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Glover v. Kenwood Healthcare Center

September 30, 2010

ELLA GLOVER, PLAINTIFF,
v.
KENWOOD HEALTHCARE CENTER, INC., DEFENDANT.



The opinion of the court was delivered by: Judge Virginia M. Kendall

MEMORANDUM OPINION AND ORDER

Plaintiff Ella Glover ("Glover") filed suit against Kenwood Healthcare Center, Inc. ("Kenwood") under the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et seq. Specifically, Count I of Glover's Amended Complaint alleges that Kenwood, her former employer, subjected her to a hostile work environment and relegated her to inferior work assignments due to her age. Count II alleges that Kenwood retaliated against Glover when she complained to a supervisor about the hostile work environment. Count III alleges that Kenwood terminated Glover's employment on the basis of her age. Kenwood moves for summary judgment. For the following reasons, Kenwood's Motion for Summary Judgment is granted in part and denied in part.

STATEMENT OF FACTS*fn1

Kenwood is a long-term skilled care nursing center in Chicago, Illinois that has been in business for over thirty years. (Pl. 56.1 Resp. ¶ 1.) Glover, a resident of Illinois, was employed by Kenwood as a Physical Rehabilitation Aide ("Rehab Aide") and a Certified Nurse's Assistant ("CNA") from September 29, 1992 until September 7, 2005. (Pl. 56.1 Resp. ¶ 2, Def. 56.1 Resp. ¶ 2.) Glover was over forty years old throughout her entire employment with Kenwood. (Def. 56.1 Resp. ¶ 1.) Glover received several awards while employed at Kenwood including two in June 1997 for attendance and"professional dedication and outstanding performance." (Pl. 56.1 Resp. Ex. 9, 36.) Glover generally worked as a Rehab Aide for several floors and would fill in for other CNAs on the fourth floor when they were out sick or on vacation. (Pl. 56.1 Resp. ¶ 5.) Beginning in August 2005, Glover was assigned as a CNA on the fourth floor on a more regular basis, filling-in for someone who would be away for several weeks at a time.*fn2 (Pl. 56.1 Resp. ¶ 5.) Glover's duties as a CNA included caring for Kenwood residents' well-being and sanitary needs, continually checking each resident for personal hygiene, and cleaning the residents when necessary. (Pl. 56.1 Resp. ¶ 13.)

Barbara Boldon ("Boldon"), a Charge Nurse, was the supervisor of the fourth floor at Kenwood and qualified as a supervisor under the ADEA.*fn3 (Pl. 56.1 Resp. ¶¶ 6, 10.) Boldon's duties included supervising the fourth floor and ensuring the CNAs were doing their work. (Pl. 56.1 Resp. ¶ 6.) Boldon never hired or fired any CNAs. (Pl. 56.1 Resp. ¶ 10.) Boldon's supervisor at Kenwood was Jacqueline Thomas ("Thomas") and Thomas' supervisor was Deborah Missal ("Missal"), Kenwood's Director of Nursing. (Pl. 56.1 Resp. ¶ 12.) Missal's supervisor was the Administrator of Kenwood. (Pl. 56.1 Resp. ¶ 12.) Boldon voluntarily resigned from Kenwood in December 2005. (Pl. 56.1 Resp. ¶ 12.) Glover acknowledges that Kenwood is justified in terminating a CNA if that CNA is guilty of insubordination, inconsiderate treatment of a patient, or neglect of duty. (Pl. 56.1 Resp. ¶ 9.) She denies, however, that Kenwood engaged in a practice of dismissing its employees for such behavior. (Pl. 56.1 Resp. ¶ 9.)

I. August 2005

Glover consistently filled-in on the fourth floor as a CNA during the month of August 2005. (Pl. 56.1 Resp. ¶ 5.) She worked there on ten separate days during that month. (Pl. 56.1 Resp. Ex. 34, at 7.) Glover and Boldon both worked the 7 a.m. to 3 p.m. shift. (Def. 56.1 Ex. 3, Dep. of Barbara Boldon ("Boldon Dep.") at 32:10-15.) The fourth floor was divided into four sections, each section with a capacity of fifteen to seventeen beds.*fn4 (Def. 56.1 Resp. Ex. 34, ("Patient Census").) One CNA was assigned to each section. (Patient Census.) The residents on the fourth floor did not require as high a level of care as the ones on the second and third floors. (Pl. 56.1 Ex. A, Dep. of Ella Glover ("Glover Dep.") at 374: 3-10.) However, the residents occasionally required CNAs to lift them on and off of their beds, for which Glover sought the help of colleagues when necessary. (Glover Dep. at 374:1-24.)

