Rogers v. Apria Healthcare, Inc., Case No. 12-CV-2116

Teresa Rogers, Plaintiff,

v.Apria Healthcare, Inc. a/k/a Apria Healthcare Group, Inc., Defendants.

Case No. 12-CV-2116

UNITED STATES DISTRICT COURT DISTRICT OF KANSAS

Dated: July 17, 2013

MEMORANDUM & ORDER

Plaintiff Teresa Rogers filed this lawsuit against her former employer Apria Healthcare, Inc. ("Apria") asserting numerous claims of discrimination, harassment and retaliation arising out of her employment with and her separation from Apria. Plaintiff's claims are brought pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.; the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 621 et seq.; 42 U.S.C. § 1981; the Kansas Act Against Discrimination, K.S.A. § 44-1001 et seq.; and the Kansas Age Discrimination in Employment Act, K.S.A. § 44-1111 et seq. This matter is presently before the court on Apria's motion to dismiss and for summary judgment (doc. 34).¹ As explained below, the motion is granted.

I. Facts

The following facts are uncontroverted or related in the light most favorable to plaintiff as the nonmoving party. Defendant Apria Healthcare, Inc. ("Apria") provides home medical equipment such as oxygen and respiratory systems, ambulatory aids and testing supplies in coordination with its clients' insurance providers.² Apria hired plaintiff, an African-American female, as a Customer Service Specialist in its Fax Data Entry ("FDE") group in October 2009. Plaintiff was 48 years of age at the time she was hired. As a Customer Service Specialist in the FDE group, plaintiff was responsible for responding to telephone and fax inquiries and orders from referral sources and homecare patients as well as providing information on Apria's equipment, supplies and services. Her starting pay rate was $13.50 per hour. In December 2009, plaintiff began working at Apria's Overland Park, Kansas location on the Sprint Campus, which includes a large customer service center. Plaintiff maintained her pay rate and her job title throughout her employment with Apria, which ended in March 2011.

By the summer of 2010, only 4 other employees were working in the FDE group with plaintiff: Sarah Jenkins, Melody Kemper, Kelly Thompson and Peggy Dinkins. Ms. Dinkins is African-American and similarly aged as plaintiff. Mmes. Jenkins, Kemper and Thompson are Caucasian. Mmes. Jenkins and Thompson are younger than plaintiff and Ms. Kemper is older than plaintiff. The uncontroverted evidence demonstrates that Apria hired Ms.Thompson as a Customer Quality Specialist in the EDI group in February 2010.³ Apria contends that Ms. Thompson initially struggled with the job duties of that position such that Apria temporarily assigned Ms. Thompson to the FDE group in March 2010 so that she could learn Apria's customer service functions. Ms. Thompson, then, was working in the FDE group during the summer and fall of 2010 as a "temporary" assignment until she was ready to return to the EDI group.

Much of plaintiff's lawsuit concerns Apria's favorable treatment of Ms. Thompson as compared to plaintiff. After discovering Ms. Thompson's paycheck stub on the office copier, plaintiff discovered that Apria was paying Ms. Thompson approximately $16.00 per hour. Apria, at least according to plaintiff, did not enforce its attendance and leave policies with respect to Ms. Thompson's absences; permitted Ms. Thompson to consistently fail to achieve her productivity goals without consequence; and allowed Ms. Thompson to work a more favorable shift assignment. Plaintiff also contends that she received less formal training than Ms. Thompson and that she and Ms. Dinkins, as the only African-American employees in the FDE group, were required to perform additional duties that other employees were not required to perform. During this timeframe, plaintiff filed the first of several charges of discrimination with the EEOC and the Kansas Human Rights Commission.

In mid-November 2010, Apria announced that the functions of the FDE group would be sent off-shore to a third-party vendor in India. In light of the decision to outsource the FDE group, plaintiff's job, as well as the jobs of all other employees in the FDE group, were scheduled for elimination. Apria's stated goal, however, was to ensure that the FDE employeesobtain other jobs within the organization and, along those lines, it encouraged FDE employees to apply for open positions in other departments at the Sprint Campus location. Over the next several months, plaintiff and the other FDE employees worked temporarily in other departments while seeking new permanent positions. Plaintiff performed work in the Suspended Billing group during this time frame, while continuing to answer phones in the Customer Service area.

