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Ella Glover v. Kenwood Healthcare Center

July 13, 2011

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") and defendant Kenwood Healthcare Center ("Kenwood") each move the Court to reconsider its September 30, 2010 Order ("Order") granting in part and denying in part Kenwood's motion for summary judgment. Specifically, Glover moves the Court to reconsider its grant of summary judgment to Kenwood on her claim of retaliation in Count II and Kenwood moves the Court to reconsider its denial of summary judgment on Glover's age-based termination claim in Count III. The Court allowed for supplemental briefing on these issues and, for the following reasons, grants in part both motions: the Court finds that Glover has sufficiently demonstrated retaliation under the direct method based on her termination and therefore denies summary judgment to Kenwood on Count II; the Court also finds that Glover has failed to sufficiently demonstrate that she was terminated because of her age and therefore grants Kenwood summary judgment on Count III. Accordingly, Glover may proceed to trial on Count II.

STANDARD OF REVIEW

Federal Rule of Civil Procedure 59(e) serves the limited function of allowing courts to correct manifest errors of law or fact or consider newly discovered material evidence. See Bordelon v. Chi. Sch. Reform Bd. Of Trs., 233 F.3d 524, 529 (7th Cir. 2000); see also Oto v. Metro. Life Ins. Co., 224 F.3d 601, 606 (7th Cir. 2000) (manifest error is the wholesale disregard, misapplication, or failure to recognize controlling precedent). However, Rule 59(e) "does not provide a vehicle for a party to undo its own procedural failures, and it certainly does not allow a party to introduce new evidence or advance legal arguments that could and should have been presented to the district court prior to the judgment." Moro v. Shell Oil Co., 91 F.3d 872, 876 (7th Cir. 1996). Reconsideration is only appropriate when "the Court has patently misunderstood a party or has made a decision outside the adversarial issues presented to the Court by the parties or has made an error not of reasoning but of apprehension." Bank of Waunakee v. Rochester Cheese Sales, Inc., 906 F.2d 1185, 1191 (7th Cir. 1990) (internal quotations omitted). Whether to grant a Rule 59(e) motion "is entrusted to the sound judgment of the district court." Matter of Prince, 85 F.3d 314, 324 (7th Cir. 1996).

DISCUSSION

I. Count II

Glover moves the Court to reconsider its grant of summary judgment to Kenwood on her retaliation claim alleged in Count II.*fn1

The Court previously found that Glover did not demonstrate facts sufficient to prove that she was retaliated against under either the direct or indirect methods. The Court found that additional work assignments that Glover complained of did not constitute an adverse retaliatory action. While the Court concluded that Glover's termination constituted an adverse retaliatory action, it also found that Glover was unable to demonstrate causation under the direct method or that she was treated less favorably than similarly situated employees under the indirect method.

Glover contends that Kenwood did not explicitly move for summary judgment on Count II. Glover, however, also stated in open court that there was no additional evidence that she would have presented had she known that the Court was considering a motion for summary judgment on Count II. Specifically, Glover stated at the October 18, 2010 status hearing that she was not seeking to reopen discovery; rather, Glover sought to present arguments in supplemental briefing that she did not present in her response to Kenwood's motion for summary judgment. The Court granted Glover's request to present arguments regarding Count II's retaliation claim and now grants her Motion to Reconsider with respect to her retaliation claim for termination pursuant to the direct method.

A. Adverse Employment Action

Glover re-raises the arguments made in her response briefs to Kenwood's motion for summary judgment, re-alleging that Barbara Boldon's ("Boldon") verbal harassment of Glover and her assignment of additional residents to Glover constitute an adverse retaliatory action. The Court disagrees for the reasons stated in its previous Order. Boldon's verbal comments to Glover-that Glover should take on an additional resident because she complained about age discrimination; that Glover should quit-would not prevent a reasonable employee from engaging in protected activity. Glover did not specify what actual additional impact Boldon's assignment of an additional resident had on Glover, nor did Glover identify how she was burdened by the assignment or whether she even completed it. As the Court previously noted, the reassignment of job duties is not automatically actionable. See Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 67 (2006) (snubbing, petty slights, and minor annoyances would not deter reasonable employees from engaging in protected activity). Therefore, the Court finds that Glover fails to demonstrate that Boldon's words and actions in immediate response to Glover's complaint of age discrimination constituted an adverse retaliatory action. See Oncale v. Sundowner Offshore Servs., 523 U.S. 75, 81-82 (1988). As such, Glover does not survive summary judgment on this retaliatory issue pursuant to either the direct or indirect method.

B. Suspicious Timing of Termination

Glover also argues that the suspicious timing of her termination raised a casual inference and satisfied her claim of retaliation pursuant to the direct method.

Under the direct method, Glover must demonstrate that: (1) she engaged in statutorily protected activity; (2) she suffered an adverse action; and (3) a causal connection between the two. See Casna v. City of Loves Park, 574 F.3d 420, 426 (7th Cir. 2009). The Court previously found that Glover satisfied the first and second elements but, in its prior Order, held that Glover failed ...


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