Tingle v. Hilliard
| Decision Date | 21 April 2011 |
| Docket Number | Case No. 2:09-cv-01159 |
| Parties | CAROL A. TINGLE, Plaintiff, v. ARBORS AT HILLIARD, et al., Defendants. |
| Court | U.S. District Court — Southern District of Ohio |
CAROL A. TINGLE, Plaintiff,
v.
ARBORS AT HILLIARD, et al., Defendants.
Case No. 2:09-cv-01159
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF OHIO EASTERN DIVISION
Dated: April 21, 2011
This matter is before the Court for consideration of Defendants' motion for summary judgment (ECF No. 18) and its memorandum in support (ECF No. 18-1), Plaintiff's memorandum in opposition (ECF No. 24), and Defendants' reply memorandum (ECF No.25). For the reasons that follow, this Court finds the motion well taken.
Plaintiff, Carol Tingle, was formerly employed as a registered nurse with Defendant Arbors at Hilliard, a nursing home located in Hilliard, Ohio. Arbors at Hilliard is a registered trade name of Defendant Hilliard Care, LLC, a subsidiary of Defendant Extendicare Health Services, Inc., the later of which are headquartered in Milwaukee, Wisconsin. This Court will refer to Defendants as "Arbors."
On June 27, 2008, a resident passed away at Arbors during Tingle's shift. The parties dispute the events that led to the Hilliard Police Department arriving to assess the resident's death. As a result of the circumstances surrounding the death, Arbors reported that Tingle's
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actions constituted a Class II violation in a Disciplinary Action Report ("DAR") dated June 27, 2008 ("6-27-08 DAR").1 In the 6-27-08 DAR, Arbors indicated that Tingle failed to instruct another employee to conduct CPR on the resident and that Tingle had failed to notify the resident's physician.
In July 2008, the Ohio Department of Health ("ODH") investigated the June 2008 incident. ODH met with numerous Arbors employees, including Tingle, to discuss the incident. During this investigation, a question arose as to whether the expiration date on Tingle's CPR certification card had been altered. Arbors suspended Tingle pending further investigation. Arbors concluded its investigation and subsequently reinstated Tingle with back pay for the days missed during her suspension. As a result of the suspension, however, Arbors had issued Tingle a DAR on July 24, 2008 ("7-24-08 DAR"), for a Class II violation for violating a rule in the employee handbook. Tingle retained an attorney, who contacted Arbors to remove the 7-24-08 DAR from Tingle's employment file and Arbors agreed to remove that DAR from her file, not count it as progressive disciplinary action, and place the DAR in a sealed file.
On October 23, 2008, Arbors issued Tingle another DAR ("10-23-08 DAR") because she failed to follow a direct order from a supervisor, which is a Class III violation. Arbors indicated in the DAR that Unit 2 Manager Deanna Collins had told Tingle to return an orientee at a certain point in time, but that Tingle had failed to direct the orientee properly. Tingle asserted that Liessen Davis, Director of Nursing, permitted Tingle to keep the orientee. According to Arbors Administrator Tammy Meyers, Arbors reduced the 10-23-08 DAR from a Class III violation to a
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Class II violation.
On March 31, 2009, Arbors issued Tingle her final DAR ("3-31-09 DAR"), which resulted from Tingle's improper documentation of information in a patient's medical record and a violation of a safety rule, both of which are Class II violations. Arbors noted in the DAR that Tingle had falsely indicated in a patient's treatment record that she had changed the patient's dressing, that she had left a syringe by a patient's bedside during her shift, and that she had left the medical cart unlocked. As a result of the 3-31-09 DAR, Meyers and Arbors Staff Development Coordinator Shauna Arnold met with Tingle to present her with the final DAR and to terminate her employment. Tingle argues that the 3-31-09 DAR was unwarranted and contained incorrect information. She contends that the time the syringe was found and who found it are questionable, that the medical cart involved was not under her control, and that she did not falsify the treatment records.
After Tingle's termination from Arbors, she filed with a charge with the Ohio Civil Rights Commission ("OCRC") and the Equal Employment Opportunity Commission ("EEOC") in which she asserted age discrimination. The OCRC dismissed the charge and found no probable cause to conclude that Arbors had engaged in discriminatory practices. Tingle then filed a second charge with the OCRC and EEOC, again alleging that Arbors had discriminated against her because of her age. The OCRC again dismissed Tingle's charge, finding that there was no probable cause to believe that Arbors had engaged in discrimination.
