United States District Court, Eastern District of Arkansas, Pine Bluff Division
D.P. Marshall Jr., United States District Judge
Louise Rounds worked as a certified nursing assistant for Southern Heritage, a rehabilitation hospital, for several years. In October 2011, a co-worker made a cell-phone video of Rounds sitting in a patient's room under a blanket with her legs elevated. The director of nursing, Tremica Lane, concluded that Rounds was sleeping on the job. Lane decided Rounds should be fired. The facility administrator, Debbie Thornton, approved that decision and Lane ended Rounds's employment. Rounds and Lane are African-American; Thornton is Caucasian. Rounds was fifty-four at the time. She says her disability-degenerative knee disease - required her to take breaks with her legs up; Southern Heritage knew about and accommodated this need; she was monitoring a patient; and she wasn't sleeping. She alleges that Southern Heritage fired her because of her race, her age, and her disability. Rounds also alleges that Southern Heritage violated the Family Medical Leave Act by denying her leave to take care of her mother and for knee surgery. Finally, Rounds alleges that Southern Heritage retaliated against her for making many FMLA/vacation time requests, complaining about health insurance that lapsed during leave, making an EEOC claim, and filing a grievance with the local United Food and Commercial Workers Union. Southern Heritage moves for summary judgment on all claims. The Court will develop the material facts -taking them in Rounds's favor where disputed -on each group of claims. Torgersoit v. City of Rochester, 643 F.3d 1031, 1042 (8th Cir. 2011) (en banc).
2. Race Claims.
Rounds alleges racial discrimination under Title VII, the Arkansas Civil Rights Act, and 42 U.S.C. § 1981.
Rounds filed two EEOC charges. Neither alleged race discrimination. No 45-4. Rounds's Title VII race claim therefore fails because she didn't exhaust her administrative remedies.
Rounds had one year to make an employment-discrimination claim under the Arkansas Civil Rights Act. Ark. Code Aim. § 16-123-107(c)(3). She was fired in October 2011. She didn't allege race discrimination until more than two years later, when she moved to amend her complaint. No 18. Her ACRA race claim is time barred.
The Court assumes Rounds has made a prima facie case on her § 1981 claim. Harris v. Hays, 452 F.3d 714, 717-18 (8th Cir. 2006). Southern Heritage has provided a legitimate non-discriminatory reason for firing Rounds - sleeping on the job. The question is whether a jury could reasonably conclude that the hospital's reason was a pretext for race discrimination. Ridout v. JBS USA, LLC, 716 F.3d 1079, 1083-87 (8th Cir. 2013).
Southern Heritage's handbook lists sleeping on the job as a category I policy violation, which subjects an employee to immediate termination. No 45-3 at 1. According to one employee, lots of folks slept on the job, but, around the time Rounds was fired, the hospital started cracking down. No 55-14 at 15-16, 47-48. Rounds participated in an inservice training less than two weeks before her firing that hit this point: "If you are found sleeping on the job, this is termination-no warnings will be given." No 59-1. LPN Lila Williams used her cell phone to record Rounds in a blind patient's room, sitting with her legs up and covered with a blanket. Though this fact is disputed, the Court assumes the light was on when Williams first entered the room, because that was Rounds's testimony. No 55-1 (Part I) at 70. Williams turned the light out, which prompted Rounds to say "Lila, cut the light back on." Ibid. Williams returned with a co-worker and a cell phone, and shot the video. Williams called Thornton that night and sent her the video. No 55-4 at 35. Thornton told Williams to call the Union representative, send Rounds home, and have Rounds meet with Lane the next day. No 55-4 at 32-33. Lane watched the video. After an investigation. Lane decided to fire Rounds; and Thornton, the facility administrator, gave her a green light. No 55-4 at 34.
In response to the hospital's business reason, Rounds points to two Caucasian employees who slept on the job but weren't fired. These individuals must be similarly situated in all relevant respects to be valid comparators. Ridout, 716 F.3d at 1085. One co-worker, Chris, had different supervisors. No 55-14 at 59. So he drops out. The other co-worker, LPN Williams - the one who reported Rounds - is a closer question.
Williams helped present the October inservice, which warned that sleeping at work would result in termination. No 59-1. There's a photograph of Williams sleeping on the job. It was posted for a while at a nurse's station where Lane or Thornton could have seen it. If s unclear when the photo was taken; it's also unclear whether Williams was on or off the clock. No 55-16 at 30-31. While they were working together, Williams told Rounds (and other CNAs) that she (Williams) would be down the hall sleeping if they needed her and that management knew about and approved her sleeping. No 55-1 (Part II) at 41. In her exit interview. Rounds asked Lane why Williams wasn't going to be fired too - Rounds says it was common knowledge that Williams slept on the job. No 55-1 (Part II) at 41-44. Lane told Rounds to mind her own business. Lane had disciplined Williams for non-category I offenses, but it was another supervisor who didn't fire Williams for a category I offense involving patient medication. No 55-19, 55-20, 55-21, 55-22, 55-22A, & 55-23. Williams is an LPN, while Rounds is a CNA. But they both worked for Lane, and ultimately Thornton. And both were formally subject to the no-sleeping rule. Giving Rounds the benefit of the disputed facts and reasonable inferences in this murky record, the Court concludes that Williams is a valid comparator.
Rounds, however, has failed to create a jury question on pretext. Southern Heritage had a video of what appeared to be a serious rule violation. Section 1981 doesn't require employers to make correct decisions, wise decisions, or fair decisions. Hill v. St. Louis University, 123 F.3d 1114, 1120 (8th Cir. 1997). It forbids contract-related decisions based on race. During the EEOC process. Rounds said that race wasn't a factor in Southern Heritage's decision. No 55-1 (Part U) at 52. Lane, the primary decision maker, is African-American too. When asked on deposition about racial discrimination by Lane, Rounds replied "I can't say one way or the other." No 55-1 (Part 11) at 32. This remark was candid and accurate -the Court doesn't see any evidence that Lane harbored racial animus in general or against Rounds in particular. Rounds "believe[s]" that Thornton's approval of her firing was race based-because Rounds believes Thornton saw the pictures, knew Williams was sleeping on the job too, but didn't fire her. No 55-1 (Part II) at 32-33. A person's belief about what happened, though, doesn't create a jury question unless it rests on evidence or reasonable inferences from evidence. Davis v. Jefferson Hospital Association, 685 F.3d 675, 681-684 (8th Cir. 2012).
Rounds gave specifics about LPN Williams's picking at her, and other African-American CNAs, and testified that Williams's actions were motivated partly by workplace disputes and partly by race. E.g., No 55-1 (Part I) at 39-40, 42-48, 55, 79-80 & No 55-1 (Part II) at 30. But Rounds doesn't argue that Williams, prompted by racial bias, duped an innocent Lane and Thornton into the firing; Rounds argues instead that Lane and Thornton acted with actual racially discriminatory intent. So a cats-paw theory isn't in play. Compare Diaz V. Tyson Fresh Meats, Inc., 643 F.3d 1149, 1151-52 (8th Cir. 2011).
Taking as truth that Williams slept on the job and got a pass, there is simply insufficient evidence that race motivated Southern Heritage treating Rounds differently. Rounds's racial discrimination claim therefore fails as ...