Porter v. Tri-Health, Inc.

KIMBERLY A. PORTER PLAINTIFF v. TRI-HEALTH, INC. DEFENDANT

CIVIL ACTION NO. 1:16cv00978-WOB

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF OHIO WESTERN DIVISION

November 2, 2018

MEMORANDUM OPINION AND ORDER

This is an employment discrimination case. Plaintiff Kimberly Porter has sued TriHealth, Inc. alleging that TriHealth's termination of her employment violated the Americans with Disabilities Act ("ADA"), Title VII of the Civil Rights Act of 1964 ("Title VII"), the parallel Ohio statute (O.R.C. § 4112), and the Family and Medical Leave Act ("FMLA").

This matter is before the Court on Defendant's motion for summary judgment. (Doc. 15). The Court previously heard oral argument on this motion and took the matter under advisement. (Doc. 29). After further study, the Court now issues the following Memorandum Opinion and Order.

Factual and Procedural Background

Plaintiff Kim Porter ("Porter") alleges that her employer, Defendant TriHealth ("Defendant") discriminated against her on the basis of her disability (lupus)¹ and her race, and also interfered with her FMLA rights.

Porter began working for Defendant at Defendant's Good Samaritan Hospital location in April 2009 as a sonographer in the Radiology Department. (Doc. 14, Porter Dep., 11.)² In addition to working regular shifts, Porter was assigned certain on-call responsibilities, which are at the center of this dispute. (Id. at 14.)

A. The On-Call Responsibility in the Radiology Department

Sonographers in the Radiology Department work regularly scheduled shifts during the hours the department is "open" (the department is staffed M-F, 7 a.m.-5 p.m., Sat., 8 a.m.-noon). However, to account for hospital emergencies, one sonographer must be "on-call" even when the department is closed. (Id. at 15.) Therefore, the sonographers are assigned "on-call responsibility" for the overnight hours for one day each week (5 p.m.-7 a.m.), every fourth or fifth³ weekend (12 p.m. Saturday through 7 a.m. Monday), and occasionally holidays (which are assigned through the rotation of sonographers). (Id. at 17.) Someone must be on-callduring the hours the department is not staffed. (Doc. 13, Patten Dep., at 13, 18-19, 20.)

At relevant times, the sonography department consisted of four regular sonographers and one or two "optional" sonographers. (Doc. 14, Porter Dep., at 13-14); (Doc. 13, Patten Dep., at 21-22.) An "optional" sonographer is generally hired to work in the department's weekend and on-call rotations and would also fill in if someone was sick or had a day off. (Doc. 17, Korblick Dep., at 9-10.) Optional sonographers were not scheduled for regular shifts, and so they worked "regular" hours only when they picked them up from someone else. (Id. at 10.) Dawn Patten ("Patten") supervised the sonographers and was Porter's direct boss.

Although each regular sonographer was assigned their on-call shifts, the sonographers were permitted to trade on-call responsibilities so long as someone was responsible for all on-call hours. (Doc. 13, Patten Dep., at 14, 40, 50.) The testimony is clear that everyone "hated" to be on-call, which led to a fair amount of shift-trading. Everyone agrees that when on-call, the employee had to respond to the hospital within one hour, could not drink alcohol, and was limited in their activities because one could not predict when one might be called in. (Doc. 17, Korblick Dep., at 22); (Doc. 22, Poelking Dep., at 12); (Doc. 18, Schill Dep., at 14.) Employees also testified that they did not sleepwell when on-call. (Doc. 17, Korblick Dep., at 22); (Doc. 18, Schill Dep., at 15); (Doc. 20, Bauer Dep., at 21.)

Some sonographers — usually the optional sonographers — would consistently take the lion's share of the on-call responsibility, and even extra regular shifts, to earn additional money, which reduced the on-call burden on the regular sonographers. (Doc. 13, Patten Dep., at 23-24); (Doc. 17, Korblick Dep., at 17.)

Sonographers were compensated $3.00 for every hour they were on-call, regardless of whether they were actually called in. (Doc. 17, Korblick Dep., at 18-19.) If they were called in, they were compensated for a minimum of three hours, regardless of whether they were at the hospital for two minutes or three hours.⁴ (Id.) Because optional sonographers were not assigned any regular shifts, the only way they could make more money was to take on-call shifts and regular sonographers' shifts. And, because working these shifts was disliked, taking an optional position was generally a means to get a foot in the door with the hopes of later transferring to other departments and positions.

Due to the willingness of some employees to pick up the on-call shifts, months or an entire year could pass with the regular sonographers not having any on-call responsibilities. (Doc. 13,Patten Dep., at 14.) Indeed, one sonographer, Rachel Schill, particularly disliked the on-call responsibility, and she almost never worked her on-call shifts, as someone else would usually take them for her. (Doc. 18, Schill Dep., at 37.)