The parties' description of the relationship between Glover and Boldon differs significantly. According to Glover, she only had intermittent contact with Boldon prior to this month. (Glover Dep. at 119:4-10.) Glover testified at her deposition that Boldon routinely assigned Glover the section with the heaviest and most difficult residents on the floor. (Glover Dep. at 136:1-23.) Glover testified that during the past years, Boldon occasionally made harassing statements to her about her age, even though they did not interact much. (Glover Dep. at 187:21-23.) According to Glover, these harassing statements increased in frequency after August 1, 2005, when Glover began working on the fourth floor. (Glover Dep. at 191:7.) Glover testified that Boldon would tell her: "you been here too long; you think you know it all; you should just quit; you're too old anyway; you should go and try to look for another job; you probably can't find another job." (Glover Dep. at 191:7-13.) Glover estimates that Boldon told her she was "too old" approximately twelve or fifteen times between August 1, 2005 and September 7, 2005, the date Glover was terminated. (Glover Dep. at 193:16-17.)

The parties agree that Glover complained about Boldon to her friend Alice Campbell ("Campbell"), who was almost the same age as Glover. (Def. 56.1 Resp. ¶ 5.) Campbell confirmed that she heard Boldon make a comment about old employees wanting to have things their way. (Def. 56.1 Resp. ¶ 5.) Campbell, however, did not interpret this as a statement disparaging the age of employees; but rather as a reference to employees who had been at Kenwood for a long time. (Def. 56.1 Resp. ¶ 4.) Glover testified that she also complained to her friend Allison Credit ("Credit"), a supervisor of Housekeeping, when they ate lunch together. (Glover Dep. At 210:5-15.) Glover also testified that she told Louis Randall ("Randall"), the CNA Supervisor at Kenwood, that Boldon was harassing her because of her age. (Glover Dep. at 198:5-9.) According to Glover, this conversation occurred the third week of August 2005, while Glover was in a resident's room on the fourth floor.*fn5 (Glover Dep. at 201:17-23.) Glover testified that she told Randall that Boldon made comments about Glover's age and gave her the most difficult residents to work with. (Glover Dep. at 432:9-14.) The day after Glover spoke to Randall, Boldon confronted Glover about her complaints and assigned Glover an extra resident, one that required heavy lifting. (Glover Dep. at 432:9-14, Pl. 56.1 Resp. Ex. G, Affidavit of Ella Glover ("Glover Affidavit") at ¶ 5.)Glover testified that she never formally complained to the assistant director of nursing, the director of nursing, or the Administrator of Kenwood regarding Boldon's harassing statements. (Glover Dep. at 208-09:18.)

Randall and Boldon dispute Glover's claims. Randall states in an affidavit that Glover never complained to her about Boldon or anyone else at Kenwood harassing her because of her age. (Def. 56.1 Resp. Ex. 32, at 2.) Boldon testified at her deposition that she never harassed Glover about her age, never purposely assigned her difficult residents, nor did she confront Glover over her alleged complaint to Randall. (Boldon Dep. at 74:2.) Boldon points to the CNA assignment sheets for the months of August and September 2005, which support Boldon's claim that she did not single Glover out for difficult residents, as it appears the CNAs rotated, working on different sections of the fourth floor on different days. (Pl. 56.1 Resp. Ex. O.)

II. September 1, 2005

On September 1, 2005 there were four CNAs assigned to the fourth floor. (Pl. 56.1 Resp. ¶ 85.) At the time, Glover was sixty-one years old, and two of the three other CNAs were sixty and fifty-six years old. (Pl. 56.1 Resp. ¶ 85.) One of the residents assigned to Glover's care on September 1, 2005 was Felicia Ivy ("Ivy").*fn6 (Pl. 56.1 Resp. ¶ 15.) Ivy was incontinent and unable to attend to her own sanitary and personal hygiene needs. (Pl. 56.1 Resp. ¶ 16.)

The parties dispute what happened on September 1, 2005. Glover claims that Boldon had assigned her sixteen residents to care for, while the other three CNAs only had fourteen residents each. (Glover Affidavit at ¶ 7.) Glover states that when she complained to Boldon, Boldon told her to take care of the extra residents because they were "easy" ones. (Glover Affidavit at ¶ 7.) At her deposition, Glover testified that she dropped Ivy back to her room just before 1 p.m. and then left to help two other residents get to their rooms. (Glover Dep. at 100:16-19.) Glover testified that when she left Ivy, Ivy was clean and unsoiled. (Glover Dep. at 120:8.) Glover testified that she took her lunch break at 1 p.m. (Glover Dep. at 108:23.) According to Glover, lunch breaks were not allowed to be taken on the fourth floor, so Glover walked up a flight of stairs to get her lunch, and then took the elevator down to the cafeteria. (Glover Dep. at 123:12-15, 100:21-23.)

