Opinion
Cause No. IP00-0681-C-T/G
May 31, 2001
ENTRY ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
Though this Entry is a matter of public record and is being made available to the public on the court's web site, it is not intended for commercial publication either electronically or in paper form. The reason for this caveat is to avoid adding to the research burden faced by litigants and courts. Under the law of the case doctrine, the ruling or rulings in this Entry will govern the case presently before this court. See, e.g., Tr. of Pension, Welfare, Vacation Fringe Benefit Funds of IBEW Local 701 v. Pyramid Elec., 223 F.3d 459, 468 n. 4 (7th Cir. 2000); Avitia v. Metro. Club of Chicago, Inc., 49 F.3d 1219, 1227 (7th Cir. 1995). However, a district judge's decision has no precedential authority and, therefore, is not binding on other courts, on other judges in this district, or even on other cases before the same judge. See, e.g., Howard v. Wal-Mart Stores, Inc., 160 F.3d 358, 359 (7th Cir. 1998) ("a district court's decision does not have precedential authority"); Malabarba v. Chicago Tribune Co., 149 F.3d 690, 697 (7th Cir. 1998) ("district court opinions are of little or no authoritative value"); United States v. Articles of Drug Consisting of 203 Paper Bags, 818 F.2d 569, 571 (7th Cir. 1987) ("A single district court decision . . . has little precedential effect. It is not binding on the circuit, or even on other district judges in the same district."). Consequently, though this Entry correctly disposes of the legal issues addressed, this court does not consider the discussion to be sufficiently novel or instructive to justify commercial publication of the Entry or the subsequent citation of it in other proceedings.
Plaintiff, Anthony W. Jones, sued Defendant, Rehabilitation Hospital of Indiana ("RHI"), alleging that RHI violated the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101, et seq., because RHI suspended and terminated Mr. Jones due to his disability. Mr. Jones also asserts a claim for intentional infliction of emotional distress under Indiana law. This case is currently before the court on RHI's motion for summary judgment.
Mr. Jones complaint also asserted a claim under 42 U.S.C. § 1981, however, by agreement of the parties that claim was removed from this cause of action.
As an initial matter, the court notes that Mr. Jones has elected not to file a response brief to RHI's motion for summary judgment. The case docket sheet reflects that no response brief was filed, and RHI, in its reply brief, represented to the court that Mr. Jones' failure to file a response brief was not inadvertent. RHI writes, "Plaintiff's counsel provided Defendant's counsel with a handwritten note accompanying Plaintiff's Response to Statement of Material Facts and Statement of Additional Material Facts which stated: `I am not able to complete the brief, so we go without it.'" (Def.'s Br. in Reply at 1.)
In response to RHI's motion, Mr. Jones has filed only one affidavit, that of his counsel in this case; a response to RHI's statement of material facts, disputing three of RHI's one hundred seventy nine material facts; and eight additional material facts.
Mr. Jones' counsel's decision not to file a response brief is troubling to the court, particularly since counsel had twice been granted an enlargement of time to file a response to RHI's motion. However, the court does not require Plaintiff's counsel to file a response brief to a summary judgment motion, and so as does Mr. Jones, the court proceeds without it.
FACTS
The facts in this case are nearly entirely undisputed. As mentioned above, Mr. Jones disputes only three of RHI's material facts. He does so because he claims that these three facts are distorted out of context, not that they are actually false. In any event, the court has not relied on those three facts in deciding this case, as they are not material, nor are they outcome determinative.
Mr. Jones was employed at RHI as a Rehab Nursing Assistant from 1995 until he was terminated on December 1, 1999. The stated reason for Mr. Jones' termination was verbal abuse of a patient in violation of RHI's rules and regulations.
