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Holmes v. Alive Hospice, Inc.

United States District Court, M.D. Tennessee, Nashville Division

February 3, 2015



KEVIN H. SHARP, District Judge.

Plaintiff's complaint before this Court alleges unlawful discrimination and retaliation on the basis of disability in violation of the American's with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq., and unlawful interference with rights and retaliation under the Family Medical Leave Act ("FMLA"), 29 U.S.C. § 2601 et seq. Defendant Alive Hospice, Inc. has filed a Motion for Summary Judgment on all claims in the Complaint. This motion, for the reasons that follow, will be granted in part and denied in part.


Defendant Alive Hospice, Inc. is a non-profit hospice care organization doing business in Nashville, Tennessee. Plaintiff is a former employee of Defendant. In April 2008, Plaintiff was hired by Defendant as a part-time, on-call ("PRN") licensed practical nurse ("LPN") on a "flex team" which provided continuous care to patients. In April 2009, Plaintiff was hired for a full-time position in the Defendant's Call Center.

In December 2009, Plaintiff's primary care physician requested her off work from December 3, 2009 to December 13, 2009 for "...nerves; a lot of stuff going on in [her] life." (Docket No. 48 ¶ 25). Then, on January 21, 2010, Plaintiff requested FMLA leave from that date to April 16, 2010 for surgery related to her C5 vertebrae pressing into her spinal cord. (Docket No. 48 ¶ 29) (Docket No. 51 ¶ 20). Although the start date of Plaintiff's FMLA leave is in dispute, this Court, in an effort to construe all facts in favor of the non-moving Plaintiff, will assume for purposes of summary judgment that Plaintiff's twelve-week FMLA leave started on January 21, 2010 (as alleged by Plaintiff). (Docket No. 51 ¶ 21).

Plaintiff anticipated being released from her doctor's care on April 15, 2010, the date of Plaintiff's post-surgery follow-up appointment; however, according to Plaintiff, the vertebrae in her neck were not fusing properly, and her doctor recommended that she remain off of work for an additional four weeks. (Docket No. 51 ¶ 23-24). Accordingly, on April 15, 2010, Plaintiff brought Defendant a doctor's note further excusing her from work until May 17, 2010, at which time she would be reevaluated. (Docket No. 48 ¶ 33). Defendant agreed to provide Plaintiff with additional leave through May 3, 2010, and Plaintiff signed a request for leave form that described her leave ending on that date. (Docket No. 51 ¶ 27). Around May 4, 2010, when Plaintiff did not return to work, Defendant changed Plaintiff's status from a full-time employee to PRN status. (Docket No. 51 ¶ 37) (Docket No. 48 ¶ 37).

On May 16, 2010, Plaintiff's doctor extended her medical leave a final time through May 26, 2010 for reasons that are not explained on the medical release. (Docket No. 51 ¶ 39) (Docket No. 51 ¶ 40). When Plaintiff was finally released to work, she notified Defendant of her availability. (Docket No. 51 ¶ 42). Defendant's representative, Edith Scott, told Plaintiff that she would contact Plaintiff's supervisor, Kathy Owens, to let her know Plaintiff was available to work. (Docket No. 51 ¶ 42). Scott also told Plaintiff not to contact Owens. Id . When Plaintiff did not hear from Owens, Plaintiff called Owens to inquire about available shifts. (Docket No. 51 ¶ 43). Owens told Plaintiff that she did not have any available work for Plaintiff because she needed registered nurses ("RN's"), not LPN's to cover shifts. (Docket No. 48 ¶ 48). However, when Plaintiff contacted the Call Center on another occasion to inquire about available shifts, another LPN, Cynthia Mayberry, told Plaintiff that there were open shifts with LPN availability. (Docket No. 51 ¶ 44). Plaintiff was not scheduled for any shifts, and on July 23, 2010, Defendant terminated Plaintiff pursuant to Defendant's policy that a PRN who did not work two shifts in 30 days was subject to termination. (Docket No. 48 ¶ 51).

In June 2010, Defendant had an opening for the position of nurse authorization coordinator, and Plaintiff applied. (Docket No. 51 ¶ 60). However, she was not qualified for the position because she did not have insurance experience in billing, authorization, and eligibility, and the position was filled by someone else. (Docket No. 48 ¶ 73, 76).

On November 3, 2010, Plaintiff filed an EEOC charge alleging discrimination between April 16, 2010 and July 1, 2010 due to her disability and use of FMLA leave. The EEOC charge alleged that Defendant had significantly reduced Plaintiff's hours due to her disability and upon her return from FMLA leave, and that Plaintiff had been denied work even though positions were available. (Docket No. 48 ¶ 81). On January 6, 2011, Plaintiff filed a second EEOC charge alleging that she was terminated from her employment and denied the position of authorization nurse coordinator due to her disability and in retaliation for filing her initial EEOC charge. (Docket No. 48 ¶ 82).

Plaintiff's complaint before this Court alleges unlawful discrimination based on her disability in violation of the American's with Disability Act, and unlawful retaliation under the ADA as a result of a complaint Plaintiff made to Defendant's representative, her request for medical leave, and her EEOC discrimination complaints. Plaintiff also claims unlawful interference with her FMLA rights, failure to be reinstated after exercising her FMLA rights, and retaliation under the FMLA based on her demotion, termination and Defendant's failure to hire her for the position of authorization nurse coordinator.


A party may obtain summary judgment if the evidence establishes there are no genuine issues of material fact for trial and the moving party is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(c); Covington v. Knox County School Sys., 205 F.3d 912, 914 (6th Cir. 2000). A genuine issue exists "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). In ruling on a motion for summary judgment, the Court must construe the evidence in the light most favorable to the nonmoving party, drawing all justifiable inferences in his or her favor. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, (1986). However, the nonmoving party must rely on more than "[c]onclusory assertions, supported only by Plaintiff's own opinions." Arendale v. City of Memphis, 519 F.3d 587, 605 (6th Cir. 2008). Rather, Plaintiffs must "set out specific facts showing a genuine issue for trial." Harvey v. Campbell County, Tenn., 453 Fed.Appx. 557, 561 (6th Cir. 2011).

a. Exhaustion of Administrative Remedies for ADA Accommodation Claim

As an initial matter, Defendant argues that the Court's jurisdiction related to her ADA claims must be limited to the scope of her EEOC charges, which only encompass Defendant's acts in demoting and terminating Plaintiff and in not hiring her for the position of authorization nurse coordinator. From this argument, the Court infers that Defendant's position is that ...

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