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McDaniel v. Kindred Healthcare

February 26, 2008

GLEN MCDANIEL, PLAINTIFF,
v.
KINDRED HEALTHCARE, D/B/A KINDRED HOSPITAL DEFENDANT.



The opinion of the court was delivered by: R. Allan Edgar United States District Judge

MEMORANDUM

Plaintiff Glen McDaniel brings this employment discrimination action against his former employer Kindred Healthcare d/b/a Kindred Hospital ("Kindred"). Plaintiff alleges that he was discriminated against on the basis of race and age in violation of Title VII, 42 U.S.C. § 2000e et seq., and the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq. ("ADEA"). He further alleges that Kindred unlawfully retaliated against him for filing a discrimination charge.

Kindred moves for summary judgment dismissal of all of Plaintiff's claims. [Court Doc. No. 26]. Plaintiff opposes the motion for summary judgment. [Court Doc. Nos. 34, 35]. Plaintiff also moves for an extension of time to respond to Kindred's motion for summary judgment. [Court Doc. No. 33]. Plaintiff's motion for an extension of time will be GRANTED. After reviewing the record in the light most favorable to the Plaintiff, the Court concludes that Kindred's motion for summary judgment will also be GRANTED.

I. Background Facts

At the time Plaintiff first filed his complaint, he was a fifty-four year old African-American male who had been employed at Kindred Hospital in Chattanooga, Tennessee until his resignation on January 14, 2005. [Court Doc. No. 1, Complaint]. Prior to his resignation, Plaintiff was employed as the Chief Operating Officer ("COO") at Kindred's Chattanooga facility. His Complaint alleges several different types of discrimination, including harassment on the basis of race, failure to promote, discrimination in compensation, as well as discriminatory conditions in general. See Complaint.

Plaintiff first began working for Kindred in 1993, and by 1997, he had become the COO for the Chattanooga facility, a hospital that Kindred designated a Level I, or one of its group of smallest hospitals with around fifty beds. Complaint; [Court Doc. No. 26-2 Affidavit of Ruth A. Lusk ("Lusk Affidavit"), ¶ 6].

A. Alleged Racial Harassment

In 1999 Plaintiff received an email containing "threatening racist content." [Court Doc. No. 26-3, Deposition of Glen McDaniel ("McDaniel Dep.") p. 104]. Plaintiff was unsure who sent the racist email. Id. However, Plaintiff recalls that two Kindred employees were fired during the same two-week period in which he received the offensive email. Id. at 105. Plaintiff agrees that one of the employee's termination notice states that she was terminated for, among other reasons, race discrimination. Id. at 106. Plaintiff further admits that the other employee whom he suspected of creating the email was also terminated from Kindred. Id. at 106-108. Plaintiff eventually reported the incident to his supervisor, who had already seen the email. Id. at 107-09. Plaintiff states that his supervisor told him he "was personally sorry" and that "[t]hey would look into it." Id. at 109.

In 2001 Plaintiff received a racist photograph in his mailbox at work. His supervisor suggested that he call the police, and he did so. In addition, Plaintiff admits that the regional director of compliance was very supportive of him during that difficult time. Id. at 110-111. Plaintiff felt that although his supervisor recommended that he report the incident to the police, he also appeared to perceive the photo as a prank or a joke. Id. Plaintiff admits that other than the two racist notes left in his mailbox in 1999 and 2001, he was not subjected to any other racially offensive comments or behavior by anyone associated with Kindred. Id. at 112; 130.

B. Failure to Promote

Plaintiff received a Bachelor of Science in medical technology. In 1984 he received a Master's Degree in clinical chemistry. McDaniel Dep., pp. 13-14. In 2004 Plaintiff received a Master's Degree in Business Administration from American Continental University in Atlanta. Id. He holds a license as a medical technologist and as a clinical lab scientist. Id. at 14-15. Prior to his tenure with Kindred, Plaintiff was the laboratory manager at Southwest Hospital in Atlanta and the laboratory supervisor of St. Thomas Hospital Laboratory in the Virgin Islands. Id. at 15.