On the morning of November 23, 1999, a patient reported to Yvonne Smith, Senior Respiratory Therapist, that at approximately 4:00 a.m., a black male nurse said words to the effect, "Sit your ass back down or I will slap you." The next day, Ms. Smith reported the complaint to Paula Spahr, Chief Nursing Officer. Ms. Spahr immediately proceeded to investigate the patient's complaint. Specifically, she met with the patient and confirmed the substance of Ms. Smith's report. During her visit with the patient, Ms. Spahr noted that the patient was fearful that the black male nurse would "beat him up during the night." Ms. Spahr asked the patient for a description of the staff member, and the patient described him as a slender, black male about the patient's height. Following this meeting, Ms. Spahr checked the staffing schedule for the night of the incident and determined that Mr. Jones was the only black male staff member on duty that night.
During the course of her investigation, Ms. Spahr also interviewed Leslie Kurtz and Helen Summerville, employees on duty during the night of the alleged incident. Ms. Spahr took notes of these interviews. Those notes state that Ms. Kurtz and Ms. Summerville had not heard anything unusual or inappropriate said to any patient during their shift.
Later that day, Ms. Spahr confronted Mr. Jones with the patient's allegation. Mr. Jones denied having threatened or cursed any patient at RHI during the early morning of November 23. Ms. Spahr decided to suspend Mr. Jones without pay pending further investigation and presented him with a formal notice of suspension.
Ms. Spahr then reviewed the contents of Mr. Jones' personnel and department files. Such files reflected a pattern of confrontational behavior with patients and co-workers for which Mr. Jones had been counseled and disciplined on many occasions, including suspensions and final written warnings for abusive behavior.
Based upon the information learned during her investigation, Ms. Spahr concluded that the patient was more likely telling the truth and that Mr. Jones had engaged in the reported conduct. Ms. Spahr then decided to terminate Mr. Jones. On December 1, 1999, Ms. Spahr informed Mr. Jones that he was being terminated for verbally abusing a patient, an act contrary to RHI's rules and regulations.
At the time she made the termination decision, Ms. Spahr was not aware that Mr. Jones claimed to be HIV-positive. Mr. Jones had not told anyone at RHI, including Ms. Spahr, of his HIV status until at least two days after he was suspended. Even then, the only person to whom he mentioned his HIV status was Pam Kramer, his supervisor. Furthermore, in conducting her investigation, Ms. Spahr never reviewed any of Mr. Jones' medical or insurance files or related information, nor did she consider Mr. Jones' actual or perceived physical, mental or medical conditions as a factor in making her decision. In fact, Ms. Spahr did not have access to Mr. Jones medical files or records, and they were kept separately from his personnel and departmental files.
During his employment at RHI, Mr. Jones also suffered from cancer. During 1999, Mr. Jones took a medical leave of absence which lasted several months to treat the disease. Sometime during October 1999, after receiving a written statement from his doctor that he could return to work, he returned to work. Currently, Mr. Jones is in total remission from cancer.
DISCUSSION
Summary Judgment Standard
Summary judgment is appropriate only when there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. See, e.g., Hedberg v. Ind. Bell Tel. Co., 47 F.3d 928, 931 (7th Cir. 1995) (citations omitted); Fed.R.Civ.P. 56(c). The evidence must be considered in light most favorable to the non-moving party, and all doubts regarding the existence of material facts are to be resolved in favor of the nonmovant. See Ransom v. CSC Consulting, Inc., 217 F.3d 467, 468 (7th Cir. 2000); Doe v. R.R. Donnelley Sons Co., 42 F.3d 439, 443 (7th Cir. 1994). It is not the role of the court to weigh the evidence or judge the credibility of witnesses in deciding a summary judgment motion. See, e.g., Miller v. Smith, 220 F.3d 491, 495 (7th Cir. 2000). Also, "[a]s this is an employment discrimination case, [the court] . . . take[s] care not to resolve any genuine disputes that have been properly established as to the employer's intent and credibility." Green v. Nat'l Steel Corp., 197 F.3d 894, 897 (7th Cir. 1999) (quotation omitted).
The party opposing summary judgment "must come forward with evidence of a genuine factual dispute." Hedberg, 47 F.3d at 931 (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986)). "To defeat a motion for summary judgment, the nonmoving party cannot rest on the mere allegations or denials contained in his pleadings, but must present sufficient evidence to show the existence of each element of its case on which it will bear the burden at trial." Filipovic v. K R Express Sys., Inc., 176 F.3d 390, 395 (7th Cir. 1999) (quotation omitted).
