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Rim v. Laboratory Management Consultants, Inc.

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

November 12, 2019

THAO RIM, Plaintiff,



         Before the court is the Motion for Summary Judgment (Doc. No. 26) filed by defendant Laboratory Management Consultants, Inc. (“LMC”), seeking dismissal of plaintiff Thao Rim's claims of discrimination and retaliation in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., as amended by the Pregnancy Discrimination Act, 42 U.S.C. § 2000e-2(a)(1). For the reasons set forth herein, the Motion for Summary Judgment will be granted.


         Defendant LMC is a small business engaged in providing “installation, inspection, accreditation, and oversight services” for laboratories. (Compl., Doc. No. 1 ¶¶ 22, 23.) It is owned by Eddie Davidson. LMC's headquarters are in Hazard, Kentucky (“Hazard Office”), but it operates a small office, formerly a house, in Madison, Tennessee (“Nashville Office”). Davidson also owns other companies, including MD Analysis, one of LMC's clients. Davidson and LMC employees Angela Koontz (Office Manager), Lori Pigman (Assistant), Brad Howard (Technical Consultant), and John Adkins (Technical Consultant) worked primarily out of the Hazard Office.

         Rim was hired by LMC on October 16, 2017 as a Certifying Scientist to work from the Nashville Office. Only three other people besides Rim worked primarily out of the Nashville Office while Rim was there: Charles Champion, Michael Twilbeck, and, for a short period of time, Doretha Hammonds.[2] As a Certifying Scientist, Rim's job was to review data obtained from a client laboratory and to certify that the specimen analyzed, whether blood or urine, tested positive or negative for a specific drug or high or low for a specific substance. In this position, Rim was expected to produce accurate patient data and lab results.

         Rim informed LMC that she was pregnant by sending an email “somewhere probably the end of October” 2017, shortly after she was hired. (Rim Dep. 78-79.) Rim never heard anyone at LMC make negative comments about her pregnancy. (Rim Dep. 81.) Koontz, in fact, congratulated her. (Id.; see also Koontz Dep., Doc. No. 26-3, at 119.)

         The plaintiff testified that, when she was hired, Davidson told her that she would be permitted to work remotely and that she would not be required to come into the office during specific hours. (Rim Dep., Doc. No. 26-1, at 11.) She also alleges that Davidson told her that she would be traveling much of the time. (Rim Dep. 13.) According to Rim, Davidson told her she would be travelling to visit the clients she was assigned, learn their equipment and instruments, and facilitate in consulting and trouble-shooting when issues emerged. (Rim Dep. 13.) Davidson, on the other hand, testified that he did not expect Rim to travel, because she “did not have the educational requirements or experience to go out and deal with client[s] in the field.” (Davidson Dep., Doc. No. 26-2, at 153.) It is undisputed that Rim's office mates, Twilbeck and Champion, traveled a lot for work and that Rim did not. She traveled to the Hazard Office once to interview for the job and a second time “a few months after she was hired” for training on a particular instrument. (Koontz Dep., Doc. No. 26-3, at 61;[3] Rim Dep. 45.)

         LMC agrees that, during the first several months of the plaintiff's employment, all employees were permitted to work a flexible work schedule. (Doc. No. 26-3, at 68.) On January 5, 2018, Rim received an email from Angie Koontz, LMC's Office Administrator, informing her that, beginning on Monday, January 8, 2018, she would be required to be in the office from 9:30 to 3:30 daily. (Doc. No. 31-2, at 1.) The email, which was directed to Rim, did not state that Champion and Twilbeck would also be required to be in the office during specific hours. (Id.) However, while Champion and Twilbeck, like the plaintiff, were Certifying Scientists, they also had the experience and credentialing to travel to client sites and consult on methodology. (Davidson Dep., Doc. No. 26-2, at 134-38.) The plaintiff did not have the experience or credentials to serve as a consultant, and her job duties did not require travel.[4] (Davidson Dep. at 113-14.)

         Koontz testified that, as a result of receiving multiple reports from clients that work was not being completed in a timely manner and that clients were unable to get in touch with anyone in the Nashville office, LMC implemented a new policy in January 2018, requiring employees to be in the office during certain hours when they were not traveling for work. (Doc. No. 26-3, at 124, 167; Davidson Dep. 44.) As the plaintiff points out, the only email in the record announcing this new policy required the plaintiff to be in the office during certain hours. It did not apply to Twilbeck or Champion. (Doc. No. 31-2, at 1.) The email also notified Rim that she would be required to email a daily task list at the start of each day and an update at the end of the day. (Id.) According to Koontz, Twilbeck and Champion spent a substantial amount of time traveling, but they, too, were supposed to be in the office when they were not traveling. (Doc. No. 26-3, at 122.) The plaintiff has no evidence to refute this statement, but neither has LMC produced documentation supporting it.

