The opinion of the court was delivered by: J. Leon Holmes United States District Judge
This is an employment discrimination case. Edna Seals, an African-American female, brought claims against her former employer, Correctional Medical Services, Inc., alleging age discrimination under the Age Discrimination in Employment Act of 1964 (29 U.S.C. § 631 et seq.), race discrimination and retaliation under Title VII of the Civil Rights Acts (42 U.S.C. § 2000e et seq.), and intentional infliction of emotional distress under Arkansas law. The defendant has moved for summary judgment. For the reasons stated below, this motion is granted in part and denied in part.
A court should grant summary judgment when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." FED. R. CIV. P. 56(c); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). The party moving for summary judgment bears the initial responsibility of informing the district court of the basis of its motion and identifying the portions of the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, that demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Group Health Plan, Inc. v. Philip Morris USA, Inc., 344 F.3d 753, 763 (8th Cir. 2003). When the moving party has carried its burden under Rule 56(c), the non-moving 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 (1985) (quoting FED. R. CIV. P. 56(e)). The non-moving party sustains this burden by showing that there are "genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Anderson, 477 U.S. at 250. When a non-moving party cannot make an adequate showing on a necessary element of the case 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 323. In deciding a motion for summary judgment, the Court must view the facts and inferences in the light most favorable to the party opposing summary judgment. Boerner v. Brown & Williamson Tobacco Corp., 260 F.3d 837, 841 (8th Cir. 2001) (citing Rabuska v. Crane Co., 122 F.3d 559, 562 (8th Cir. 1997)). If the evidence would allow a reasonable jury to return a verdict for the non-moving party, summary judgment should be denied. Derickson v. Fidelity Life Assoc., 77 F.3d 263, 264 (8th Cir. 1996) (citing Anderson, 477 U.S. at 248).
The Eighth Circuit has said that summary judgment should seldom be granted in discrimination cases where inferences are often the basis of the claim. Duncan v. Delta Consol. Indus., Inc., 371 F.3d 1020, 1024 (8th Cir. 2004) (citing Breeding v. Arthur J. Gallagher & Co., 164 F.3d 1151, 1156 (8th Cir. 1999)); Bassett v. City of Minneapolis, 211 F.3d 1097, 1099 (8th Cir. 2000). But see Bainbridge v. Loffredo Gardens, Inc., 378 F.3d 756, 762 (8th Cir. 2004) (Arnold, J. dissenting).
Edna Seals, a Licensed Practical Nurse, began working for Correctional Medical Services, Inc., in July 1999. CMS provides healthcare services and medical staffing to jails and prisons throughout the United States, including certain facilities in Arkansas. Seals began working for CMS at the Pine Bluff Diagnostic Hospital, but was transferred to the Tucker Maximum Security Prison at her request about three months later. Seals continued working at Tucker for the remainder of her employment with CMS. In this position, she dispensed medications to inmates, provided treatment to inmates, and reported sick calls.
Deborah Harris, CMS's Director of Nursing, and Charlotte Green, a supervisory employee, conducted Seals's annual performance evaluation on August 5, 2004. This evaluation showed that Seals met or exceeded the requirements of her position in most respects, but fell below the requirements in a few areas of performance. In the comments section of the evaluation form, Harris wrote that Seals was a "valuable asset to the team of nurses," and Seals wrote, "I enjoy working here as a nurse." Until the time that she received this evaluation, Seals enjoyed working at CMS and did not experience any type of behavior that made her think that her working conditions were intolerable.
On September 3, 2004, Seals failed to pass medications to barracks five, six, seven, and eight at Tucker, which was part of her job duties. One week later, Harris gave Seals a verbal counseling because of Seals's error. Seals testified in her deposition that she believed that she did not have enough time at work to complete all of her job duties and that this disciplinary action was unfair. When asked, "But the reason you think it's unfair is because you didn't have enough time, not because you think they were doing it because of your age or your race," Seals responded, "Well, on that, no." Seals now asserts that she "believed Harris wanted her gone because of her race and age."
After receiving the verbal counseling, Seals called Paul Torrez, CMS's Regional Manager, and scheduled a meeting for September 13, 2004. Seals scheduled this meeting, in part, because of the verbal counseling she had received.
Seals met with Torrez for about one hour. During this meeting, Seals told Torrez that a white nurse, Lisa Anderson, was allowed to work and play games on a computer, but black nurses were questioned for using it. Seals also told Torrez that Seals had to come in to work later than other nurses and that she therefore did not have enough time to prepare for "pill passes." Torrez told Seals that he would attend a staff meeting at Tucker and talk with other employees regarding Seals's concerns. Seals was satisfied with her meeting with Torrez.
Torrez attended the next staff meeting at Tucker and spoke with other CMS employees. Anderson was disciplined for playing games on the computer.