After plaintiff's FDE position was outsourced, plaintiff applied for 14 positions within Apria. While she did not receive interviews or offers for any of the positions for which she specifically applied, she was asked to interview for a Customer Quality Specialist position in January 2011 and she received a follow-up interview in mid-February 2011. Apria offered her that position on February 16, 2011, along with a wage increase to $14.98 per hour. Dissatisfied with the pay rate, the assigned schedule of 10:00am to 7:00pm, and the fact that the position involved only "triage,"⁴ plaintiff declined the offer and submitted her resignation on February 18, 2011. Apria permitted her to continue her employment until March 25, 2011 in the event that plaintiff obtained an offer from any of the applications that remained pending. Plaintiff did not obtain another position by March 25, 2011 and her employment ended on that date.

Additional facts will be provided as they relate to the specific arguments raised by the parties in their submissions.

II. Summary Judgment Standard

Summary judgment is appropriate "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). In applying this standard, the court views the evidence and makes inferences in the light most favorable to the non-movant. Kerber v. Qwest Group Life Ins. Plan, 647 F.3d 950, 959 (10th Cir. 2011). A dispute is genuine if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party" on the issue. Id. (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). Although the court views the evidence and draws reasonable inferences therefrom in the light most favorable to the nonmoving party, the "nonmoving party must present more than a scintilla of evidence in favor of his position." Id. (quoting Ford v. Pryor, 552 F.3d 1174, 1177-78 (10th Cir. 2008)).

III. Exhaustion of Remedies

As a threshold matter, Apria moves to dismiss certain claims as a result of plaintiff's alleged failure to exhaust her administrative remedies. Specifically, Apria contends that plaintiff failed to exhaust her administrative remedies with respect to any claim for harassment; any claim based on an alleged increase in workplace monitoring; any claim based on Apria's failure to permit plaintiff to rescind her resignation; any claim based on Apria's failure to rehire plaintiff following her resignation; and any claims based on the KAAD or the KADEA. In response, plaintiff concedes that she did not adequately exhaust her remedies with respect to any claim of harassment. The court, then, dismisses these claims for lack of subject matter jurisdiction. Shikles v. Sprint/United Management Co., 426 F.3d 1304, 1318 (10th Cir. 2005). Plaintiff urges that she has exhausted the other claims challenged by Apria.

Under both Title VII and the ADEA, a plaintiff must exhaust his or her administrative remedies before filing suit. Id. at 1317. Generally, a plaintiff must file a charge of discrimination with respect to each discrete instance of discrimination or retaliation. Apsley v. Boeing Co., 691 F.3d 1184, 1210 (10th Cir. 2012). In determining whether a plaintiff has exhausted administrative remedies with respect to a specific claim, the court's inquiry is limited to the "scope of the administrative investigation that can reasonably be expected to follow from the discriminatory acts alleged in the administrative charge. In other words, the charge must contain facts concerning the discrimination and retaliatory actions underlying each claim." Jones v. UPS, Inc., 502 F.3d 1176, 1186 (10th Cir. 2007).

In the administrative phase of this case, plaintiff made six separate filings concerning her claims. She filed two separate charges with the EEOC, dated September 2, 2010 and December 10, 2010, and an amended charge with the EEOC, dated March 23, 2011. She also filed two separate charges plus an amended charge with the Kansas Human Rights Commission focused solely on her KAAD and KADEA claims. Those charges were filed on October 1, 2010 and January 10, 2011 and the amendment was filed on September 2, 2011. The court, then, looks to these six filings in analyzing Apria's exhaustion argument.

A. Increase in Workplace Monitoring

Plaintiff concedes that none of her six filings "specifically state that there was increased workplace monitoring." She contends, however, that such a claim is "reasonably related" to her claims that she was denied transfers and promotions because those denials were allegedly justified by scrutinizing her work activity through increased monitoring. This argument isrejected and the claim clearly was not raised at the agency level. The "reasonably related" exception to administrative exhaustion is all but defunct now, but even at its height did not apply to acts or claims occurring prior to the filing of the charge of discrimination. See Martinez v. Potter, 347 F.3d 1208, 1210 (10th Cir. 2003) (citing National R.R. Passenger Corp. v. Morgan, 536 U.S. 101 (2002) (each discrete claim must be the subject of a charge)); Welsh v. City of Shawnee, 1999 WL 345597, at *3 (10th Cir. June 1, 1999) (claims falling within the...