         The plaintiff denies that she received actual training, other than on-the-job training, when she began working at LMC. She characterized the training as a process of “trial and error, ” which involved Michael Twilbeck's showing her the differences between the processes at the clinic where she had worked previously and those used at LMC. (Rim Dep. 28 (“[H]e was showing me the difference between how . . . LMC worked and the difference with the clinics that I worked prior.”).) After about a month of his explaining things to her, she felt able to do everything on her own, but he continued to help her with her results throughout her tenure at LMC. (Rim Dep. 28-29.) According to Davidson, Rim spent “months supposedly training under Michael Twilbeck and Charles Champion, ” reading data, before she was allowed to certify data on her own. (Davidson Dep. 111-13.)[5] Rim was released to certify data independently beginning in or around January 2018.[6]

         After the plaintiff was released to certify data in January up until her termination in May 2018, she repeatedly misread lab results. (Davidson Dep. at 100-01; Rim Dep. 85-137.)[7] The record is replete with evidence of the plaintiff's errors, including emails documenting at least a dozen instances in which the plaintiff's work had to be reviewed and resubmitted from January through April 2018. (Rim Dep. Exs. 4, 5, 7-16, Doc. No. 26-1, at 249-51, 253-70.) The plaintiff offers no evidence that any other employee had an error rate approaching hers.

         On April 10, 2018, shortly after Rim requested information concerning LMC's maternity leave policy, LMC implemented an employee handbook that contained various policies and procedures, including a provision for six weeks of paid maternity leave. (See LMC Employee Handbook, Rim Dep. Ex. 2, Doc. No. 26-1, at 195-247.) The plaintiff received a copy of the handbook on April 10, 2018. (Doc. No. 26-1, at 248.) Rim met with Angie Koontz and John Adkins that day to go over the handbook and for the purpose of discussing her mistakes and the importance of accuracy for patient care. (Koontz Decl., Doc. No. 26-4 ¶ 3 and attached memo., Doc. No. 26-4, at 3; see also Rim Dep. at 123-26 (acknowledging that she talked to Adkins and Koontz about the misreads during the April 10, 2018 meeting and about whether she needed additional training).)[8] The plaintiff admitted to rushing through her work and assured Koontz and Adkins that she could do the job and did not need any additional training. (Koontz Decl., Doc. No. 26-4 ¶ 3 and attached memo., Doc. No. 26-4, at 3; Rim Dep. at 125-26.)

         Rim testified that, by the time the handbook was implemented, she believed that the company was “already trying to fire [her].” (Rim Dep. 166.) When asked why, she stated: “Because of just the way I was treated, the way I was talked to.” (Id.) She talked to Twilbeck and Champion about it and repeatedly asked Twilbeck if the company was trying to replace her, particularly after she learned that the company had announced that it was looking to hire someone for her “same position.” (Id.) Twilbeck responded, “Not that I know of yet, but we will keep you updated.” (Id.)

         Following the April 10, 2018 meeting, Rim continued to make errors reading lab results. (Rim Dep. 116-19, 122-23, 133-35; Rim Dep. Ex. 15, Doc. No. 26-1, at 268-69; Koontz Dep. Ex. 13, Doc. No. 26-3, at 183.) On April 20, 2018, LMC issued plaintiff a written Progressive Discipline Warning (“written discipline”). It appears that the written discipline initially referenced errors that had been reported to Koontz on April 19 and April 20, 2018. The original form is not in the record, but when the plaintiff received an email from Koontz notifying her of the written discipline, the plaintiff responded that “the mis-reads that are being fixed, ” apparently referencing reads for LMC's client, MD Analysis, “were prior to [the] conversation on 4/10/18, ” and that the plaintiff did not perform any work for MD Analysis between April 10 and April 20, 2018. (See Doc. No. 26-1, at 276 (April 20, 2018 email from Rim to Koontz responding to email from Koontz titled “Written Warning”).) In other words, the plaintiff objected to receiving a written discipline related to events that took place before implementation of the employee handbook. Koontz responded to the plaintiff's email, stating: “You are absolutely correct for MD Analysis and I have taken that off of the warning form.” (Id. at 275 (April 24, 2018 email from Koontz to Rim).)