Glover testified that the elevator stopped on the fourth floor. (Glover Dep. at 100:23.) According to Glover, Boldon got on the elevator and told Glover that Ivy "said she was soiled" and that Glover should clean her after her lunch break (Glover Dep. at 101:1-7.) Glover knew that Ivy had a history of claiming she had a bowel movement when she did not in fact have one. (Glover Dep. at 106:21-24.) Glover stated that she assumed that if Ivy was in fact soiled, Boldon, as the Charge Nurse, would have told Glover to clean her at that moment. (Glover Dep. at 107:8.) Glover further testified that she believed that the CNAs who covered the floor for her while she was on a lunch break would attend to Ivy if she was in fact soiled. (Pl. 56.1 Ex. C, Dep. of Jacklyn Thomas ("Thomas Dep.") at 73:15-23.) Moreover, Glover testified she was already on her lunch break and she thought Boldon was trying to get her written up by inducing Glover to bring her lunch on the fourth floor to clean Ivy. (Glover Dep. at 121:10-13.)

Glover testified that she told Boldon that she would check on Ivy after her hour-long lunch break, and then Glover and Boldon rode the elevator together to the cafeteria. (Glover Dep. at 107:7-9.) Glover stated that she ate lunch with her colleagues, including Boldon, and returned to the fourth floor at 2 p.m. (Glover Dep. at 102:3-4, 108:23.)

Boldon disputes these facts. At her deposition, she testified that she was called to Ivy's room by Ivy's call light before 1 p.m. (Boldon Dep. at 51:10-11.) Boldon stated that she then ran into Glover on the fourth floor around 1 p.m., and told Glover that Ivy had soiled herself and needed to be cleaned. (Boldon Dep. at 51:24.) Boldon points to the statement of a Social Services aide, Inel Pulliam ("Pulliam"), who overheard Boldon command Glover to change Ivy because Ivy had soiled herself. (Def. 56.1 Resp. Ex. 7, Pulliam Statement ("Pulliam Statement").) Boldon testified that in response to her command, Glover responded that she would change Ivy after lunch. (Boldon Dep. at 51:24.) Pulliam saw Glover go to lunch instead of attending to Ivy. (Pulliam Statement.) Boldon testified that she reported Glover's failure to clean Ivy to Thomas but did not seek out another CNA to clean Ivy. (Boldon Dep. at 52:7-20, 59:20-24.) Boldon stated that she then went to lunch just after 1 p.m., where she again ran into Glover, who had still not attended to Ivy. (Boldon Dep. at 53:1.) According to Boldon, the smell of Ivy's feces was overpowering when Boldon returned to the fourth floor from lunch. (Boldon Dep. at 90:8-10.)

Both parties agree that Glover attended to Ivy after lunch, around 2 p.m., and that Ivy was in need of cleaning and changing.

III. September 7, 2005

The parties agree that Kenwood received a fax on September 7, 2005, addressed to "Mrs. Kline" of Kenwood. (Pl. 56.1 Resp. ¶ 23.) The fax stated that its author visited Kenwood on September 1, 2005, at around 1:15 p.m. (Def. 56.1 Ex. 10, Fax to Kenwood ("Visitor Fax").) While on the fourth floor, the author smelled feces down the hallway and saw a young lady sitting in her room covered in feces. (Visitor Fax.) The young lady identified herself as Ivy and said that she had been left in that state by her nurse. (Visitor Fax.) The author concluded that the "incident happened on the 7-3 shift." (Visitor Fax.)

The parties also agree that Thomas and April Watkins ("Watkins"), Kenwood's Director of Social Services and an "abuse coordinator," immediately began an investigation into the allegations contained in the fax. (Pl. 56.1 Resp. ¶ 24.) Their Investigation Report states that the fax arrived at Kenwood at 1:13 p.m. and by 1:30 p.m. Thomas and Watkins had interviewed Ivy and her roommate Geneva Cayolle ("Cayolle"), and had completed an Investigation Report summarizing the incident. (Pl. 56.1 Resp. Ex. 59, Kenwood Investigation Report ("Investigation Report") at 4.) The Investigation Report states that Thomas and Watkins interviewed Ivy, Boldon and Glover, along with several other employees and residents of Kenwood. (Pl. 56.1 Resp. Ex. 105, at 8.) However, both Boldon and Glover claim that they were not interviewed as part of this investigation.

