UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF FLORIDA TALLAHASSEE DIVISION. v. 4:15cv456-WS/CAS

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1 Case 4:15-cv WS-CAS Document 34 Filed 01/03/17 Page 1 of 10 UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF FLORIDA TALLAHASSEE DIVISION Page 1 of 10 PATRICE P. CHOICE, Plaintiff, v. 4:15cv456-WS/CAS RIVER CHASE CARE CENTER, d/b/a NF RIVER CHASE, LLC, Defendant. ORDER GRANTING DEFENDANT S MOTION FOR SUMMARY JUDGMENT Plaintiff Patrice P. Choice sues her former employer, River Chase Care Center ( River Chase ), alleging that her employment was terminated based on River Chase s perception of Choice as disabled. She seeks relief under the Americans with Disability Act ( ADA ). Before the court at this time is River Chase s motion for summary judgment (doc. 27). Choice has responded (doc. 31) in opposition to the motion, and River Chase has filed a reply (doc. 32). The parties have been advised that River Chase s motion would be taken under advisement as of a date certain.

2 Case 4:15-cv WS-CAS Document 34 Filed 01/03/17 Page 2 of 10 Page 2 of 10 I. In support of its motion for summary judgment, River Chase has submitted evidence including deposition excerpts, an affidavit, and other documents that reveal the following: River Chase is a skilled nursing and rehabilitation facility in Quincy, Florida. Choice began her employment at River Chase in 2006 as a Licensed Practical Nurse ( LPN ). A co-worker, Nicole Thomas, was already employed at River Chase at that time. Choice and Thomas had a good working relationship initially. That relationship deteriorated in 2012, however, when Thomas learned that Choice was dating her co-worker and now-husband, Terry Choice, a man with whom Thomas had previously been sexually involved. By letter dated April 28, 2013, sent to River Chase Administrator Linda Blackshear and Director of Nursing Damonica Dubose, Choice complained that she felt threatened by Thomas. Choice explained in her letter that Thomas had confronted her in September 2012 about her relationship with Terry Choice. Since that time, Thomas had badgered Choice, picked on her, and most recently had barricaded a door, temporarily preventing Choice from leaving the medication room. Blackshear and Dubose thereafter met with Thomas and Choice regarding

3 Case 4:15-cv WS-CAS Document 34 Filed 01/03/17 Page 3 of 10 Page 3 of 10 the tension between the two nurses. According to Blackshear, both nurses were advised at the meeting that their personal disputes were causing problems within the workplace and needed to stop, that disciplinary action could follow if they did not resolve their issues. When Thomas became angry, she was told to leave the meeting and to stay away from the end of the building where Choice worked. Contact between Choice and Thomas was thereafter limited, allowing Choice to work for the next fourteen months without any significant Thomas-related incident. 1 On June 16, 2014, Thomas and Choice had a verbal confrontation at the nurse s station. Another nurse who witnessed the confrontation allegedly reported the incident to a supervisor, explaining that Thomas was at the nurse s station being messy and childish. Choice did not at that time report the incident herself. Several days later, on June 20, 2014, as Thomas and Choice were passing each other in a hallway, Thomas forcefully bumped Choice s arm with her shoulder. Choice described it as a hard hit. Choice reported this incident the day it happened a Friday by writing a letter explaining her version of the events leading to the bump. She included in her letter a description of the June 16 1 Unbeknownst to River Chase administrators, Choice filed a Petition for Injunction for Protection Against Repeat Violence in the Gadsden Circuit Court on April 29, 2013, seeking protection from Thomas.

