Pino v. Medicalodges, Inc.
| Decision Date | 25 January 2023 |
| Docket Number | 21-2398-JAR-KGG |
| Parties | LORENA PINO, Plaintiff, v. MEDICALODGES, INC., Defendant. |
| Court | U.S. District Court — District of Kansas |
LORENA PINO, Plaintiff,
v.
MEDICALODGES, INC., Defendant.
No. 21-2398-JAR-KGG
United States District Court, D. Kansas
January 25, 2023
MEMORANDUM AND ORDER
JULIE A. ROBINSON UNITED STATES DISTRICT JUDGE
Plaintiff Lorena Pino brings this action alleging discrimination and retaliation on the basis of race under Title VII of the Civil Rights Act of 1964 and 42 U.S.C. § 1981 against her former employer, Defendant Medicalodges, Inc. Before the Court are Defendant Medicalodges, Inc.'s Motion for Summary Judgment (Doc. 45) and Motion to Strike Plaintiff['s] Declaration in Support of her Memorandum in Opposition to Defendant's Motion for Summary Judgment Against Plaintiff (Doc. 54). The motions are fully briefed, and the Court is prepared to rule. As described more fully below, the Court denies both motions.
I. Legal Standard
Summary judgment is appropriate if the moving party demonstrates that there is no genuine dispute as to any material fact and that it is entitled to judgment as a matter of law.[1] In applying this standard, the court views the evidence and all reasonable inferences therefrom in the light most favorable to the nonmoving party.[2] “There is no genuine issue of material fact unless the evidence, construed in the light most favorable to the nonmoving party, is such that a
reasonable jury could return a verdict for the non-moving party.”[3] A fact is “material” if, under the applicable substantive law, it is “essential to the proper disposition of the claim.”[4] An issue of fact is “genuine” if “the evidence is such that a reasonable jury could return a verdict for the non-moving party.”[5]
The moving party initially must show the absence of a genuine issue of material fact and entitlement to judgment as a matter of law.[6] Once the movant has met this initial burden, the burden shifts to the nonmoving party to “set forth specific facts showing that there is a genuine issue for trial.”[7] The nonmoving party may not simply rest upon its pleadings to satisfy its burden.[8] Rather, the nonmoving party must “set forth specific facts that would be admissible in evidence in the event of trial from which a rational trier of fact could find for the nonmovant.”[9]To accomplish this, the facts “must be identified by reference to an affidavit, a deposition transcript[,] or a specific exhibit incorporated therein.”[10] The non-moving party cannot avoid summary judgment by repeating conclusory opinions, allegations unsupported by specific facts, or speculation.[11]
Finally, summary judgment is not a “disfavored procedural shortcut”; on the contrary, it is an important procedure “designed ‘to secure the just, speedy and inexpensive determination of every action.'”[12]
II. Uncontroverted Facts
The following facts are uncontroverted, stipulated to, or viewed in the light most favorable to Plaintiff as the nonmoving party.
Plaintiff Lorena Pino is a former employee of Defendant Medicalodges, Inc., located in Holton, Kansas. Defendant provides skilled nursing, rehabilitation, assisted living, and in-home care services. Plaintiff, a Hispanic female, was employed by Defendant as a Certified Nursing Assistant (“CNA”) and Restorative Aide from October 17, 2019 until February 9, 2021.
Plaintiff's first language is Spanish. During Plaintiff's employment, Marsha Ricketts was Defendant's facility administrator and Linda Root-Covel was the Director of Nursing (“DON”). CNAs reported directly to Root-Covel; Root-Covel reported directly to Ricketts.
Policies
Defendant is federally required to comply with the Nursing Home Reform Act and the Elder Justice Act for allegations of abuse and neglect toward its residents. Defendant is legally required to follow regulations issued by the Centers for Medicare and Medicaid Services on abuse and neglect.
Defendant maintains a written Personnel Policies document that became effective January 25, 2019. The first paragraph of this document provides: “An employee charged with a criminal offense may be suspended without pay pending a full criminal investigation. Following such investigation, the employee may be reinstated at the discretion of Medicalodges, without
pay during the suspension.”[13] Although Defendant generally does not allow for suspensions without pay for more than ten days, there is an exception where an employee is charged with a criminal offense. If Defendant decides to wait for the criminal process to conclude, the suspension without pay could last longer than ten days. It is possible for the employee to be brought back to work depending on the outcome of the charges.