Tingle subsequently filed suit in the Franklin County Court of Common Pleas, and Arbors removed the action to this Court in December 2009. (ECF No. 1.) After dropping several of her original claims, Tingle now asserts only a state law retaliatory discharge claim
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under Ohio Revised Code §§ 3721.24(A) and 4112.02(I) in Count Three of her Complaint and a federal retaliatory discharge claim under Title VII, 42 U.S.C. § 2000e-3(a) in Count Four. (ECF No. 2 23, 24.) Arbors has filed a motion for summary judgment, which is ripe for disposition. (ECF No. 18.)
Under the Federal Rules of Civil Procedure, summary judgment is appropriate "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). The moving party bears the initial burden of presenting parts of the record which illustrate that no genuine issue of material fact exists. Havensure, L.L.C., v. Prudential Ins. Co. of Am., 595 F.3d 312, 315 (6th Cir. 2010) (citing White v. Baxter Healthcare Corp., 533 F.3d 381, 389-90 (6th Cir. 2008); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)). The Court may grant the motion if the nonmoving party fails to establish a sufficient showing of the existence of a required element that the nonmoving party has the burden of proving at trial. Novak v. MetroHealth Med. Ctr., 503 F.3d 572, 577 (6th Cir. 2007) (citing Celotex Corp., 477 U.S. at 322).
The Court must view the factual evidence and draw reasonable inferences in a light most favorable to the nonmoving party. Corrigan v. U.S. Steel Corp., 478 F.3d 718, 723 (6th Cir. 2007) (citing Thomas v. Cohen, 453 F.3d 657, 660 (6th Cir. 2006)); Ctr. for Bio-Ethical Reform Inc. v. City of Springboro, 477 F.3d 807, 820 (6th Cir. 2007) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)). A nonmoving party relying on mere allegations or denials of the moving party's pleadings is not sufficient; rather, the nonmoving party must establish specific facts showing there is a genuine issue of material fact. Havensure,
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595 F.3d at 315 (citing Moldowan v. City of Warren, 578 F.3d 351, 354 (6th Cir. 2009)). A genuine issue of material fact exists if the outcome could be affected by a disputed fact or if the evidence is such that " 'a reasonable jury could return a verdict for the nonmoving party.' " Beck-Wilson v. Principi, 441 F.3d 353, 359 (6th Cir. 2006) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). Accordingly, the central issue is " 'whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.' " Knox v. Neaton Auto Prods. Mfg. Inc., 375 F.3d 451, 456 (6th Cir. 2004) (quoting Anderson, 477 U.S. at 251-52).
A. Retaliation related to Age Discrimination
1. Exhaustion
Arbors argues that Tingle filed two discrimination charges with the OCRC based on age, not retaliation. (ECF No. 18, at 7.) Arbors therefore asserts that this Court does not have subject matter jurisdiction over Tingle's retaliation claim because Tingle failed to file a retaliation claim with the EEOC/OCRC before bringing a Title VII retaliation claim in federal court. (Id. at 7.) Tingle disagrees with Arbor's assertion and argues that her two OCRC Intake Questionnaires explicitly mention "retaliation." (ECF No. 24, at 9.) Tingle contends that her retaliation claim was within the scope of her discrimination charge and that her retaliation claim could reasonably be expected to grow out of that original claim. (ECF No. 24, at 9.)
Before a plaintiff can bring a Title VII claim in federal court, a plaintiff must first raise the claim in a discrimination charge filed with the EEOC. See Hollimon v. Shelby County Gov't,
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325 Fed. Appx. 406, 411 (6th Cir. 2009). With regard to retaliation claims, the Sixth Circuit has held that "retaliation claims based on conduct that occurred before the filing of the EEOC charge must be included in that charge." Tisdale v. Federal Exp. Corp., 415 F.3d 516, 527 (6th Cir. 2005) (quoting Strouss v. Mich. Dep't of Corr., 250 F.3d 336, 342 (6th Cir. 2001)) (emphasis omitted). Although the Sixth Circuit previously held that the requirement to include an allegation in the EEOC charge was jurisdictional, the Supreme Court decided in Arbaugh v. Y & H Corp., 546 U.S. 500 (2006), that a requirement is jurisdictional only when Congress "clearly states" that the requirement is to be...
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