4 Case 4:15-cv WS-CAS Document 34 Filed 01/03/17 Page 4 of 10 Page 4 of 10 confrontation at the nurse s station. Blackshear and Dubose received copies of the letter. The following Monday, June 23rd, Thomas was suspended. Choice did not seek medical attention or report any injury in the days immediately after the bumping incident. Indeed, she worked her normal hours for several days after the incident, in pain but not knowing that it would fall under workers comp. Choice Dep., p On or about June 26, 2014, after working hours, Choice first sought medical attention at Capital Regional Medical Center s emergency room. On June 27, 2014, a week after the incident and probably the day after her visit to the emergency room, again after working hours, Choice saw the doctor who is now her family practitioner. The doctor prescribed trazodone, an antidepressant, which Choice took for a brief time, perhaps a month or two. Although x-rays of her arm showed no breaks or fractures, the doctor advised Choice to take a week off work due to the injury. Choice immediately called her supervisor to report that, on her doctor s advice, she would be out of work for a week. On June 30, 2014, Choice reported her arm injury to Angela Martin, a medical records employee, who advised Choice that she needed to complete workers compensation paperwork. That paperwork, which Choice completed on June 30, revealed that Choice (1) rated her pain which she characterized as an

5 Case 4:15-cv WS-CAS Document 34 Filed 01/03/17 Page 5 of 10 Page 5 of 10 ache as a level 2 on a scale of 0 to10; (2) was then taking an anti-depressant but no other medications; (3) was diagnosed with acute stress reaction and posttraumatic stress disorder ( PTSD ); and (4) was cleared by her doctor to return to full duty on July 3, When deposed, Choice described her injury as a left arm contusion but denied that there was any discoloration or other visible mark of injury. Choice admitted that, prior to June 30, she did not tell Blackshear or Dubose that she was injured or that she was suffering from PTSD or other disability. Blackshear received Choice s letter describing her encounter with Thomas the day the bumping occurred. Blackshear immediately launched an investigation. On June 23, 2014, the Monday after the Friday incident, Blackshear suspended Thomas. In a written statement dated the day of her suspension, Thomas denied that she had had any physical contact with Choice on June 20. Thomas identified two individuals a resident and an employee who were present in the hallway when the bumping purportedly occurred. On June 23, both of the individuals identified by Thomas provided written statements corroborating Thomas s version of events that is, they did not see Thomas bump into Choice. An employee witness identified by Choice wrote on June 20 that she was walking with Choice in the hallway when Thomas walked past and bumped arms with Choice without any

6 Case 4:15-cv WS-CAS Document 34 Filed 01/03/17 Page 6 of 10 exchange of words. Page 6 of 10 While investigating the June 20 incident, Blackshear learned of the verbal altercation that occurred between Choice and Thomas on June 16 at the nurse s station. Choice and Thomas gave conflicting statements about what happened on June 16, each saying that the other had threatened her. The Assistant Director or Nursing and another nurse gave statements on June 24, confirming that Choice and Thomas had exchanged words at the nurse s station on June 16. Blackshear then made the decision to suspend Choice pending further investigation. An associate memorandum dated July 2, 2014, reflects that Choice was suspended for conduct that would be widely regarded as improper or inappropriate in a work group. Although the memorandum reflects a suspension date of July 2, that document also indicates that Director of Nursing Dubose notified Choice of her suspension by phone on June 25, during the week Choice was off from work. After completing her investigation on July 16, having determined that the June 16 offense was substantiated, Blackshear made the decision to discharge both Thomas and Choice. In Blackshear s words: We had previously warned Thomas and Choice that they may be subject to discipline if their personal dispute caused problems in the workplace. Both the June 16, 2014 and June 20, 2014 incidents were ultimately he-said/she-said scenarios; however, it was clear that an altercation had occurred on June 16, 2014 that caused a disturbance in the work place, and that Choice and Thomas were unable to resolve