         The written discipline that is actually in the record pertains only to four reads the plaintiff had performed for a different client, Central States, and indicates that, upon recheck, it was confirmed that the plaintiff had “misread 3 of the [4] reads.” (Doc. No. 26-1, at 273.) The plaintiff responded to the written discipline by stating that there were actually only two misreads, out of the four, not three. (Doc. No. 26-1, at 275.) Rim claims that, after receiving the written discipline, she told Champion and Twilbeck, “I told you, they're going to find ways to write me up at least three times to fire me.” (Rim Dep. 166.)

         The plaintiff complains that she was asked to cover reads for Central States, a laboratory ordinarily assigned to Twilbeck, while Twilbeck was on vacation. At the meeting with Koontz and Adkins on April 10, she stated that she was comfortable reading lab reports and did not need additional training. (Rim Dep. 125.) It was not until she began to have more misreads and received the written discipline pertaining to misreads for Central States that she clarified to Koontz that, while she was comfortable with her own labs, she was not comfortable reading other employees' results for other clients. (Rim Dep. 125; see also Rim Dep. Ex. 19, Doc. No. 26-1, at 276 (“As for picking up Michael and Charles' labs, some may have different Methods and looks to their chromatography and I am not fully comfortable with that. I know we are required to pick up each others' labs due to traveling and vacations, but Mike and Charles are a lot better at reads than I am, and I am trying to learn as much as I can still from them.”).)

         On April 24, 2018, Michael Twilbeck counseled plaintiff about her misreads and other issues. (Koontz Dep. Ex. 13, M. Twilbeck email to Koontz, Doc. No. 26-3, at 183.) Twilbeck recommended that the plaintiff slow down even further to ensure her work was accurate, and he notified her that she should not upload any results going forward until someone had reviewed her work for accuracy. (Id.)

         On April 30, John Adkins sent an email to Rim, Twilbeck, and Champion, copied to Koontz and Davidson, stating that it was “concerning misreads and the process we need to do moving forward to . . . prevent the misreads.” (Doc. No. 26-1, at 272.) The solution from that date would be to have Twilbeck or Champion do secondary reads of all of Rim's reads before they were uploaded to the client portal. (See Id. (“Thao do not release any results until Michael or Charles have performed the secondary read and considered acceptable. We will do this until further notice. We are only trying to help eliminate as many misreads as possible.”).) Twilbeck replied, “[w]ill do, ” and Rim responded simply, “I understand.” (Doc. No. 26-1, at 271.)

         Toward the end of either March or April, 2018, [9] the plaintiff erroneously uploaded a file for one LMC client into the account for a different LMC client. (Rim Dep. at 148.) She realized her error almost immediately and went to Michael Twilbeck for advice on how to correct it. (Rim Dep. at 149.) He explained what she should do, and she believed that she had followed his instructions and corrected the error. (Rim Dep. 149-51.) She did not know differently until a few days later, when Angie Koontz called and asked her to explain what had happened. (Rim Dep. 153.)

         The mistake was brought to the attention of Eddie Davidson around May 1, 2018, when he received an angry phone call from a client informing him that patient lab results were missing. (Koontz Decl. ¶ 3 and attachment.)[10] Rim was suspended pending an investigation and was informed that this incident could ultimately lead to her termination. (Koontz Dep., Doc. No. 26-3, at 151; id. Ex. 12, Doc. No. 26-3, at 182.)[11] After the investigation concluded, LMC determined that Rim had made a critical error. It terminated her employment effective May 4, 2018. (Rim Dep. Ex. 20, Doc. No. 26-1, at 277; Koontz Dep. Ex. 15.) The written form documenting her termination explained as follows:

You uploaded a file that you had mislabeled to Paracelsus [the technology company that supported LMC's client accounts] in the Greenwood Account. You called and spoke with Paracelsus and had them to delete the upload but the upload had accession numbers that was [sic] close to the accession numbers that had previously been uploaded to Paracelsus and the results overrode those results that was currently in Paracelsus and when you had the results deleted it deleted the results that had previously been uploaded to Paracelsus and the client called Eddie [Davidson] and was very upset because the patients [sic] was at the clinic and when the provider looked for the results they were gone. This was a very dangerous mistake because it did endanger the patient's treatment.
When we called Paracelsus to confirm the mistake they did confirm that you had called and had those results deleted.

(Rim Dep. Ex. 20, Doc. No. 26-1, at 277.)