Among Defendant's many Personnel Policies are the following policies and procedures: (1) Reporting and Investigating Alleged Abuse of Residents/Clients; (2) Equal Employment Opportunity Practices and Procedures; and (3) Policy Prohibiting Discrimination, Harassment, and Retaliation, which includes procedures for reporting complaints about violations of these policies. On October 15, 2019, Plaintiff signed an Acknowledgement of Personnel Policies at the end of this document, acknowledging that she read and understood it.
Defendant also has a separate Abuse, Neglect, and Exploitation Policy that is modeled after the federal guidelines and states:
The resident has the right to be free from verbal, sexual physical and mental abuse and involuntary seclusion. It is the policy of Medicalodges, Inc., to treat each resident with respect, kindness, dignity and care, to keep them free from abuse and neglect and to take swift and immediate action to investigate and adjudicate alleged resident abuse and neglect.[14]
“Abuse” is defined by the policy as “the willful infliction of injury; the unreasonable confinement, neglect, intimidation or punishment with resulting physical harm, pain or mental anguish or deprivation by an individual (including a caretaker) of goods or services necessary to attain or maintain physical, mental and psychosocial well-being.”[15] “Verbal abuse” is defined as
any use of oral, written or gestured language that willfully includes disparaging and derogatory terms to residents or their families or within their hearing distance regardless of their age, ability to comprehend or disability. Examples of verbal abuse include, but are not limited to, threats of harm or saying things to frighten a resident (such as telling them they will never see their family again).[16]
“Neglect” means
failure to provide the goods and services necessary to avoid physical harm, mental anguish or mental illness. Neglect occurs on an individual basis when a resident receives lack of care in one or more areas, e.g., absence of frequent monitoring of a resident known to be incontinent resulting in the resident being left to lie in urine or feces.[17]
Using profanity in front of the residents is a violation of the Abuse, Neglect, and Exploitation policy.
Defendant and its employees are legally required to report all allegations of abuse and neglect to the Kansas Department for Aging and Disability Services (“KDADS”) and the Police. The Abuse, Neglect, and Exploitation Policy also provides that “ALL reasonable suspicions of a crime under section 1150B of the Social Security Act . . . shall be reported as required.”[18] Additionally, “[a]ll unexplained bruising, skin tears, reluctance of a resident to accept care from certain staff members and abrupt changes in behavior as well as any pattern of injury shall be reported to appropriate staff.”[19]
The Abuse, Neglect, and Exploitation Policy provides that “[t]he Administrator and Director of Nursing are responsible for the investigation of alleged violations and reporting the
results of the investigation to the proper authorities. All reported and/or suspected incidents of abuse, neglect or exploitation of personal property shall result in an investigation.”[20] Any time such a report is made against an employee, that person “should be immediately sent home and suspended without pay by the person in charge until a thorough investigation can be conducted by the DON/Administrator.”[21]
The Abuse, Neglect, and Exploitation policy provides a signature block under an Employee Acknowledgement Form that states in part, “I understand that violations of this policy may result in disciplinary action, up to and including termination.”[22]
Prior to her employment with Defendant, and as part of her CNA education at Highland County Community College, Plaintiff learned about patient abuse and neglect. Specifically, Plaintiff learned that it “shouldn't happen at all,”[23] and that she had a duty to protect patients from harm, abuse, and neglect. Plaintiff completed Defendant's Abuse, Neglect, and Exploitation training on October 15, 2019 and October 27, 2020.
Plaintiff's Complaints of Discrimination
In November 2020, Plaintiff began having issues with two of her coworkers-Haley Bickford and Toni Johanson-who worked in the kitchen at the time. They made fun of her accent, mocked her, made fun of immigrants, and told her it was their “First Amendment Right” to do so.[24]
On December 16, 2020, Bickford reported to management that Plaintiff had used profanity at work. Plaintiff was suspended pending an investigation. After investigating, Root-Covel and Ricketts determined that Plaintiff did not use profanity and cleared her to return to work.
On December 25, 2020, Plaintiff submitted a written complaint to management about Bickford and Johanson, stating that they made fun of her, mocked her, mocked immigrants, and insisted they had a First Amendment right to do so. She stated that she filed a formal complaint with the Equal Employment Opportunity Commission and that she is “past the point of reporting these racist bullies to supervisors or the DON since they refuse to fix this humiliating and retaliating situation.”[25] Root-Covel received...
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