Reagan v. Chosen Consulting, LLC

CHARLES REAGAN, Plaintiff, v. CHOSEN CONSULTING, LLC, Defendant.

No. 1:19-cv-03794-TWP-MG

United States District Court, S.D. Indiana, Indianapolis Division

September 13, 2021

Andrew Dutkanych, III BIESECKER DUTKANYCH & MACER LLC (Indianapolis)

Taylor Jon Ferguson BIESECKER DUTKANYCH & MACER LLC (Indianapolis)

Donald E. English, Jr. JACKSON LEWIS PC.

Mary M. McCudden JACKSON LEWIS PC.

Robert F. Seidler JACKSON LEWIS PC (Indianapolis)

ENTRY ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

Hon Tanya Walton Pratt, Chief Judge United States District Court

This matter is before the Court on a Motion for Summary Judgment (Filing No. 32) filed by Defendant Chosen Consulting, LLC ("Chosen Healthcare"). Plaintiff Charles Reagan ("Reagan") initiated this action against Chosen Healthcare alleging gender discrimination in violation of Title VII of the Civil Rights Act of 1964 ("Title VII") (Filing No. 1 at 3). Chosen Healthcare has moved the Court for summary judgment on this claim, arguing that it terminated Reagan's employment for legitimate nondiscriminatory reasons, namely that he engaged in abuse against multiple residents (Filing No. 32; Filing No. 33). For the following reasons, the Court denies the Motion.

I. BACKGROUND

The following facts are not necessarily objectively true; the Court, as required by Federal Rule of Civil Procedure 56, presents them in the light most favorable to Reagan as the non-moving party. See Hansen v. Fincantieri Marine Grp., LLC, 763 F.3d 832, 836 (7th Cir. 2014); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).

Reagan, who is male, first worked for Chosen Healthcare from 1996 through 1999. He was rehired in June 2017 to serve as a Certified Nursing Assistant ("CNA") in its Essex Nursing and Rehabilitation facility in Lebanon, Indiana ("Essex") (Filing No. 36-7 at 1). He had previously worked as a CNA at this location. His job description required, among other things, that he must

1. "work well with residents and staff",

2. "accept supervision and constructive criticism",

3. "possess the ability and willingness to deal tactfully with staff, residents, family members, visitors, government agencies/personnel and the general public",

4. "possess the ability and willingness to work harmoniously with other personnel",

5. "have patience, tact, a cheerful disposition and enthusiasm, as well as the willingness to handle difficult residents based on whatever cognitive level they are currently functioning",

6. "not pose a direct threat to the health or safety of other individuals in the workplace", and

7. "cope with the mental and emotional stress of the position".

(Filing No. 33-2 at 1-2). On top of his general duties, Reagan was specifically used as the primary enforcer of the facility's tobacco and alcohol policies, often requiring him to confiscate cigarettes and alcohol from residents (Filing No. 36-1 at 3-4, 12). The role of "male authority figure" made Reagan feel at times that he was "targeted" by some aggrieved residents because of his gender. Id. No. women were tasked with this job, and he believes he was picked for the duty because of his "deep, stern" voice. Id. at 4, 10, 11. As a result of being used "as a cop," Reagan made a complaint of gender discrimination to the former Administrator at Essex, Roger Brannan ("Brannan"), in September or October 2017 (Filing No. 36-26 at 6; Filing No. 36-1 at 7).

Reagan was also required to comply with Chosen Healthcare's Resident Abuse and Neglect Policy ("Abuse Policy"), which recognized that "each resident has the right to be free from abuse, neglect, and misappropriation of resident property." (Filing No. 33-3 at 1.) Under the Abuse Policy, abuse included that which was "verbal," "sexual," "physical," and "mental." Id. at 1-2. The Abuse Policy stated that "if the alleged violation is substantiated, appropriate corrective action will be taken." Id. at 4. While the Abuse Policy is silent as to next steps if abuse cannot be substantiated beyond a resident report, see id., abuse in any of the above-listed varieties was "STRICTLY PROHIBITED" and would result in suspension, investigation, and "possible termination." (Filing No. 33-4 at 1.) Reagan acknowledged receipt of the Abuse Policy on June 19, 2017 (Filing No. 33-5 at 1), and understood that resident abuse could lead to termination (Filing No. 33-1 at 4, 5).

Exactly one year later, Reagan received his annual Employee Performance Review, where his supervisor Deborah Thomas ("Thomas") indicated that he was "excellent" (the highest rating) in five of six categories: (1) "Job Knowledge," (2) "Work Quality," (3) "Attendance/Punctuality," (4) "Initiative," and (5) "Dependability." (Filing No. 36-18 at 1.) In the final category- "Communication/Listening Skills"-Thomas marked his performance as "Good" (the second highest rating), indicating that his "[m]ale voice can sometimes be taken as yelling/arguing when not." Id. Reagan received a total score of 29 out of 30 points, and Thomas thanked him "for all [his] help." Id. Following this review, Reagan received a pay raise of 3%; approximately six months earlier, he had received a 13% pay raise because of a "new pay scale." Id. at 2-3.

