White v. Northern Michigan Regional Hosp.

• Decision Date: 11 September 2009
• Docket Number: Case No. 1:08-cv-734.
• Citation: 659 F.Supp.2d 858
• Parties: Melissa WHITE, Plaintiff, v. NORTHERN MICHIGAN REGIONAL HOSPITAL, Defendant.
• Court: U.S. District Court — Western District of Michigan

659 F.Supp.2d 858

Melissa WHITE, Plaintiff, v. NORTHERN MICHIGAN REGIONAL HOSPITAL, Defendant.

Case No. 1:08-cv-734.

United States District Court, W.D. Michigan, Southern Division.

September 11, 2009.

Julie A. Gafkay, Law Office of Julie A. Gafkay PLC, Frankenmuth, MI, for Plaintiff.

Maureen Rouse-Ayoub, Bodman LLP, Detroit, MI, for Defendant.

OPINION and ORDER

PAUL L. MALONEY, Chief Judge.

Dismissing the Complaint Without Prejudice:

Dismissing the Title VII Claim for Failure to Exhaust Administrative Remedies Declining Supplemental Jurisdiction over the State-Law Claims

Surgical technician Melissa White brings this Title VII / Pregnancy Discrimination Act ("PDA") pregnancy-discrimination action against her former employer, Northern Michigan Regional Hospital ("the hospital"), with pendent claims for sex and pregnancy discrimination and retaliation under Michigan's Elliott-Larsen Civil Rights Act ("MELCRA"). It is uncontested that the court has original federal-question jurisdiction over the Title VII claim (28 U.S.C. § 1332) and discretionary supplemental jurisdiction over the state-law claims (28 U.S.C. § 1367). White began working for the hospital as an at-will employee in September 2007, subject to a probationary period during which she was not eligible for vacation or progressive discipline procedures. The parties agree that White informed the hospital that she was pregnant on October 1, 2007, and her employment ended on December 19, 2007,¹ towards the end of her probationary period. The hospital moves to dismiss on the ground that White failed to exhaust her administrative remedies. In the alternative, the hospital moves for summary judgment on the ground, inter alia, that White cannot show a genuine issue of material fact as to some of the elements of a prima facie case of pregnancy discrimination.² The court heard oral argument on Wednesday, September 9, 2009. For the reasons that follow, the court will dismiss the Title VII claim without prejudice for failure to exhaust administrative remedies, and decline supplemental jurisdiction over the state-law claims.

Background and Procedural History.

White's Training and Performance. White is 25 years old and has earned two Associate's degrees from Mott Community College and a Surgical Technician Certification from Northern Michigan University; she and her husband and child lived in the Upper Peninsula ("UP") of Michigan during the relevant period, see Plaintiff's Brief in Opposition to Summary Judgment filed July 16, 2009 ("P's Opp.") Ex. 1 at 7 and Ex. 2, though counsel stated at oral argument that they have since moved to Northern Lower Michigan.

White was hired on a probationary basis in the entry-level position of Surgical Technologist I ("Surgical Tech") for the hospital in Petoskey, Michigan. She was employed in that capacity from Monday, September 17, 2007 until her termination about three months later, on Wednesday, December 19, 2007. See Ms. White's Complaint filed August 6, 2008 ("Comp") ¶¶ 6-7 and 17; see also P's Opp. Ex. 1 (White Dep.) at 29. White's job was to assist physicians during surgery. See Defendant's Motion for Summary Judgment filed June 22, 2009 ("MSJ") Ex. 2 (White Dep.) at 25. She acknowledges that a surgical tech's schedule is based on the surgeries being performed at the hospital, which therefore needed sufficient staff available at the time each surgery is scheduled. See MSJ Ex. 2 (White Dep.) at 25.

The Surgical Tech position was White's first following her graduation. See MSJ Ex. 3 (White's Employment Application). Like other new employees at the hospital, White was subject to a 180-day probationary period, during which she was ineligible for time off or progressive discipline procedures during that time. See MSJ Ex. 2 (White Dep.) at 49 and MSJ Ex. 4 (excerpts from employee handbook). White understood that the training was important and that the hospital spent significant money and staff time to prepare new Surgical Techs for the transition to a regular surgical schedule. See MSJ Ex. 2 (White Dep.) at 94-95 and 123. She also understood that her supervisor, Jeanette Rockwell, was concerned about her inconsistent attendance because Rockwell was responsible for scheduling surgical techs in the operating rooms and the hospital needed White to be present and doing her job, see MSJ Ex. 2 (White Dep.) at 91.

The training required White to rotate through each of the operating-room surgical specialities, namely general/vascular, urology/gynecology, ENT/plastics, neurosurgery, and orthopedics. See MSJ Ex. 2 or P's Opp. Ex. 1 (White Dep.) at 29. During this training, White was observed and supervised by more-experienced surgical techs called preceptors, who provided feedback and evaluations. See MSJ Ex. 2 (White Dep.) at 44 and 95. Each week the preceptors submitted progress reports, which Education Coordinator Jeanette Rockwell reviewed with White and the other probationary employees. See P's Opp. Ex. 1 (White Dep.) at 29.

