Allen v. St. James Parish Hosp.

ANISSA G. ALLEN v. ST. JAMES PARISH HOSPITAL

CIVIL ACTION NO. 12-1619

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA SECTION "F"

Dated: November 13, 2013

ORDER AND REASONS

Before the Court is St. James Parish Hospital's motion for summary judgment. For the reasons that follow, the motion is GRANTED.

Background

This litigation arises out of claims of race and disability-based employment discrimination asserted by an African-American housekeeper for a hospital, who was indisputably fired for confronting and threatening an African-American co-worker on hospital premises.

Anissa G. Allen worked for St. James Parish Hospital as an at-will employee for approximately 19 years before she fired.¹ Duringthe course of her employment, she worked primarily for the hospital's housekeeping department. As a housekeeper, Ms. Allen was responsible for following established cleaning methods in assigned areas, adhering to work schedules, cleaning and sanitizing, and maintaining a working relationship with co-workers and hospital staff. Ms. Allen was trained on the hospital's standards of performance for employees, disciplinary system, and anti-discrimination policies. Among the performance standards expected by hospital employees, the hospital's human resources policy and procedures provides that the hospital "will not tolerate any offensive, intimidating, or hostile conduct [including "threatening or profane language toward others"] that may interfere with the performance of an employee's job or endanger the safety and well-being of anyone while on St. James Parish Hospital's premises."

Malinda Rein, the hospital's housekeeping manager, supervised Ms. Allen during the majority of her time working at the hospital.Ms. Allen received positive, neutral, and negative evaluations during her tenure with the hospital. She consistently received negative evaluations for poor cleaning or failure to clean as directed, failing to follow assigned work schedules, excessive absences and tardiness, excessive personal phone calls during work hours, poor time management, excessive socializing during work hours, and lack of respect for co-workers, supervisors, and hospital staff. Ms. Allen does not dispute the accuracy of the negative evaluations she received; she signed all evaluations except one, not because it was inaccurate, but because "it was not a good evaluation."²

Ms. Allen received more than 30 write-ups and counseling for violating hospital work policies and standards of performance. She was consistently written up for violations such as private phone calls during work hours, failure to clean assigned areas, excessive absences and tardiness, and improper clocking in and out.

The year before she was fired, Ms. Allen received eight write-ups and counseling sessions:

• on March 5, 2010 Ms. Allen was issued an employee counseling record for failing to clean the emergency room lobby by 9 a.m.

• on July 21, 2010 Ms. Allen received an employee counseling record for failing and refusing to properly clean the emergency room and report to her supervisor after completion even though she had been asked to do so three times that day.

Ms. Allen was issued a "day of decision making" with pay; in response, Ms. Allen wrote a letter stating that she would return to work, do her "job the best of [her] ability," "obey [her] supervisor," and "stay strong to control [her] mouth."

• on November 16, 2010 Ms. Allen was issued an employee counseling record as a result of a report that on November 7, 2010 Ms. Allen was watching television in the outpatient surgery area during work hours.

• on November 16, 2010 Ms. Allen was issued a second employee counseling record after a doctor reported that the emergency room doctor's lounge was not being cleaned when she was responsible for cleaning that area.

• on December 13, 2010 Ms. Allen was issued an employee counseling record after registered nurse Kevin Raul reported that (1) Ms. Allen was not using the wet floor sign while mopping, and a hospital employee almost slipped and fell on the wet floors; and (2) after RN Raul requested Ms. Allen empty the garbage cans at the nurses' station, Ms. Allen accused RN Raul of harassment and acting unprofessionally.

• on February 20, 2011 Ms. Allen was written-up and counseled by RN Andrea Wilson after it was reported to RN Wilson that Ms. Allen failed to respond for 45 minutes after she was paged over the intercom to report to her assigned area. Hospital security officer, Lubelia Kelson, who is African-American, reported to RN Wilson that she observed Ms. Allen returning to the hospital in her vehicle during the time of the intercom page, and RN Wilson included Ms. Kelson's statement in the write-up. Ms. Kelson also reported to RN Wilson that Ms. Allen threatened her after Ms. Kelson reported that she had left the hospital, and the write-up contains Ms. Kelson's claim that Ms. Allen told her "If I get reported, it ain't gonna be nothing nice." Ms. Allen was not in the hospital when she was paged because she went to get something out of her car. Ms. Allen confronted Ms. Kelson and spoke to her "with a slightly vigor tone of voice."

