Furr v. Ridgewood Surgery & Endoscopy Ctr., LLC

• Decision Date: 28 June 2016
• Docket Number: CIVIL ACTION No. 14-1011-KHV
• Citation: 192 F.Supp.3d 1230
• Parties: Grace FURR, Plaintiff, v. RIDGEWOOD SURGERY AND ENDOSCOPY CENTER, LLC; Nueterra Healthcare Management, LLC and Joseph T. Poggi, III, M.D., Defendants.
• Court: U.S. District Court — District of Kansas

192 F.Supp.3d 1230

Grace FURR, Plaintiff,

v.RIDGEWOOD SURGERY AND ENDOSCOPY CENTER, LLC; Nueterra Healthcare Management, LLC and Joseph T. Poggi, III, M.D., Defendants.

CIVIL ACTION No. 14-1011-KHV

United States District Court, D. Kansas.

Signed June 28, 2016

Filed June 29, 2016

Donald N. Peterson, II, Sean M. McGivern, Withers, Gough, Pike, Pfaff & Peterson LLC, Wichita, KS, for Plaintiff.

Gaye B. Tibbets, Hite, Fanning & Honeyman, LLP, David E. Rogers, Foulston Siefkin LLP, Wichita, KS, Tara S. Eberline, Foulston Siefkin LLP, Overland Park, KS, for Defendants.

MEMORANDUM AND ORDER

Kathryn H. Vratil, United States District Judge

Grace Furr brings claims against her former employer, Nueterra Healthcare Management, LLC ("Nueterra"); Ridgewood Surgery & Endoscopy Center, LLC ("Ridgewood") and Joseph T. Poggi, III., M.D. ("Dr. Poggi"). Under Title VII, 42 U.S.C § 2000e et seq., plaintiff alleges that Nueterra created a sexually hostile work environment, constructively discharged her based on sex and retaliated because she engaged in protected activity. This matter comes before the Court on Defendant Nueterra Healthcare Management, LLC's Motion For Summary Judgment(Doc. #80) filed March 4, 2015. For reasons set forth below, the Court finds that the motion should be sustained in part.¹

Legal Standards

Summary judgment is appropriate if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(c) ; Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) ; Hill v. Allstate Ins. Co., 479 F.3d 735, 740 (10th Cir.2007). A factual dispute is "material" only if it "might affect the outcome of the suit under the governing law." Liberty Lobby, 477 U.S. at 248, 106 S.Ct. 2505. A "genuine" factual dispute requires more than a mere scintilla of evidence in support of a party's position. Id. at 252, 106 S.Ct. 2505.

The moving party bears the initial burden of showing the absence of any genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) ; Nahno–Lopez v. Houser, 625 F.3d 1279, 1283 (10th Cir.2010). Once the moving party meets its burden, the burden shifts to the nonmoving party to demonstrate that genuine issues remain for trial as to those dispositive matters for which she carries the burden of proof. Applied Genetics Int'l, Inc. v. First Affiliated Sec., Inc., 912 F.2d 1238, 1241 (10th Cir.1990) ; see also Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586–87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). To carry her burden, the nonmoving party may not rest on her pleadings but must instead set forth specific facts supported by competent evidence. Nahno–Lopez, 625 F.3d at 1283.

The Court views the record in the light most favorable to the nonmoving party. Deepwater Invs., Ltd. v. Jackson Hole Ski Corp., 938 F.2d 1105, 1110 (10th Cir.1991). It may grant summary judgment if the nonmoving party's evidence is merely colorable or is not significantly probative. Liberty Lobby, 477 U.S. at 250–51, 106 S.Ct. 2505. In response to a motion for summary judgment, a party cannot rely on ignorance of facts, on speculation or on suspicion, and may not escape summary judgment in the mere hope that something will turn up at trial. Conaway v. Smith, 853 F.2d 789, 794 (10th Cir.1988). The heart of the inquiry is "whether the evidence presents a sufficient disagreement to require submission to the jury or whether it is so one-sided that one party must prevail as a matter of law." Liberty Lobby, 477 U.S. at 251–52, 106 S.Ct. 2505.

Facts²

The following facts are either uncontroverted, deemed admitted or construed in the light most favorable to plaintiff, the non-movant.

Ridgewood is an ambulatory surgery center in Wichita, Kansas. Nueterra manages Ridgewood and employs all clinical and business staff for the facility.³ Nueterra does not employ the physicians who work at Ridgewood. At all times relevant to this case, Nueterra and the physicians operated Ridgewood together and consulted with each other on a wide range of issues.

In March of 2007, Nueterra hired Grace Furr, a licensed registered nurse, as Clinical Administrator for Ridgewood. In 2009, Furr also began to serve as Business Office Manager for Ridgewood. Throughout her employment Furr also served as Ridgewood's Risk Manager. Nueterra Vice-President Kim Krause directly supervised Furr. Furr's job duties included reporting allegations of sexual harassment to Krause and reporting incidents of physician misconduct to Nueterra.