On September 14, the day after Seals's meeting with Torrez, Harris gave Seals an Action Plan for Time Management. This action plan documented a change in Seals's work hours from a 9:00 a.m. start time to an 8:00 a.m. start time and changed her shifts from Monday through Friday to Tuesday through Friday. The action plan also identified the tasks Seals was expected to perform during her shift as the pharmacy nurse.
Seals testified in her deposition that this change in working hours did not entirely alleviate her problem with regard to having enough time to complete her job duties, but it was an improvement. She also testified that she and Harris "weren't on bad terms" at that time. Seals nevertheless refused to sign the action plan, telling Harris that she would not sign it without talking to her lawyer.
On November 18, 2004, Seals erred in performing her job duties in that she did not "sign out" two Tylenol #3 tablets in the narcotics book or the medication administration record ("MAR"); she gave an inmate medications that were intended for a different inmate, rather than retrieving the tablets from stock medication; and she failed to count narcotics at the end of her shift. Seals asserts that she could not sign out the Tylenol #3 tablets because "the MAR had been pulled by another nurse;" that the inmate who was given tablets intended for a different inmate actually got the correct medication, so no one was harmed; and that she did not count narcotics "because a white nurse (RN Julia Mitchell) who was supposed to count with her refused to do so."
On November 19, Harris gave Seals a written counseling for the errors Seals had made the previous day. With the exception of Mitchell, Seals was not aware of any other CMS employees who failed to count narcotics at the end of their shifts but were not disciplined. Seals did not think that she was given the written counseling, however, because of her race. When asked in her deposition whether she thought her age had anything to do with it, Seals testified, "Maybe not, but it just sounds like she was out to get me, because I messed up." The record does not reveal Mitchell's age.
On November 29, 2004, Seals gave an inmate Tylenol #3; however, she cannot recall if she gave him one tablet or two. That day she also gave another inmate Tylenol #3 tablets after the doctor had discontinued the prescription. Seals did not check the MAR before giving the inmate this medication, but asserts that "another nurse, Vera Miller (white female) had filed the MAR making it unavailable to Ms. Seals. Vera Miller was not disciplined for her actions."
On November 30, Harris gave Seals a final written warning for the errors Seals made on November 29. Seals did not feel that this final written warning was related to her race or age. Seals did not know of any other CMS employees who gave the wrong narcotic medication to an inmate and who did not receive discipline for the error.
On December 1, the day after receiving the final written warning, Seals went to work at 8:00 a.m. When Seals arrived at work, Harris asked Seals if Seals had finished updating the MARs. Seals checked with co-worker James Hamilton to find out if he had finished the MARs, as Hamilton had previously told Seals that he would help with this task. Hamilton had not finished the MARs. Seals told Harris that the MARs were not finished. Harris told Seals that Seals had plenty of time to complete the MARs, the MARs were her responsibility, and she would have to complete them.
Seals felt that she could not complete this task and also prepare for medication passes. Miller suggested that Seals complete the MAR updates in the evening. Seals told Miller that Harris would "have my tail" if she did not update the MAR before evening. Seals asked Miller if Miller would help her, but Miller responded that she was too busy. Seals then asked Harris for help, and Harris responded that she and the other nurses were busy and could not help.
After Harris told Seals that no one was available to help her, Seals decided to call Torrez because she felt that "she could not get through to Harris that Seals needed help." Seals picked up a telephone book to find Torrez's telephone number. According to Seals, as she was holding the book Harris grabbed it and told Seals that Harris would call Torrez. Seals did not let go of the book. After less than one minute of both of them tugging on it, Harris let go.
After Harris let go of the book, Seals felt weak and asked a Certified Nursing Assistant ("CNA") to take her blood pressure. At that time, Seals took medication to control her blood pressure. When the CNA took Seals's blood pressure, at approximately 8:45 a.m., it was 175 over 97. Seals then told Harris that she needed to go to a doctor. Seals testified that Harris told her, "What you better do is get on back to work."
Seals did not return to work. She called her husband and told him to meet her at their home. Seals then left Tucker and drove home.
Seals saw her doctor later that day. During her visit with her doctor, Seals's blood pressure was 142 over 100, and he ordered her to take off work for five days due to hypertension.
Seals went on medical leave and never returned to work at CMS, but she did not resign immediately. During the time that Seals was off on medical leave, CMS paid her 58 hours of "Paid Time Off" compensation.
On December 7, 2004, Seals sent a letter to Torrez explaining all of her complaints about CMS. Seals admits that this letter was a complete representation of her complaints, as she did not exclude any complaint or grievance from the letter. In the letter, Seals alleged that she had been treated less favorably than certain white nurses on some occasions and that Harris had retaliated against her for meeting with Torrez on September 13. Seals did not allege that she was treated less favorably than younger nurses, harassed about her age, or otherwise subjected ...