ADA Claim
The ADA makes it unlawful for a covered employer to "discriminate against a qualified individual with a disability because of the disability of such individual in regard to . . . [the] terms, conditions and privileges of employment." 42 U.S.C. § 12112(a). "Disability" under the ADA means "with respect to an individual-(A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual; (B) a record of such an impairment; or (C) being regarded as having such an impairment." 42 U.S.C. § 12102. Mr. Jones' disability is HIV. Although Mr. Jones states that his cancer is a physical impairment, he does not allege that it is a disability under the ADA. ( See Pl.'s Br. in Opp'n to Def.'s Mot. to Dismiss at 2-3, filed Oct. 24, 2000.) Specifically, Mr. Jones, as far as this court can deduce, has never alleged that his cancer substantially limits a major life activity.
As noted above, Mr. Jones' cancer is in complete remission.
A plaintiff alleging disability discrimination may prove his case with either direct evidence of discrimination, or indirectly by employing the McDonnell Douglas Corp. v. Green, 411 U.S. 792, 804 (1973), burden shifting approach. See, e.g., Tyler v. Ispat Inland, Inc., 245 F.3d 969, 972 (7th Cir. 2001). Mr. Jones has come forward with no direct evidence whatsoever, and therefore is forced to proceed under the burden shifting approach.
Under the McDonnell Douglas burden shifting approach, a plaintiff first bears the burden of establishing a prima facie case of discrimination. See id. (citation omiited). To make out a prima facie case, a plaintiff must show the following: "(1) that he is a `qualified individual with a disability,' (2) that his work performance met [his employer's] legitimate expectations, (3) that he suffered an adverse employment action, and (4) that his disability was the motivation for the adverse employment action." Id. (citation omitted). If the plaintiff establishes a prima facie case, the burden of production then shifts to the defendant employer to articulate a legitimate, non-discriminatory reason for the adverse employment action. See id. "Finally, the burden shifts back to the plaintiff to prove that the employer's articulated reason for the employment action was a pretext for discrimination and that the decision was in fact motivated by an unlawful factor." Id. "Although the burden of production rests on the employer for the second stage of the McDonnell Douglas inquiry, `[t]he ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff.'" Id. (quoting Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981)).
Here, Mr. Jones fails to establish a prime facie case of discrimination. Specifically, Mr. Jones has failed to establish that his HIV-positive status was the motivation for his suspension and/or termination. There is no evidence, and Mr. Jones does not dispute, that anyone other than Ms. Spahr made the suspension or termination decisions. Furthermore, there is no evidence, and again Mr. Jones does not dispute, that Ms. Spahr was aware of Mr. Jones' HIV status at the time either of those decisions was made. Because Ms. Spahr was not aware of Mr. Jones' disability at the time she took adverse employment action against him, Ms. Spahr's decisions could not possibly have been motivated by Mr. Jones' disability. See, e.g., Hedberg v. Ind. Bell Tel. Co., 47 F.3d at 932 (holding that "an employer cannot be liable under the ADA for firing an employee when it indisputably had no knowledge of the disability"). Therefore, Mr. Jones has entirely failed to establish the fourth element of his prima facie case.
As the court stated above, it does not appear that Mr. Jones is alleging that his cancer is a disability as defined by the ADA. However, even if he were, and even if he established a prima facie case, his claim would still fail. Ms. Spahr has testified that she decided to suspend and ultimately terminate Mr. Jones based upon her investigation into an alleged incident(s) of patient abuse. This is, of course, a legitimate, non-discriminatory reason for the adverse employment actions Mr. Jones suffered. Therefore, the burden is on Mr. Jones to establish that this legitimate reason is pretextual. Mr. Jones has come forward with no admissible evidence which would enable him to satisfy this burden. Rather, Mr. Jones contends that the incident which caused his suspension and led to his termination did not occur. However, this is not enough to show pretext.
