the Rehabilitation Act. In her response, Drye explicitly abandons these two claims. Drye asserts, however, that she does not abandon her "disability retaliation claim" under the Rehabilitation Act. The problem is that the only retaliation claim that Drye alleged in her complaint and amended complaint is a claim that the defendants retaliated against her for requesting FMLA leave-a claim that will be addressed later. No "disability retaliation claim"other than the FMLA claim has been alleged. Summary judgment is granted to the defendants on all of Drye's claims under the ADEA and the Rehabilitation Act.

IV. Due Process

The Fourteenth Amendment provides that no state shall "deprive any person of life, liberty, or property, without due process of law . . . ." U.S. Const. amend XIV, § 1. Drye alleges that the defendants violated both her liberty and property interests under the Due Process Clause by terminating her without a proper hearing and by damaging her reputation in the process. The defendants have moved for, and the Court grants, summary judgment on these...