Quick v. Vistacare, Inc.

864 F.Supp.2d 492

Sharon QUICK, Plaintiff,

v.VISTACARE, INC., Defendant.

Civil Action No. 3:10–CV–1531–G.

United States District Court,

N.D. Texas,

Dallas Division.

March 29, 2012.

Marla Pittman, Dallas, TX, for Plaintiff.

Alicia Sienne Voltmer, Ogletree Deakins Nash Smoak & Stewart, Preston Caleb Patterson, Constangy Brooks & Smith, Dallas, TX, for Defendant.

MEMORANDUM OPINION AND ORDER

A. JOE FISH, Senior District Judge.

On or about August 18, 2003, the defendant VistaCare, Inc. (“VistaCare”) hired the plaintiff Sharon Quick (“Quick”) as a registered nurse case manager. Plaintiff's Original Petition and Request for Disclosure (“Petition”) ¶ 6, attached to Defendant VistaCare, Inc.'s Notice of Removal (docket entry 1) as Exhibit A (docket entry 1–2). At the time VistaCare hired Quick, Quick disclosed that she suffered from insomnia, a “disability” for which she was under medical care and thus required “certain reasonable accommodations.” Id. Consequently, VistaCare set Quick's workday to begin at 12:00 noon and to end at 8:00 p.m. Id. VistaCare, however, contends that Quick's workday was scheduled from 12:00 p.m. until 8:00 p.m. because she requested these hours as a “night person” and did not disclose a disability to case manager Marlene Casco, who hired Quick. Defendant's Brief in Support of its Motion for Summary Judgment (“Motion”) at 3 (docket entry 19). As a case manager, Quick attended, either by speaker phone or in person, “sporadic” Monday meetings that began at 8:00 a.m. or 8:30 a.m. Id.

In December of 2004, VistaCare hired Elise Powers (“Powers”) as a director. Petition ¶ 7. According to Quick, Powers “repeatedly harassed” Quick about her work hours. Id. In August of 2006, at the insistence of Powers, Quick provided VistaCare with documentation that Quick was unable to work from midnight to 10:00 a.m. Id. ¶ 8. In her review that same month, Quick's work hours changed from 11:00 a.m. to 8:00 p.m., and she received a merit raise. Id.

In August of 2006, as a result of a state Medicare audit, Powers implemented Monday 8:30 a.m. meetings, meetings which had previously been held sporadically. Motion at 4. Powers instructed Quick to attend these meetings. Id. Quick then submitted a note from Dr. Gustavo Day which indicated that she could not work from midnight until 10:00 a.m. Id. Dr. Day did not diagnose Quick with insomnia. Id. at 5.

In August of 2007, Quick took a leave of absence from VistaCare under the Family and Medical Leave Act (“FMLA”) in order to have shoulder surgery. Petition ¶ 9; Motion at 6. At that time, Quick avers, “[d]uring her 4 years as a Registered Nurse Case Manager, [she] received regular positive evaluations and merit raises.” Petition ¶ 9. Though she exhausted her FMLA leave, VistaCare extended Quick's leave period. Motion at 6.

In January of 2008, Quick returned from her leave of absence, and VistaCare offered her a position as director of public relations.¹ Petition ¶ 10. Quick declined the offer as it required her to attend early morning meetings. Id. Instead, Quick accepted a position as hospital liaison and transitioned into the director of public relations position after a couple of months. Id. Quick accepted the director of public relations position only because VistaCare agreed that the only morning meeting which required her attendance was the Monday marketing meeting at 10:00 a.m. Id.

In January of 2008, Powers first became primarily responsible for Quick's work schedule. Id. ¶ 11. Powers purportedly ridiculed and criticized Quick in front of other VistaCare employees for Quick's inability to arrive at work by 8:30 a.m. Id. In August of 2008, Quick's supervisor gave her a merit raise, but the harassment continued. Id. ¶ 12.

In April of 2008, Power received a complaint from the Medical City Hospital Director of Social Work that Quick had committed serious HIPAA ² violations at the hospital and was no longer welcome there. Motion at 6.

On November 17, 2008, Powers allegedly told Quick that if Quick could not arrive at work by 8:30 a.m., then Quick no longer had a job at VistaCare. Petition ¶ 13. Quick claims that Powers “acting as an agent of VistaCare, terminated [Quick] by ceasing to provide [Quick] with the reasonable accommodations that she required to perform her job” and thus discriminated against Quick based on her disability. Id. VistaCare contends that Quick resigned. Motion at 8–9.