7 Case 4:15-cv WS-CAS Document 34 Filed 01/03/17 Page 7 of 10 their personal issues, which were now spilling over into the workplace.... This decision also was made to avoid additional workplace disputes and altercations between the two and to eliminate the risk of continued escalation between Choice and Thomas and potential violence. Page 7 of 10 Blackshear Aff Although Blackshear was aware before Choice was discharged that Choice had delivered a doctor s note to take approximately one week off from work, id. 11, Blackshear understood that Choice would be able to return to full-duty work on July 3, Blackshear asserted: Prior to making this [discharge] decision, I was not aware that Choice claimed to be disabled, and I did not perceive her as having any impairment or disability. Id. When deposed, Choice admitted that she suffered no condition that disabled her in any way from being able to work or walk [or] anything like that prior to the June 2016 bumping incident. Choice Dep. p. 53. Choice also admitted that no one at River Chase, either before or after the bumping incident, made any comments to her about an actual or perceived disability. Id. p While Choice said she mentioned PTSD to two River Chase employees who dealt with workers compensation issues, Choice admitted that she never told River Chase management, including Blackshear and Dubose, that she suffered from depression or PTSD or any other disabling condition. Id. p II.

8 Case 4:15-cv WS-CAS Document 34 Filed 01/03/17 Page 8 of 10 Page 8 of 10 In her complaint, Choice asserts a lone disability-discrimination claim based on the Defendant s perception of Plaintiff as disabled. Compl. 20. She has not included in her complaint a disability claim based on an actual disability; nor has she included a claim for failure to accommodate. The ADA defines disability as: (A) a physical or mental impairment that substantially limits one or more major life activities... ; (B) a record of such an impairment; or (C) being regarded as having such an impairment. 42 U.S.C (1) (emphasis added). The definition of disability for purposes of a regarded as claim shall not apply to impairments that are transitory and minor. A transitory impairment is an impairment with an actual or expected duration of 6 months or less. Id (3)(B). Choice has fallen far short of establishing that Blackshear, the decisionmaker, perceived Choice as having a non-transitory physical or mental impairment that substantially limited one or more of Choice s major life activities. To be sure, Blackshear knew when she suspended and later fired Choice that Choice had been bumped by Thomas, causing Choice to miss work for a brief period of time. Blackshear also knew that Choice s doctor had cleared Choice to return to full duty on or by 7/3/14, just thirteen days after the bumping incident. On this record, no trier of fact could find that Blackshear had reason to know that Choice was

9 Case 4:15-cv WS-CAS Document 34 Filed 01/03/17 Page 9 of 10 Page 9 of 10 suffering from anything other than a transitory impairment with an actual or expected duration of 6 months or less. If for no other reason, Choice s disability discrimination claim fails because she has failed to establish that Blackshear perceived Choice as disabled. Choice has also fallen far short of establishing that Blackshear s articulated reason for Choice s termination was pretextual. Blackshear has explained that she fired both Choice and Thomas because the two were not keeping their personal squabbles out of the workplace. The evidence amply supports Blackshear s explanation. Choice points to the timing of Choice s suspension and termination in an attempt to show pretext. In her words, the timing of the suspension and firing could not be more outrageous, coming so soon after she filed her workers compensation claim on June 30, The court is not persuaded. Thomas was suspended for her role in the bumping incident on June 23, the Monday after the Friday incident. Although Choice s suspension was not effective until July 2 (the day before Choice was expected to return to work), Blackshear made the decision to suspend Choice on or before June 25 (the day Dubose called Choice to inform her of Blackshear s decision), at least five days before Choice filed her workers compensation claim. Both women were informed that they were being suspended pending investigation. When Blackshear s investigation was

10 Case 4:15-cv WS-CAS Document 34 Filed 01/03/17 Page 10 of 10 Page 10 of 10 complete, both women were fired. Although the suspensions and terminations occurred close in time to the filing of Choice s workers compensation claim, that closeness in time does not support a finding that Blackshear s articulated reason for her action was false or that discrimination was the real reason for Choice s suspension and firing. III. Choice having failed to establish a genuine issue of material fact as to her disability claim, it is ORDERED: 1. River Chase s motion for summary judgment (doc. 27) is GRANTED, and this case is DISMISSED WITH PREJUDICE. 2. The clerk is directed to enter judgment stating: Patrice Choice s disability discrimination claim against River Chase Care Center is DISMISSED WITH PREJUDICE. 3. The clerk shall close the case. DONE AND ORDERED this 3rd day of January, s/ William Stafford WILLIAM STAFFORD SENIOR UNITED STATES DISTRICT JUDGE

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