Schmidt v. St. Elizabeth Med. Ctr.

GRETCHEN SCHMIDT PLAINTIFF v. ST. ELIZABETH MED. CTR. DEFENDANT

CIVIL ACTION NO.: 2:18-cv-110 (WOB-CJS)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF KENTUCKY NORTHERN DIVISION AT COVINGTON

November 4, 2020

MEMORANDUM OPINION AND ORDER

This is an employment discrimination case arising from Defendant St. Elizabeth Medical Center's termination of Plaintiff Gretchen Schmidt's employment.

Plaintiff alleges she was terminated based upon her alleged disability, in violation of the Americans with Disabilities Act ("ADA"); her age, in violation of the Age Discrimination in Employment Act ("ADEA"); and both disability and age, in violation of the Kentucky Civil Rights Act ("KCRA"). Plaintiff further alleges her termination constituted retaliation in violation of the ADA and Kentucky law, and interference and retaliation under the Employee Retirement Income Security Act ("ERISA"). (Doc. 9).

This matter is now before the Court on defendant's motion for summary judgment (Doc. 32). The Court previously heard oral argument on this motion and took the matter under submission. (Doc. 49).

Having given the matter further study, the Court now issues the following Memorandum Opinion and Order.

Factual and Procedural Background

Plaintiff worked as a Registered Nurse at St. Elizabeth Hospital during two periods of time: 1988-1995 in Covington, Kentucky, and from 2005-2017 in Ft. Thomas, Kentucky.¹ (Schmidt Depo. Doc. 27 at 14-15).

At the times relevant here, plaintiff worked the "weekend option" - meaning that she worked two twelve-hour shifts each weekend but was paid for working thirty-six hours. (Id. at 16; Cornett Depo. at 27). Plaintiff worked on the floor called "Four South" which comprised medical/surgical and oncology patients. (Id. at 33-34).

A. Plaintiff's Medical Leaves

Plaintiff experienced several health issues during her employment at St. Elizabeth for which she took leave, including Family and Medical Leave Act ("FMLA") leave and non-FMLA leave. These health issues included bunions on both feet, back pain, and migraines.

Medical leave at St. Elizabeth is handled by the hospital's Medical Leave Office, which is separate from the Human Resources Department and at a different physical location. (Cornett Depo.,Doc. 52-1, at 85-88, 199). Communications to employees regarding FMLA leave were sent through an "FMLA Mailbox" email address. (See, e.g., Docs. 27-18, 27-19).

Plaintiff requested and was granted leave on numerous occasions, including June 9-July 2, 2010 (non-FMLA leave); November 4, 2013 (intermittent leave for two day a month beginning on that date); December 27, 2013-February 9, 2014 (FMLA leave); January 18-31, 2015 (non-FMLA); December 10-13, 2015 (FMLA leave); May 28-31, 2016 (FMLA); December 11-23, 2016 (non-FMLA); and February 8, 2017-May 2, 2017 (non-FMLA).

Plaintiff testified in her deposition that she never felt that anyone from St. Elizabeth "gave her a hard time" or retaliated against her for using medical leave until her termination in 2017. (Schmidt Depo. at 89-91). Plaintiff's 2017 medical leave will be discussed further below.

B. Plaintiff's Disciplinary History

Plaintiff's employment record with defendant contains numerous disciplinary issues which defendant asserts form the backdrop to events in 2017 that cumulatively led to plaintiff's termination.

1. 2009-2016

In August 2009, plaintiff was written up after a family of an elderly patient complained that plaintiff was rude to them. (Doc. 27-4). Specifically, the family reported that plaintiff said tothe family's personal care assistant, who accompanied them to the hospital: "I don't know how you work for this family, you have to either be a saint or on drugs." (Id.).

On October 9, 2009, plaintiff received a coaching session from her supervisor, Sandra McCormick ("McCormick"), based upon another family's complaint that plaintiff was rude to them. (Doc. 27-5). Plaintiff testified that she understood at that time that she needed to correct her behavior. (Schmidt Depo. at 38, 41-42).

On November 17, 2009, a doctor complained that plaintiff had called him and was "rude and aggressive" and hung up on him. (Doc. 27-6).

In early February 2010, a co-worker reported to McCormick that a patient had complained that plaintiff, who had been his nurse for two nights, was "very rude" and "short" with him and "spoke rudely" to a visitor of a patient across the hall. (Doc. 27-7).

On February 18, 2010, McCormick issued plaintiff a "Level II Counseling" for complaints regarding her rude behavior, which stated: "Gretchen, this type of behavior cannot and will not be tolerated." (Doc. 27-8). Plaintiff testified that she understood that she could face further discipline, including termination, if such behavior continued. (Schmidt Depo. at 48).