The only evidence Mr. Jones submits in this regard is an affidavit from his attorney, Paul A. De Prez. In the affidavit, Mr. De Prez states that he had a conversation with Leslie Kurtz, a co-employee of Mr. Jones. He goes on to testify in detail what Ms. Kurtz told him during that conversation. This evidence is of course classic hearsay and is not admissible. See, e.g., Bombard v. Fort Wayne Newspapers, Inc., 92 F.3d 560, 562 (7th Cir. 1996) ("a party may not rely upon inadmissible hearsay in an affidavit or deposition to oppose a motion for summary judgment") (citations omitted). Mr. Jones suggests no hearsay exception under which this testimony would be admissible, and it clearly does not fall into the categories of non-hearsay — prior statement by a witness or admission of a party opponent — articulated in Federal Rule of Evidence 801(d). Accordingly, the court is forbidden from considering this evidence, and RHI's motion to strike paragraphs 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15 and 19 of Mr. De Prez's affidavit is GRANTED.
In order to show pretext, Mr. Jones must demonstrate that RHI did not honestly believe the reasons it gave him for his suspension and termination. See Green v. Nat'l Steel Corp., 197 F.3d at 899 ("This court has long championed an employer's right to make its own business decisions, even if they are wrong or bad. Therefore, regardless of whether it is correct in its beliefs, if an employer acted in good faith and with an honest belief, we will not second-guess its decisions.") (citations omitted). That Mr. Jones disputes the version of the incident believed by Ms. Spahr is irrelevant; it only matters that Ms. Spahr was justified in concluding that Mr. Jones violated rules and regulations which subjected him to termination. See id. at 900 ("[I]t simply does not matter whether Green actually manipulated her records so long as National had a good faith basis to believe that she had done so.") (citation omitted) ; see also, e.g., Roberts v. Sepparators, Inc., 172 F.3d 448, 453 (7th Cir. 1999) ("Where an employer has honestly described the motivation behind its decision, that decision is not a pretext for discrimination just because the plaintiff asserts the defendant's beliefs were inaccurate.") (citation omitted). Mr. Jones has not come forward with admissible evidence challenging Ms. Spahr's honest belief that the incident on November 23 did in fact occur. Nor has Mr. Jones made any attempt to dispute that his suspension and termination were warranted by the seriousness of the incident. Mr. Jones has completely failed to show that RHI's articulated reason for its employment decisions was at all a pretext for discrimination.
There is one final matter left to address. Paragraph 25 of the Complaint states, "RHI's actions in relation to its termination of Jones and communication about his disability were so intentional and malicious or with reckless indifference as to render it liable for punitive damages under the ADA, 42 U.S.C. § 12101, et seq." (emphasis added). It is doubtful that Mr. Jones is stating an additional claim for the improper disclosure of medical information, however. If that is what he is attempting to do, and if such a claim exists under the ADA under the circumstance of this case, see 42 U.S.C. § 12112(d)(3)-(4); but see Cash v. Smith, 231 F.3d 1301, 1307 (11th Cir. 2000) (holding that ADA nondisclosure provisions do not apply when disclosure was not the result of an employer ordered medical examination but was rather the result of a voluntary disclosure initiated by the employee), Mr. Jones' claim is dismissed. Not only did Mr. Jones fail to allege such a claim in his EEOC complaint, he admits that he has no evidence whatsoever that RHI disclosed any medical information about him to any prospective employers. See Green, 197 F.3d at 898 ("This court has held that a plaintiff is barred from raising a claim in the district court that had not been raised in his or her EEOC charge unless the claim is reasonably related to one of the EEOC charges and can be expected to develop from an investigation into the charges actually raised.") (citation omitted). "[S]peculation does not meet a party's burden of producing some defense to a summary judgment motion." Hedberg, 47 F.3d at 931-32 (citations omitted).