Nueterra's retaliation policy applies to physicians and authorizes Nueterra to investigate and address complaints of retaliation by physicians.

The Development and Management Agreement ("Management Agreement") between Nueterra and Ridgewood governs Nueterra's duties as manager and provider of day-to-day operations at the facility. Nueterra Holdings, LLC, a Nueterra entity which is separate from Nueterra and not a party to this lawsuit, is a minority owner of Ridgewood. It holds one of five seats on the Board of Managers of Ridgewood. The Ridgewood Operating Agreement, which governs ownership of Ridgewood, provides that if a physician-member commits "gross misconduct," including "continued mistreatment of employees or staff at the Facility, which is not corrected upon notice from the Board of Managers," the physician-member may be required to sell his or her shares in Ridgewood. Doc. #81-7, Operating Agreement, § 13.1.10.

Ridgewood Medical Staff Bylaws govern the credentialed physicians at Ridgewood, and establish a Credentialing Committee which also acts as the Continuous Quality Improvement Committee ("CQI Committee"). The Credentialing Committee has a duty to "investigate charges of misconduct by Medical Staff Members and Allied Health Professionals and make corrective action recommendations to the Governing Body." Doc. #81-8, § 7.5.6.

Ridgewood has an employment policy of "nondiscrimination and equal opportunity for all employees and applicants." Doc. #81-10 at 1. Ridgewood Policies and Procedures also include an anti-harassment policy which provides as follows:

The employer maintains a strict policy prohibiting sexual harassment. This policy applies to all contractors and employees of the facility. Furthermore, it prohibits harassment in any form, including verbal, physical, and visual harassment.... Employees can be assured that there will be no retaliation against anyone who makes a complaint.

Id. at 3-4.

Nueterra provides Ridgewood employees a copy of the Ridgewood Employee Handbook. It includes an Equal Employment Opportunity policy which states that Ridgewood "does not discriminate on any prohibited basis, including race, color, sex, age, religion, national origin, or disability." Doc. #81-11 at 4. It also includes an anti-harassment policy that states that Ridgewood "prohibits sexual harassment and harassment because of race, color, national origin, ancestry, religion, creed, physical or mental disability

, marital status, HIV-positive status, age, or any other basis protected by federal, state, or local law. All such harassment is unlawful and will not be tolerated." Id. at 6.

2011-12 Sexual Harassment Allegations And Investigation

On August 5, 2011, a staff member told Furr that another employee, nurse Lacey Henningson, had told her that Dr. Poggi had engaged in inappropriate sexual behavior. In September of 2011, Furr reported to Nueterra Human Resources that Dr. Gaston had engaged in inappropriate sexual behavior with a nurse. Human Resources interviewed Furr about both complaints. At the direction of Nueterra HR, Furr prepared a detailed chronology of events that employees had reported to her.⁴ Nueterra then interviewed Nueterra employees—but not any physicians—concerning possible sexual harassment by physicians. Nueterra determined that Ridgewood was an environment "at risk," so it referred the matter to Ridgewood to investigate allegations against the physicians. Doc. #93-1 at 38-41.

On December 5, 2011, Henningson informed Furr that Dr. Gaston was being rude to her and she thought other doctors had told Dr. Gaston that she had complained about his behavior. Nueterra's HR team interviewed Henningson, who stated that she did not think that Dr. Gaston was retaliating. A few days later, Dr. Gaston told Furr that "if [Henningson] has such a problem with me, then keep her out of my [operating] room." Plaintiff's Ex. 16 at NUE 200. Dr. Gaston said that the investigation would "force surgeons out of here and I will be the first to go." Id.

On December 6, 2011, Nueterra provided sexual harassment training to nursing staff at Ridgewood. No Ridgewood physicians attended.

On December 28, 2011, Dr. Hyder, Ridgewood Board Chairman, and Dr. Douglas Friesen, Ridgewood Medical Director and Chairperson of the Ridgewood Risk Management Committee, spoke to Dr. Gaston about the allegations of sexual harassment. Dr. Gaston apologized and agreed to only engage in actions that were "appropriate and professional." Doc. #81-15 at 2.

On January 3, 2012, Dr. Hyder, Dr. Friesen and two Nueterra representatives interviewed Dr. Poggi about the allegations against him. Dr. Poggi apologized and promised to act in a professional manner in the future. Dr. Poggi understood that the Board would monitor his behavior and that if he engaged in inappropriate conduct he would likely lose his privileges to operate at Ridgewood. Although Nueterra recommended to Ridgewood that it require Dr. Poggi to obtain counseling at his own expense, Ridgewood did not implement that recommendation.

After the conversations with Drs. Poggi and Gaston, no one made further complaints of sexual harassment at Ridgewood while Furr worked there, and no one filed a Charge of Discrimination with the Equal Employment Opportunity Commission...