White presents progress reports which she characterizes as praising her performance and attitude throughout September, October and November, primarily September. The first progress report, hand-dated Sept. 20, 2007 by preceptor John Sackett, described White's first day of work as follows, in its entirety:

1. Summary of Assignments: * * *

2. Time Management: great for first day

3. Equipment/Supplies Management: learning to read picksheet

4. Communication/Interpersonal Skills: not afraid to ask questions

5. Additional Experiences Needed: first day N/A

6. Strengths/Weaknesses: interested in learning, time in surgery

P's opp. Ex. 4 at P0075. The second progress report, hand-dated 9/21/07 by preceptor Diane Hinsley, states as follows, in its entirety:

1. Summary of Assignments: * * *

2. Time Management: working on management of movement and organization of supplies

3. Equipment/Supplies Management: needs time to find where things are kept in this OR

4. Communication/Interpersonal Skills: [blank]

5. Additional Experiences Needed: Needs to keep moving—just takes time to understand this OR.

6. Strengths/Weaknesses: [blank]

P's Opp., Ex. 4 at P0074. The third progress report, hand-dated 9-23-07 by preceptor John Sackett, states as follows, in its entirety:

1. Summary of Assignments: * * *

2. Time Management: good

3. Equipment/Supplies Management: learning

4. Communication/Interpersonal Skills: developing

5. Additional Experiences Needed: yes

6. Strengths/Weaknesses: Many

P's Opp., Ex. 4 at P0072. The fourth progress report, hand-dated 9-24-07 by preceptor Diane Koenigsknecht, states as follows, in its entirety:

1. Summary of Assignments: * * *

2. Time Management: OK

3. Equipment/Supplies Management: OK

4. Communication/Interpersonal Skills: good

5. Additional Experiences Needed: more cases

6. Strengths/Weaknesses: She remembers from case to case and asks appropriate questions.—Melissa needs to keep one eye & ear on the [sterile?] field and speed up counts

P's Opp., Ex. 4 at P0073. The fifth progress report, hand-dated 9-27-07 by preceptor Diane Koenigsknecht, states as follows, in its entirety:

1. Summary of Assignments: * * *

2. Time Management: She's working on it and will continue to get better

3. Equipment/Supplies Management: same as above

4. Communication/Interpersonal Skills: friendly, asks approp. questions

5. Additional Experiences Needed: more case[s] especially bigger procedures

6. Strengths/Weaknesses: positive attitude, desire to do well [/] getting flustered or feeling overwhelmed setting up larger cases, needs to speed up on counting.

P's Opp., Ex. 4 at P0071. The sixth progress report, hand-dated 10-10-07 by a preceptor whose signature is illegible, states as follows, in its entirety:

1. Summary of Assignments: * * *

2. Time Management: Does good job with time mgt.

3. Equipment/Supplies Management: Does good job with supply mgt.

4. Communication/Interpersonal Skills: Good communication skills

5. Additional Experiences Needed: More time with general vascular surgery

6. Strengths/Weaknesses: Good job setting up 1st 2 cases. Pretty good job converting 2nd case to an open case. Need to put inst. into DR's hands. Don't sit while waiting for DR & pt. to be in Room. Please break scrub.

P's Opp., Ex. 4 at P0066. The seventh progress report, hand-dated 10-15-07 by preceptor Lori Rutherford, states as follows, in its entirety:

1. Summary of Assignments: * * *

2. Time Management: great job

3. Equipment/Supplies Management: great job

4. Communication/Interpersonal Skills: doesn't like to be guided or given advice, a bit defiant but still good person

5. Additional Experiences Needed: When gowning two or more doctors (and/or P.A. students) the second shouldn't get close to sterile field to be gowned (you know what incident I'm referring to)

6. Strengths/Weaknesses: Listen to us, we are only helping; not being mean! You are doing wonderful, but there is still a lot to learn.

P's Opp., Ex. 4 at P0065. The eighth progress report, hand-dated 10-17-07 by a preceptor whose name seems to be Mark Sanche and also referring to a preceptor named only "Lisa", states as follows, in its entirety:

1. Summary of Assignments: * * *

2. Time Management: ready on time.

3. Equipment/Supplies Management: able to pick supplies necessary for case

4. Communication/Interpersonal Skills: no problem communicating

5. Additional Experiences Needed: more open vascular cases

6. Strengths/Weaknesses: motivated eager to learn

P's Opp., Ex. 4 at P0063. The ninth progress report, hand-dated 10-25-07 by a preceptor whose signature is illegible but may be named "Devonne McCarter", states as follows, in its entirety:

1. Summary of Assignments: * * *

2. Time Management: comes back from break promptly (sometimes sooner)

3. Equipment/Supplies Management: [check mark symbol]'s case carts[,] asks appropriate questions regarding cases

4. Communication/Interpersonal Skills: speaks up at appropriate times. Asks appropriate questions.

5....