Plaintiff began working part-time as a medical technologist in a laboratory for a company in Atlanta that Kindred later acquired. Id. Within a few months he advanced to the Education and Information Systems Manager. Id. at 15-16. In 1997 Plaintiff applied for a position in Chattanooga known as the Assistant Administrator for Clinical Operations that later became the Chief Operations Officer ("COO") position. Id. at 18. The Chief Executive Officer ("CEO") at the Chattanooga facility, Steve McGraw, hired Plaintiff for the position. In 1999 the facility changed its name to Kindred. Id. at 16.

Mr. McGraw remained Plaintiff's supervisor "for a couple of years," and then the company terminated him for cause. McDaniel Dep., p. 19. Plaintiff asserts that following Mr. McGraw's termination, he "expressed an interest" in the CEO position, but that he did "not apply formally." Id. at 20. He alleges that the regional vice president told Plaintiff on the day that Mr. McGraw was terminated that they had chosen a successor who was currently the CEO at a larger Kindred hospital, but who wanted to return to the Chattanooga area. Id. The other candidate had been with the company for a long time, and Kindred wanted to allow him to fill the position. So the regional vice president informed Plaintiff that they would not be considering him for the CEO position. Id. Lewis Ransdell replaced Mr. McGraw as CEO of the Chattanooga hospital in 2001. Lusk Aff., ¶ 8. Plaintiff admits that Mr. Ransdell had been a CEO at a larger hospital facility prior to his transfer to Chattanooga. McDaniel Dep., p. 62-63.

Sometime in 2003 Mr. Ransdell decided that he would like to terminate Plaintiff's employment with Kindred. Lusk Aff., ¶ 9. See also, [Court Doc. No. 35, Ex. 8]. Ms. Lusk initially approved the request, but asked to see more information regarding Plaintiff. Id. at ¶¶ 10-11. Ms. Lusk reviewed Plaintiff's favorable employee evaluations, and Kindred ultimately decided that it would not terminate him. Id. at ¶¶ 11-12. At the time Ms. Lusk and Mr. Ransdell were discussing Plaintiff's possible termination, Plaintiff was unaware of the discussions and their exchange of emails relating to the topic. Id. at ¶ 13.

Kindred terminated Mr. Ransdell in April of 2004 for reasons unrelated to Plaintiff. Lusk Aff., ¶ 15. Plaintiff applied for the vacant CEO position at that time. McDaniel Dep., p. 22. Plaintiff discussed the opening with company officials in charge of the hiring, although he did not have a formal interview for the position. Id. at 22-23.

Although Kindred considered Plaintiff for the newly open CEO position, it decided to hire a man named Joe Bryant instead. Lusk Aff., ¶ 16. Plaintiff admits that he does not know the details of Mr. Bryant's experience and education prior to his attainment of the CEO position at the Chattanooga hospital. McDaniel Dep., p. 64. Plaintiff speculates that Mr. Bryant, a Caucasian, younger man, was less qualified because he did not "have the history with the company," had less tenure in an executive position, and had not worked at a long-term acute care ("LTAC") hospital. Mr. Bryant's resume indicates that he has a Bachelor's Degree in Business Administration and a Master's Degree in Health Administration. He had worked for three years as a CEO of the Southwest Regional Medical Complex in Lubbock, Texas. His resume indicates that the hospital consisted of 30 beds of LTAC and 58 beds of skilled sub-acute care. The resume further lists a series of significant accomplishments in the CEO position, such as expanding medical staff, receiving numerous corporate awards, and developing an in-house staff daycare center. [Court Doc. No. 26-2, Resume of William "Joe" Bryant]. The resume also indicates prior experience as a hospital executive administrator, administrator, and assistant administrator. Ms. Ruth Lusk, then Kindred's Regional Senior Vice President for the East Region, Hospital Division, was involved in the decision-making process that led to Mr. Bryant's hiring. Lusk Aff., ¶¶ 2, 18. Ms. Lusk believed that "Mr. Bryant was extremely well qualified for the position and had substantially more experience than Mr. McDaniel." Id. at ¶ 18.

C. Alleged Discrimination in Compensation

Plaintiff also alleges that in addition to failing to receive a promotion to CEO on two different occasions, one in 2001 and one in 2004, he "was continually paid less than his peers." Complaint. When Plaintiff first received the COO position in Chattanooga he "was satisfied with the entire package. It was a promotion. It was a chance to use more of [his] skills and so on." McDaniel Dep., p. 31. Plaintiff received annual raises every year. Id. at 33. The raises varied from year to year, and Plaintiff guessed that his raises averaged about 3 percent per year. He further recalled receiving a 6 percent raise in one particular year. Id.