Intentional Infliction of Emotional Distress Claim
Mr. Jones' claim for intentional infliction of emotional distress is raised under Indiana law. However, while recognizing that there exists a presumption that courts should not exercise jurisdiction over supplemental state law claims when all the federal law claims have been dismissed prior to trial, the court, in this case, will exercise its discretion and retain supplemental jurisdiction over Mr. Jones' state law claim pursuant to 28 U.S.C. § 1367(a), rather than dismiss the claim with prejudice. See Groce v. Eli Lilly Co., 193 F.3d 496, 500-02 (7th Cir. 1999) (holding that district court did not abuse its discretion by exercising supplemental jurisdiction over state law claims after the sole federal law claim was dismissed). Mr. Jones' Indiana tort claim is so obviously meritless, and Indiana case law on this tort is sufficiently clear as it would apply to this case, that it would be pointless to send this case to state court.
Under Indiana law, "one who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another" commits the tort of intentional infliction of emotional distress and "is subject to liability for such emotional distress." Cullison v. Medley, 570 N.E.2d 27, 31 (Ind. 1991) (quotation omitted); see also Bradley v. Hall, 720 N.E.2d 747, 753 (Ind.Ct.App. 1999) ("`Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community. Generally, the case is one in which the recitation of the facts to an average member of the community would arose his resentment against the actor, and lead him to exclaim, `Outrageous!'") (quoting Restatement (Second) of Torts § 46). "It is the intent to harm one emotionally that constitutes the basis for the tort of an intentional infliction of emotional distress." Cullison, 570 N.E.2d at 31.
Indiana courts have recognized that in the appropriate case, the question of whether a defendant's conduct was extreme and outrageous "may be decided as a matter of law." Bradley, 720 N.E.2d at 753 (citing Conwell v. Beatty, 667 N.E.2d 768, 775-77 (Ind.Ct.App. 1996); Gable v. Curtis, 673 N.E.2d 805, 809-11 (Ind.Ct.App. 1996)); see also Harriston v. Chicago Tribune Co., 992 F.2d 697, 703 (7th Cir. 1993) (affirming district court's dismissal of employee's intentional infliction of emotional distress claim against her employer because employer's conduct, including discriminating against her, demoting her, falsely accusing her of poor job performance, threatening her with discipline, eavesdropping on her telephone calls, having her vehicle damaged and vandalized while on company property, etcetera, did not "reach the level of extreme and outrageous conduct needed to establish a claim for intentional infliction of emotional distress"). This is such an appropriate case.
The court notes that in Harriston, the Seventh Circuit relied on Illinois law in affirming the district court's dismissal of the plaintiff's claim. However, Illinois law on the tort of intentional infliction of emotional distress is analogous to Indiana law. Under the law of either state, the tort feasor's conduct must be extreme and outrageous. See Doe v. Calumet City, 641 N.E.2d 498, 506 (Ill. 1994) ("In order to state a cause of action for intentional infliction of emotional distress, a party must allege facts which establish that: (1) the defendant's conduct was extreme and outrageous; (2) the defendant either intended that his conduct should inflict severe emotional distress, or knew that there was a high probability that his conduct would cause severe emotional distress; (3) the defendant's conduct in fact caused severe emotional distress.") (citation omitted); Pub. Fin. Corp. v. Davis, 360 N.E.2d 765, 767 (Ill. 1976) ("`Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency.'") (quoting Restatement (Second) of Torts § 46).
RHI's conduct that is the subject of this lawsuit is far from outrageous and extreme. And, there is no evidence from which any reasonable jury could conclude that RHI's actions were intended to harm Mr. Jones emotionally. Mr. Jones' claim for intentional infliction of emotional distress is frivolous. Accordingly, judgment as a matter of law is appropriate as to this claim.
CONCLUSION
For the foregoing reasons, Defendant's motion for summary judgment is GRANTED. The court declines Defendant's invitation to consider whether it is the prevailing party under 42 U.S.C. § 1988. It takes a great deal more than just winning for a defendant to be a prevailing party for the purposes of § 1988. Defendant has not convinced the court that such a determination would be worthwhile in this case. Defendant's request for attorney's fees is DENIED, but costs are awarded to Defendant. Winning here is enough for Defendant.