• on February 28, 2011 RN Wilson sent an email to Ms. Rein reporting that she was notified by "Hawk", a co-employee of Ms. Allen's who is also African-American, that Ms. Allen and Rudolph Carter, another housekeeping employee, were in the housekeeping department socializing for three hours during Ms. Allen's work shift. Ms. Allen does not dispute that she was socializing with Mr. Carter during her work shift. RN Wilson observed that the acute care area was dirty, a housekeeping cart had been left unattended, and RN Wilson was not able to find Ms. Allen for 45 minutes.

• on March 10, 2011 Ms. Allen was issued her final employee counsel record. The March 10, 2011 counseling record provided three bases for Ms. Allen's termination: (1) Ms. Allen wasgiven a written notice on December 13, 2010 for failing to treat co-workers with respect and failing to maintain a positive attitude; (2) on February 20, 2011 Ms. Allen confronted RN Wilson and threatened Ms. Kelson; and (3); on March 10, 2011 at 6:15 a.m., Ms. Allen verbally threatened and used profane language on hospital premises.

On May 25, 2011 Ms. Allen filed a charge with the Equal Employment Opportunity Commission, alleging race discrimination in violation of Title VII and disability discrimination in violation of the Americans with Disabilities Act. On June 22, 2012 Ms. Allen sued St. James Parish Hospital, alleging race and disability discrimination. In her complaint, Ms. Allen alleges that she was fired for not responding to a page over the intercom on March 10, 2011 and that she wears a hearing aid in her left ear; she also alleges "other [unspecified] acts of discrimination." A scheduling order was issued: a pretrial conference is scheduled for November 21, 2013 and a jury trial is scheduled for December 16, 2013. After her attorneys withdrew from representing Ms. Allen, she notified the Court that she would represent herself. On August 2, 2013 the magistrate judge scheduled a settlement conference for November 4, 2013. However, the plaintiff failed to appear for the conference.³

St. James Parish Hospital now seeks summary relief.

I.

A.

Local Rule 7.5 of the Eastern District of Louisiana requires that memoranda in opposition to a motion be filed eight days prior to the noticed submission date. The plaintiff, pro se, apparently filed her opposition papers on November 6, 2013, but for some unexplained reason the Clerk's Office did not docket the opposition until November 12, 2013. Because the plaintiff submitted her opposition paper only one day late, the Court will consider the arguments Ms. Allen raises. However, the Court notes that she has failed to submit a statement of contested facts and likewise has failed to submit any competent summary judgment evidence in support of the arguments she advances in her opposition paper.

This Court has previously observed:

Although the Fifth Circuit U.S. Court of Appeals forbids a district court from granting summary judgment merely because the motion is unopposed (even if the failure to oppose violated a local rule), if the Court's independent review of the record reveals that there are no genuine disputes as to any material facts, granting summary judgment is certainly appropriate. SeeHibernia Nat'l Bank v. Admin. Cent. Sociedad Anonima, 776 F.2d 1277, 1279 (5th Cir. 1985)("The movant has the burden of establishing the absence of a genuine issue of material fact and, unless he has done so, the court may not grant the motion, regardless of whether any response was filed."); John v. La. Bd. of Trs. for State Colls. & Univs., 757 F.2d 698, 709 (5th Cir. 1985); seealso Fed.R. Civ. P. 56(e)("If a party fails to properly support an assertion of fact or fails to properly address another party's assertion of fact as required by Rule 56(c), the court may . . . grant summary judgment if the motion and supporting materials-including the facts considered undisputed-show that the movant is entitled to it.").

See Danos v. Union Carbide Corp., No. 11-2491, 2012 WL 5877951, at *2 (E.D. La. Nov. 20, 2012)(Feldman, J.), aff'd by, --- Fed.Appx. ---, 2013 WL 5587226 (5^th Cir. Oct. 11, 2013)(per curiam); see also Luera v. Kleberg Cnty., Tex., No. 11-40774, 2012 WL 490407 (5th Cir. Feb. 15, 2012).⁴

B.

Federal Rule of Civil Procedure 56 instructs that summary judgment is proper if the record discloses no genuine issue as to any material fact such that the moving party is entitled to judgment as a matter of law. No genuine issue of fact exists if the record taken as a whole could not lead a rational trier of fact to find for the non-moving party. See Matsushita Elec. Indus. Co. v. Zenith Radio., 475 U.S. 574, 586 (1986). A genuine issue offact exists only "if the evidence is such that a reasonable jury could return a verdict for the non-moving party." Anderson v. Liberty Lobby, Inc....