From September 9, 2018 to September 14, 2018, the Indiana State Board of Health ("Board") conducted a recertification and licensee survey at Essex (Filing No. 33-20 at 1). This process included an audit involving a resident interview component, which itself included asking residents whether they had been abused at Essex. Id. During these interviews, three residents made four abuse allegations against Reagan-who had previously never been disciplined by Chosen Healthcare for any policy violation (Filing No. 36-7 at 2). These abuse allegations resulted in his immediate suspension and an investigation into the accusations (Filing No. 33-20 at 2). Brannan noted in an email that "[t]he allegations being made to surveyors are from smokers who have had their privileges reduced," and "the smokers are out to get [Reagan] because they don't like him." (Filing No. 36-6 at 1; see also Filing No. 36-7 at 2 ("Each resident that filed an allegation of abuse against me did not like me due to enforcing Chosen[ Healthcare]'s smoking policy and/or some other reason.").)

Specifically, one complaint indicated that Reagan told a resident "I could do something to you that you would never forget." (Filing No. 33-6 at 1, 4.) Another complaint from this resident expressed that Reagan "scares" the resident (Filing No. 33-8 at 1). This resident-a smoker who had called Reagan a "prick" and a "Brutus transvestite" for administering the tobacco rules (Filing No. 36-1 at 11)-suffers from schizophrenia and bipolar disease (Filing No. 36-5 at 1). Reagan believed that this resident "doesn't like any males." (Filing No. 36-1 at 11.)

A different resident complained that Reagan had been "throwing [the resident] around." (Filing No. 33-7 at 1.) This resident, also a smoker ostensibly unhappy with Reagan's enforcement of tobacco regulations (Filing No. 36-1 at 12; Filing No. 36-6 at 1), suffers from Parkinson's disease and dementia (Filing No. 36-8 at 1). When this incident was reported to Licensed Practical Nurse Teresa Cain ("LPN Cain"), a Board surveyor saw LPN Cain "roll her eyes," noting that this resident frequently made "false claims" against workers. Id. Because she "knew" these allegations were false, and she found no marks on the resident, LPN Cain indicated that she "would not report [the] accusation." Id. Later, though Thomas indicated that she would need to "re-educate" LPN Cain because all allegations of abuse should be reported, LPN Cain still received a score of 28 out of 30 points and a 3% pay raise following her next annual review. Id.; Filing No. 36-21 at 1.

Finally, another resident's complaint specified that Reagan "came into [a resident's] room a few weeks ago and insisted that the door stay open. He was also rude to her." (Filing No. 33-9 at 1.) But according to Reagan, this resident, another agitated smoker (see Filing No. 36-6 at 1), also did not like him because he kept "waking her up" at mealtimes (Filing No. 36-1 at 10). Thomas, for her part, shared with Board surveyors that she had spoken with Reagan "a couple of times in the past for talking in a loud voice to residents." (Filing No. 36-3 at 5.)

As part of its investigation, Chosen Healthcare interviewed both Reagan (who consistently denied the allegations) and the residents accusing him of abuse (Filing No. 33-20 at 2; Filing No. 36-7 at 2). But because no other individuals witnessed the alleged events, Chosen Healthcare ascertained that it could not entirely and independently "substantiate" the four abuse allegations (Filing No. 33-20 at 2). As Reagan recognizes, because these instances of abuse were "unsubstantiated," they were essentially "just a he-said-he-said or she-said situation." (Filing No. 33-1 at 26.) According to Reagan, these false reports and situations are not rare, and CNAs are daily accused of abuse (Filing No. 36-1 at 19). Reagan acknowledges that "[i]f [residents] made those reports [against him], then they made those reports. I'm not [going to] say they didn't make those reports." (Filing No. 33-1 at 17.)

Following the investigation (which Reagan doubts actually transpired (see Filing No. 33-1 at 16)), Brannan suggested ending Reagan's employment, noting that a Board surveyor "want[ed] a decision on him" the next day (Filing No. 36-13 at 2). Leadership at Chosen Healthcare-former Regional Operations Director Randy Hornstein ("Hornstein"), Vice President of Clinical Laura Mace ("Mace"), and former Human Resources Director Wendy Schippers ("Schippers")-agreed with the recommendation and decided to terminate Reagan. (Filing No 33-11 at 1, 2). In a separate...