         After Rim's termination, Twilbeck received notification from an LMC client who was upset about additional misreads from a set of results the plaintiff had read prior to her termination. (Koontz Dep. Ex. 13, Doc. No. 26-3, at 183.) According to Davidson, misreads that he attributed to Rim caused the company to lose a client even before the employee handbook was implemented and before Rim was terminated. (Davidson Dep., Doc. No. 26-2, at 213-14.)

         Rim characterized her termination as retaliation. (Rim Dep. 166.) However, she concedes that she never informed anyone at the company that she believed she was being disciplined or treated differently because of her pregnancy. (Rim Dep. 164-65.) When asked, “what were they retaliating against you for, ” Rim responded “[p]retty much just a way to terminate me for making a mistake that . . . [Twilbeck] made as well.” (Rim Dep. 167.) There is no evidence, however, that the company was aware that Twilbeck, as the plaintiff claims, had made the same mistake she had made, other than by her telling Koontz either when she was suspended or when she was terminated. (Rim Dep. 165 (“Whoever called me to suspend me that day, . . . I told them [Twilbeck] did the same thing as well, because he was the one who guided me how to fix it.”); see also Koontz Dep. Ex. 14, Doc. No. 26-2, at 184 (“Informed Thao of her termination. . . . I asked her if she had any questions and she said NO. I asked her again and she said yes, she wasn't sure why she was getting fired because [Twilbeck] had told her he had done this before and he knew how to fix it.”).)

         The plaintiff includes numerous other “facts” in her Statement of Additional Material Facts. To the extent that the facts are not supported by a citation to the record, the court disregards them. Many of the other facts include a reference to the record that does not actually support it; most of the facts appear not to be material. Regardless, to the extent the plaintiff's additional facts are supported by the record and appear to have at least minimal relevance, the court summarizes them here:

         LMC's Certifying Scientists perform their work remotely by using several electronic systems, of which Paracelsus is one. The test data is uploaded to Paracelsus by Certifying Scientists, and LMC clients then download test data from Paracelsus. The laboratories and the doctors' offices LMC worked with used Liquid Chromatography Mass. Spectrometry to dilute the urine or saliva being analyzed and then pushed the substance through an instrument; this process is less expensive and faster than Solid Phase Extraction.

         While the plaintiff worked at LMC, she was primarily assigned to do work for three specific clinics: Tisdall, Greenwood, and MD Analysis. At some point in early 2018, MD Analysis, a clinic owned by Davidson, changed the solution used for dilution of its samples from methanol to acetonitrile. (Rim Dep. 30, 34, 36.) Rim claims this change caused her significant difficulties in performing the reads for MD Analysis. (Rim Dep. 31.) She appears to blame most of her errors on MD Analysis's change in procedure.

         Rim claims that Davidson or his assistant would respond promptly to emails from Twilbeck and Champion but not to her emails, and, when they did respond, they would do so through Twilbeck rather than directly to her. (Rim Dep. 56-57.) Her belief was based on conversations with Twilbeck and Champion. (Rim Dep. 57-58.) She agreed that she did not know for sure that Davidson or his assistant always responded promptly to emails from Twilbeck and Champion.

         The plaintiff claims as an example of disparate treatment an instance when the internet at the Nashville office was down, and Champion was permitted to work from home while Rim was required to report to the office and “stay there until the cable guy came and fixed it.” (Rim Dep. 59.) She claims that the cable guy never showed up, and she eventually had to go home and do her actual work from home, causing her to work more hours than the others. (Rim Dep. 62.) Rim also claims she was assigned more work at that time, because she had three clinics while Champion only had one. (Rim Dep. 60.)

         The plaintiff filed a Discrimination Complaint with the Tennessee Human Rights Commission on May 9, 2018, just days after her termination, asserting that she had been discriminated against because of her pregnancy. (Doc. No. 26-1, at 295.) The EEOC issued a Dismissal and Notice of Rights on June 26, 2018. (Doc. No. 1-3.) The plaintiff filed this lawsuit on September 24, 2018, asserting claims for discrimination and retaliation in violation of Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e et seq., as amended by the Pregnancy Discrimination Act (“PDA”), 42 U.S.C. § 2000e-2(a)(1).[12]

         The defendant filed its Motion for Summary Judgment (Doc. No. 26) on September 3, 2019, seeking dismissal of Rim's claims for discrimination and retaliation in connection with her pregnancy. The plaintiff filed a Response to Motion for Summary Judgment (Doc. No. 31), asserting that material factual disputes make summary judgment inappropriate. In its Reply (Doc. No. 34), LMC argues that the plaintiff has failed to address the deficiencies addressed in the defendant's summary judgment motion and has failed to establish the basic elements of her Title VII and PDA claims.

         II. ...

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