Kenwood terminated Glover's employment on the afternoon of September 7, 2005 based on the findings of the investigation. (Pl. 56.1 Resp. ¶ 44.) Missal, Kenwood's Director of Nursing, personally discharged Glover for insubordination, inconsiderate treatment of a patient, and neglect of duty. (Pl. 56.1 Resp. ¶ 44, Def. 56.1 Ex. 20, Dep. of Deborah Missal ("Missal Dep."), at 42:1-5.) This was the only disciplinary action taken against Glover during her nearly thirteen years of employment with Kenwood. (Def. 56.1 Resp. ¶ 3.)

IV. Post-Termination

Boldon was disciplined by Kenwood on September 11, 2005 for not being more specific when she reported Glover to her supervisor on September 1, 2005. (Def. 56.1 Resp. Ex. 23.) On September 13, 2005, six days after she was terminated from Kenwood, Glover filed an intake form with the Illinois Department of Human Rights ("IDHR"). (Pl. 56.1 Resp. Ex. 4.) Glover stated that she was discriminated against by Kenwood due to her age. (Pl. 56.1 Resp. Ex. 4.) Glover also filed a claim for unemployment benefits with the Illinois Department of Employment Security ("IDES"), where she did not list age discrimination or retaliation as a reason for being terminated from Kenwood. (Pl. 56.1 Resp. ¶ 69.)

It is undisputed that Glover timely filed a charge of discrimination with the Equal Employment Opportunity Commission ("EEOC") on October 12, 2005 alleging age discrimination and discrimination based on a physical handicap.*fn7 The EEOC terminated its processing of this charge on March 7, 2008 and gave Glover ninety days to sue under the ADEA.

The parties disagree about who replaced Glover as a CNA and Rehab Aide at Kenwood after she was terminated. Glover states she was replaced by Sheila Johnson ("Johnson"), who was thirty-two years old at the time. (Pl. 56.1 Ex. 33, at 2.) Kenwood states that Glover was replaced by Theresa Bagby ("Bagby"), who was sixty-six years old at the time. (Pl. 56.1 Resp. ¶ 86.) Kenwood states that Johnson was hired to replace Campbell, who voluntarily retired soon after Glover was terminated. (Def. 56.1 Resp. ¶ 58.) Kenwood also states that Johnson quit for personal reasons after two weeks of employment at Kenwood. (Missal Dep., at 72:17-23.) Glover states that Bagby was a long-term employee of Kenwood, hired in 1980, who did not possess the physical rehabilitation training that Glover did. (Pl. 56.1 Resp. ¶ 86.)

On November 7, 2005, Kenwood's Information Officer, Brigite Grossman, conducted a video interview with Ivy and her roommate, Cayolle, regarding the incidents on September 1, 2005. (Pl. 56.1 Resp. Ex. 58, 58A, Video Interview with Ivy and Cayolle ("Video Interview"), at 1.) In the video, the residents give inconsistent statements about whether and for how long Ivy was left soiled, with Ivy at times claiming that she was immediately tended to by Glover. (Video Interview at 6.) At one point, Cayolle stated Ivy soiled herself at noon, while Ivy stated it occurred at 1:30 p.m. (Video Interview at 6.) Glover testified that neither Ivy nor Cayolle is a credible witness. (Glover Dep. 327:5-11.) Specifically, Glover testified that she believes Cayolle suffers from Alzheimer's Disease. (Glover Dep. 327:5-11.)

Glover timely filed this suit under the ADEA on April 10, 2008, alleging Kenwood harassed, retaliated against, and terminated her because of her age.

STANDARD OF REVIEW

Summary judgment is proper when "the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). In determining whether a genuine issue of material fact exists, the Court must view the evidence and draw all reasonable inferences in favor of the party opposing the motion. See Bennington v. Caterpillar Inc., 275 F.3d 654, 658 (7th Cir. 2001); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). However, the Court will "limit its analysis of the facts on summary judgment to evidence that is properly identified and supported in the parties' [Local Rule 56.1] statement." Bordelon v. Chi. Sch. Reform Bd. Of Trs., 233 F.3d 524, 529 (7th Cir. 2000). Where a proposed statement of fact is supported by the record and not adequately rebutted, the court will accept that statement as true for purposes of summary judgment. An adequate rebuttal requires a citation to specific support in the record; an unsubstantiated denial is not adequate. See Albiero v. City of Kankakee, 246 F.3d 927, 933 (7th Cir. 2001); Drake v. Minn. Mining & Mfg. Co., 134 F.3d 878, 887 (7th Cir. 1998) ("Rule 56 demands something more specific than the bald assertion of the general truth of a particular matter[;] rather it requires affidavits that cite specific concrete facts establishing the existence of the truth of the matter asserted.").

DISCUSSION

I. ...


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