That November, a co-worker emailed McCormick to tell her that plaintiff had been "very rude" to another nurse on the shiftbecause the nurse refused to tell a family of a dying hospice patient to leave. (Doc. 27-9). The co-worker said that plaintiff slammed a clipboard on the desk, leaving the other nurse "very upset and shaky." (Id.).

In May 2011, a co-worker reported to McCormick that plaintiff yelled at an employee from the Emergency Department in front of a patient. (Doc. 27-12).

In August 2011, numerous complaints about plaintiff's rudeness towards patients led McCormick to recommend to the Nursing Director that plaintiff either be terminated or receive a Level 3 disciplinary warning with mandated counselling through the employee assistance program ("EAP"). (Doc. 27-15). Plaintiff received the Level 3 warning and was referred to the EAP to address her anger, mood swings, and "general rudeness." (Doc. 32-9; Schmidt Depo. at 80). Plaintiff testified that she was concerned she would lose her job if she continued such rude behavior. (Schmidt Depo. at 82).

On June 3, 2012, Cindy Dennis ("Dennis"), a St. Elizabeth Clinical Supervisor, emailed McCormick to report that she had been asked to speak with the wife of a patient. (Doc. 27-16). The wife told Dennis that plaintiff was "rude and unprofessional" and told the wife several times to "go home," although the wife wanted to stay because her husband had just had surgery. The wife requested that plaintiff not care for her husband again. (Id.).

In August 2013, a patient submitted a "Care Gram" - apparently a form intended to convey positive comments about staff - stating that plaintiff was "extremely rude," administered medications "forcefully enough that it hurt," and "her bedside manner stinks." (Doc. 27-17).

In July 2014, a patient reported that plaintiff was "very rude" and "did not want to do her job." (Doc. 27-20). Plaintiff testified that she knew at that time that she needed to be aware of patients' perceptions. (Schmidt Depo. at 94).

In September 2014, a patient sent a lengthy email complaint to St. Elizabeth administration titled "Crazy nurse coming into my room yelling outloud." (Doc. 27-21). The patient stated that he had tried to call his nurse aid, and that plaintiff came into his room "yelling and screaming;" that she was "totally unprofessional;" that she was "furious;" that he felt it was an assault by "this crazy raged nurse;" and that he was going to contact his lawyer. (Id.). Plaintiff's then-supervisor, Julie Maegley ("Maegley"), spoke to plaintiff about the incident, and plaintiff told Maegley she would "return to EAP to try to make improvements on this area." (Doc. 27-23 at 1).

In November 2014, Maegley met with plaintiff and a nursing assistant named Cheri regarding a conflict between them which had caused Cheri to request a transfer so she would not have to work with plaintiff. (Doc. 27-22).

On January 5, 2015, plaintiff received a Level I Counseling for "Job Performance; Attitude; and Patient Complaints." (Doc. 27-23).² This report recounts numerous complaints from staff and patients regarding plaintiff's offensive, rude, confrontational, negative, and intimidating behavior. In particular, a patient who was obese complained that plaintiff said to her: "Did you ever think of asking your doctor to cut off your hips?" (Id. at 1). And another patient who had bruised arms complained that plaintiff said to her: "I assume those aren't track marks," which the patient felt was an insinuation that she was a drug addict. The counseling warned that a failure to conform to defendant's standards for patient care could result in "more severe disciplinary action up to and including termination." (Id. at 3).

In February 2016, plaintiff received another Level I Counseling for "Job Performance: Behavior Conduct." (Doc. 27-24). Plaintiff's supervisor, Deborah Augsback ("Augsback")³ noted that a patient's daughter complained that plaintiff "did not have caring approach and [was] very short when asked questions." The patient's family expressed these concerns to another nurse, Sarah, with whomplaintiff then had a verbal altercation in front of other staff and patients. (Id. at 1). The warning recounted some of plaintiff's past discipline and stated: "Due to the lengthy history of job performance, patient dissatisfaction and behavior counseling, please know that we are taking this incident very seriously. This type of behavior and conduct will not be tolerated in the future." (Id.).

In late November 2016, Augsback reported to Brandi Cornett ("Cornett") in Human Resources that Augsback had received three patient complaints about plaintiff over the previous weekend. (Doc. 27-27). Augsback spoke to plaintiff about these complaints and prepared a written counseling, but she ultimately was unable to issue it to plaintiff because of scheduling issues. (Doc. 27-28; Augsback Depo. at 17-19).

2. 2017 - New Complaints and Plaintiff is Terminated

New disciplinary problems involving plaintiff arose in early 2017.

On January 8, 2017, Augsback was made aware that a patient was very upset about how plaintiff had treated her. (Doc. 27-32; Augsback Depo. at 20-21). The patient, who had a...