On July 24, 2009, Quick jointly filed a charge of discrimination (“charge”) with the Texas Workforce Commission and the Equal Employment Opportunity Commission (“EEOC”) alleging discrimination due to denial of a reasonable accommodation to adjust her work hours on November 15, 2008, and her discharge on November 17, 2008. Id. at 9; see also Appendix to Defendant's Brief in Support of its Motion for Summary Judgment (“App.”) at App. 157. Quick including a statement that “I believe I have been discriminated against because of my disability in violation of the Americans with Disabilities Act of 1990.” There is no mention of any other grounds for relief. In support of her charge, Quick included a note from a new doctor, which Quick admits was submitted after she left VistaCare. Motion at 9. On June 3, 2010, the EEOC issued a dismissal and notice of right to sue. Id. at 10.

On July 6, 2010, Quick filed a case in the 298th Judicial District Court of Dallas County, Texas. On August 6, 2010, VistaCare timely removed the case to this court. Under a theory of respondeat superior, Quick contends that VistaCare (1) violated the Americans with Disabilities Act (“the ADA”), 42 U.S.C. § 12101, et seq., and the Texas Commission on Human Rights Act, Tex. Lab. Code Ann. § 21.001, et seq. (Vernon 1996) (“TCHRA”), by discharging her because of her disability and failing to make reasonable accommodation to her disability, (2) violated Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e, et seq., by creating and allowing a hostile work environment, and (3) intentionally inflicted emotional distress on her. See Petition at 4–6.

VistaCare moves for summary judgment on all of Quick's claims. Quick has failed to respond to VistaCare's arguments regarding her hostile work environment claim under Title VII and her intentional infliction of emotional distress claim, as well as VistaCare's argument that Quick failed to exhaust her TCHRA disability claim. Defendant's Reply to Plaintiff's Response to Defendant's Motion for Summary Judgment (“Reply”) at 1 (docket entry 29). Quick only responded to VistaCare's motion for summary judgment on her ADA claim. See generally Plaintiff's Brief in Support of Her Response to Defendant's Motion for Summary Judgment (docket entry 27).

I. ANALYSIS

A. The Summary Judgment Standard

Summary judgment is proper when the pleadings and evidence before the court show that no genuine issue exists as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a); see also Celotex Corporation v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The disposition of a case through summary judgment “reinforces the purpose of the Rules, to achieve the just, speedy, and inexpensive determination of actions, and, when appropriate, affords a merciful end to litigation that would otherwise be lengthy and expensive.” Fontenot v. Upjohn Company, 780 F.2d 1190, 1197 (5th Cir.1986). While all of the evidence must be viewed in a light most favorable to the nonmovant, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (citing Adickes v. S.H. Kress & Company, 398 U.S. 144, 158–59, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970)), neither conclusory allegations nor unsubstantiated assertions will satisfy the nonmovant's summary judgment burden. Calbillo v. Cavender Oldsmobile, Inc., 288 F.3d 721, 725 (5th Cir.2002) (citing Little v. Liquid Air Corporation, 37 F.3d 1069, 1075 (5th Cir.1994) (en banc)). A genuine issue of material fact exists “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson, 477 U.S. at 248, 106 S.Ct. 2505.

The movant makes the necessary showing by informing the court of the basis of its motion and by identifying the portions of the record which reveal there are no genuine material fact issues. Celotex, 477 U.S. at 323, 106 S.Ct. 2548. The pleadings, depositions, admissions, and affidavits, if any, must demonstrate that no genuine issue of material fact exists. Fed. R. Civ. P. 56(c).

If the movant makes the required showing, the nonmovant must then direct the court's attention to evidence in the record sufficient to establish that there is a genuine issue of material fact for trial. Celotex, 477 U.S. at 323–24, 106 S.Ct. 2548. To carry this burden, the “opponent must do more than simply show that there is some metaphysical doubt as to the material facts.” Matsushita Electric Industrial Co., Ltd. v. Zenith Radio Corporation, 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). Instead, the nonmovant must show that the evidence is sufficient to support a resolution of the factual issue in her favor. Anderson, 477 U.S. at 249, 106 S.Ct. 2505. When conflicting evidence is presented, the court is not permitted to make credibility determinations regarding the evidence. See Lindsey v. Prive Corporation, 987 F.2d 324, 327 (5th Cir.1993). The nonmovant cannot survive a motion for summary judgment, however, by merely resting on the allegations in her pleadings. Isquith for and on behalf of Isquith v. Middle South Utilities, Inc., 847 F.2d 186, 199 (5th Cir.), cert. denied,488 U.S. 926, 109 S.Ct. 310, 102 L.Ed.2d 329 (1988); see also Celotex, 477 U.S. at 324, 106 S.Ct. 2548.

B. The Charge

A condition precedent for bringing suit on an employment discrimination claim under Title VII is the timely filing and exhaustion of an EEOC charge. See42 U.S.C. § 2000e–5(e)(1); Taylor v. Books A Million, Inc., 296 F.3d 376,...