Plaintiff asserts that he received a letter from the President of the Hospital Division in approximately early 2003 that explained the salary ranges for different positions. McDaniel Dep., p. 35. Plaintiff asserts that he was "a little below mid-range" for his level at a hospital the size of the Chattanooga hospital after four years of experience. Id. Plaintiff discussed his perception of his salary with his supervisor at that time, Mr. Ransdell. Id. Mr. Ransdell discussed Plaintiff's salary with Ms. Lusk. Id. at p. 36. Ms. Lusk avers that Plaintiff received a "substantial raise at the end of 2003" and "consistently received annual raises." Lusk Aff., ¶ 20. She asserts that Mr. Ransdell advocated for Plaintiff to receive the 2003 raise, although Plaintiff asserts that the raise based on 2003 discussions "never materialized." Lusk Aff., ¶ 21; McDaniel Dep., p. 36. Plaintiff admits that he received a market adjustment at some point in time because he was "substantially below the range for COOs." McDaniel Dep., p. 36. Plaintiff asserts in his deposition that he complained to his superiors about his salary range for several years, but only received one 6 percent market adjustment and much smaller annual raises. Id. at pp. 34-44. Unfortunately for the court, the record does not include a summary of Plaintiff's salaries and raises or any of Plaintiff's employee pay records.

Plaintiff asserts that an employee named Keith Jones, who was the Chief Financial Officer ("CFO") of the Chattanooga hospital and who had only worked for Kindred for a couple of months longer than Plaintiff, received higher compensation than Plaintiff did. McDaniel Dep., pp. 39-43. Ms. Lusk asserts in her affidavit:

Keith Jones was not similarly situated to Mr. McDaniel, as Mr. Jones also had CFO duties for Memphis and Charleston as well as Chattanooga. Mr. Jones' compensation reflected his significantly extended responsibilities and his superior performance in that regard. Although Mr. McDaniel and Mr. Jones were both located in Chattanooga, it is not comparable between Mr. McDaniel's salary to that of Mr. Jones, as Mr. McDaniel did not have COO duties for any Kindred facilities other than Chattanooga.

Lusk Aff., ¶¶ 22-24. Plaintiff asserts that the difference in pay existed before Mr. Jones took on responsibilities at other hospitals. McDaniel Dep., p. 61.

Although Plaintiff did not have any reason to believe that Kindred was discriminating against him on the basis of his race and age at the time of the discussions surrounding his salary, he subsequently determined that the disparities had to do with his race and age. He states in his deposition:

I knew I was not being treated equitably and that's why I raised it on several occasions, but I did not conceptionalize [sic] in my mind what the reason was until subsequently. I did not think about it at the time. . . . Well, subsequently, I realized it had to do in terms of demographics of the company and so it had to do with race and age and those kind of demographics.

McDaniel Dep., p. 44.

Ms. Lusk's affidavit states that:

Each CEO and COO's salary was based on a number of factors, such as performance evaluations, experience, geographical area, market/competitive factors, and job duties. Mr. McDaniel consistently received annual raises, including a substantial raise at the end of 2003. Mr. McDaniel's own CEO, Lewis Ransdell, advocated for him to receive this raise. . . . Despite his location in a small market, Mr. McDaniel's compensation was by no means the lowest COO salary in the Kindred system.

Lusk Aff., ¶¶ 19-25. Plaintiff alleges that other COOs made more than he did. However, it is unclear from Plaintiff's deposition and from the Complaint whether the other COOs were working at comparable facilities. McDaniel Dep., p. 59, Complaint. Thus, aside from specific allegations of being paid less than Mr. Jones, Plaintiff does not identify a comparator in the COO position at a Level I hospital outside the protected classes who was making more than he was.

D. Plaintiff's Resignation and Alleged Retaliation

In August of 2004, Kindred underwent a reorganization and restructuring. Ms. Lusk describes the change in the following way:

In 2004, Kindred adopted a new organizational structure and, as a result, the COO position at all Under 50 Hospitals in the East Region, including Chattanooga, was eliminated. These changes were announced in August of 2004. The reorganization was to streamline ...


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