However, even if another sonographer volunteered to take the hours, the individual originally assigned remained responsible for those hours. (Doc. 13, Patten Dep., at 40); (Doc. 18, Schill Dep., at 23.) So, if the volunteering sonographer became unavailable, it was the original sonographer's responsibility either to cover that shift or find someone else to cover it. A sonographer's willingness to take on-call hours could change without notice or reason. (See Doc. 17, Korblick Dep., at 36) (explaining what on-call responsibilities she would generally pick up from the regular sonographers but noting that "sometimes [she'd] be lazy and [she] wouldn't"). No matter what, a sonographer had to be on-call overnight and on weekends and holidays, and so someone always had the ultimate responsibility for the on-call shifts. (Doc. 13, Patten Dep., at 56.)

B. Porter's Employment and On-Call Responsibilities

Porter, like all regular sonographers, had regular shifts in the Radiology Department, and she also had on-call responsibilities. She was responsible for the overnight on-call responsibility on Tuesdays, every fourth weekend, and then holidays on a rotating basis. (Doc. 14, Porter Dep., at 17; 29.)Porter testified that she knew of the on-call responsibility when she was hired. (Id. at 14.)

Initially Porter worked full-time, but in early 2013, Porter went part-time, maintaining the same on-call responsibilities. (Id. at 12.) Then, during the summer of 2013, Porter was diagnosed with lupus. (Id. at 19.) In August, Porter requested consecutive FMLA leave through early November 2013. (Id. at 18-19; Doc. 14-1, Porter Ex. 3, at 10.) Porter also requested intermittent FMLA leave to accommodate any flare ups she might experience after her return. (Id. at 19-20; Doc. 14-1, Porter Ex. 4, at 14.) When Porter returned from her FMLA consecutive leave, she was assigned the same on-call responsibility she always had. However, the optional sonographer at the time, Lauren Poelking, was taking most (if not all) of the on-call hours for the regular sonographers, and so it appears that Porter did not have to accept the on-call responsibility hours at that time. (Doc. 14, Porter Dep., at 21.)

C. Porter's Doctor Restricts Her Ability to Take Overnight On-Call Responsibility

In June 2014, Porter's doctor imposed a restriction that she could no longer take the on-call responsibility after 9:00 p.m. (Id. at 30; Doc. 14-2, Porter Ex. 7, at 2.) When Patten became aware of this restriction, she noted that it was a "huge deal in this department." (Doc. 13, Patten Dep., at 30; Doc. 13-1, Patten Ex. 2, at 2.) To ensure coverage for the hospital, Patten sent anemail to the sonographers, requesting volunteers to cover Porter's on-call responsibilities and noting that, if no one volunteered, she would assign Porter's on-call responsibilities on a rotating basis. (Doc. 14-2, Porter Ex. 8, at 5.) In late July, Porter's restrictions were clarified that she could not take on-call responsibility from 9:00 p.m. until 6:00 a.m. the following morning. (Doc. 14-3, Porter Ex. 11, at 1.) It appears that Patten did not receive any volunteers in response to her email, because in August, she assigned Porter's Tuesdays to the regular sonographers on a rotating basis. (Doc. 14, Porter Dep., at 36, 43; Doc. 14-3, Porter Exhs. 12, 13, at 2-3.)

At some point in September 2014, Porter volunteered to take all evening on-call responsibility until 9:00 p.m. (except for Mondays) and all weekend call after 6:00 a.m. and before 9:00 p.m. (Id. at 54; Doc. 14-4, Porter Exhs. 16, 17, 1-2.) This resulted in Porter having more on-call responsibility hours than any other sonographer. (Doc. 14, Porter Dep., at 56-57); (Doc. 13, Patten Dep., at 49.) Patten applauded Porter's willingness to volunteer and thanked the other sonographers for not complaining when picking up Porter's overnight on-call responsibility. (Doc. 14-2, Porter Ex. 17, at 2.)

Nonetheless, Defendant asserts that ensuring coverage for Porter's overnight on-call responsibilities was difficult. The record contains many emails from Patten to her team regarding theon-call schedule and working to get all shifts covered. Patten testified that several sonographers complained about the fact that Porter did not have to work or at least be responsible for overnight on-call hours. (Doc. 13, Patten Dep., at 42-46.) Patten indicated that always making sure someone could cover the hours was stressful and difficult, and she had concerns about the long-term effect on employee morale. (Id. at 50-52; 71-72.)

Rachel Schill testified that she complained about Porter's inability to take overnight on-call responsibilities. (Doc. 18, Schill Dep., at 44, 45.) Patten indicated that both Rachel Schill and Jackie Bauer complained, (Doc. 13, Patten Dep., at 43), but Bauer's testimony suggests that, although she was not pleased with the situation and "vented" informally, she never...