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Peterson v. University of Alabama Health Services Foundation, PC

United States District Court, N.D. Alabama, Southern Division

September 30, 2014




This case is presently pending before the court on defendant's Motion for Summary Judgment. (Doc. 22.)[1] Plaintiff Sarah M. Peterson has sued her former employer, defendant University of Alabama Health Services Foundation [hereinafter "the Foundation"], alleging that the Foundation discriminated against her on the basis of her race and that it retaliated against her for complaining about discrimination in violation of federal law. Peterson also alleges she was terminated in violation of Alabama law because she had filed a claim for worker's compensation benefits. Upon consideration of the record, the submissions of the parties, the arguments of counsel, and the relevant law, the court is of the opinion that the Foundation's Motion for Summary Judgment, (doc. 22), is due to be granted.


Pursuant to Fed.R.Civ.P. 56(a), summary judgment is appropriate "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a); Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir. 1991); see Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970). Once the moving party has met its burden, the non-moving party must go beyond the pleadings and show that there is a genuine issue of fact for trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). A dispute is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

A party asserting that a fact cannot be or is genuinely disputed must support the assertion by:
(A) citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials; or
(B) showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.

Fed. R. Civ. P. 56(c)(1); see also Clark, 929 F.2d at 608 ("it is never enough simply to state that the non-moving party cannot meet its burden at trial").

In deciding a motion for summary judgment, the court's function is not to "weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Anderson, 477 U.S. at 249. "[C]ourts are required to view the facts and draw reasonable inferences in the light most favorable to the party opposing the [summary judgment] motion.'" Scott v. Harris, 550 U.S. 372, 378 (2007)(quoting United States v. Diebold, Inc., 369 U.S. 654, 655 (1962)(per curiam)). Nevertheless, the non-moving party "need not be given the benefit of every inference but only of every reasonable inference." Graham v. State Farm Mut. Ins. Co., 193 F.3d 1274, 1282 (11th Cir. 1999)(citing Brown v. City of Clewiston, 848 F.2d 1534, 1540 n.12 (11th Cir. 1988)); see also Scott, 550 U.S. at 380 ("When opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a motion for summary judgment.").



In 1997 Peterson, African-American, began working for the Foundation as a Receptionist/Assistant at the Substance Abuse Clinic. (Doc. 24-1 at 22, 24-25; doc. 39-3 ¶ 1.) After the Substance Abuse Clinic closed, Peterson held various positions with the Foundation, before transferring to the Dermatology Clinic in January 2011 as a Patient Encounter Specialist [hereinafter "PES"]. (Doc. 24-1 at 27, 29-31, 36, 67; doc. 33 ¶ 2.) She worked primarily at the check-out desk performing clerical and customer-service responsibilities, such as documenting charges, accepting payments, verifying the patient's identity, answering the phone, and scheduling appointments. (Doc. 33 ¶¶ 2, 3.) She received an excellent evaluation in October 2011 from her then-supervisor, Kimberley Turnley, African-American. ( See doc. 27 at 2-5; doc. 25 at 100.)

On November 15, 2011, Turnley met with Peterson and her coworker, Heather Moody, white PES also assigned to the check-out desk, to discuss "teamwork" and "communications." ( See doc. 24-1 at 64; doc. 25 at 102, 104; doc. 27 at 37.) Shortly thereafter, Erika Sanso, white RN Practice Manager, replaced Turnley as Peterson's supervisor. (Doc. 24-1 at 37; doc. 25 at 100; doc. 33 ¶ 2.) The Practice Manager supervises the 34-36 employees in the Dermatology Clinic. (Doc. 25 at 22.)


On January 19, 2012, Peterson fell from her chair at work and suffered a rotator cuff injury to her left shoulder. (Doc. 24-1 at 107, 110, 112; doc. 39-3 ¶ 30.) She notified Loretta Nicholson, an employee in the medical records area, who called her supervisor, Betty Franks, and Franks sent Peterson to UAB Highlands Hospital for evaluation that day. (Doc. 24-1 at 66, 108-09.) Peterson subsequently attended doctor visits and physical therapy sessions, for which she received worker's compensation benefits and coverage. ( Id. at 113-17.) She testified, "There were times in 2012 that I had to be absent or leave early to go to doctor[s] appointments or physical therapy." (Doc. 39-3 ¶ 31.)


On January 30, 2012, Peterson emailed Towana Pardue, white Chief Nursing Officer and Sanso's supervisor. (Doc. 29 at 7.) She complained:

[W]hen I go to Erika [Sanso] about a situation she is very short and rude. I was under the impression that all employee[s were] to be treated fair[ly]. Today a situation came up with a patient that need[ed] authorization for an appointment on [January 31, 2011.] I asked [Sanso] would she call Viva and let me know whether I need[ed] to reschedule the appointment[;] she never got back to me[.] [S]o I call[ed] her and she told me... that [had] been taken care of as if I was interrupting her. I am only trying to do my job, but when you are put in a hostile environment it become[s] hard to be effective.

( Id .; see also doc. 24-1 at 65, 68-69, 73-74.) Peterson testified that Sanso had said, "Sarah, it's been taken care of, " and that she believed Sanso was "rude" based on the tone of her voice. (Doc. 24-1 at 70-71.) She also complained to Pardue that Sanso had not offered to help her that day when she was working the check-out desk alone. (Doc. 29 at 7.)

Peterson met with Pardue several days later, at which time she told Pardue that Sanso treated white employees better than African-American employees based on the fact Sanso was friendlier to white employees and she was more concerned about them.[2] ( Id. at 75, 77-79.) She also testified that Pardue had said she would talk to Sanso; however, Peterson did not know if Pardue actually had talked to Sanso. ( Id. at 77, 80; doc. 24-2 at 259.) Pardue testified that she did not talk to Sanso about Peterson's email and that she "never told anyone that Ms. Peterson complained that Ms. Sanso treated white employees better than she treated black employees." (Doc. 32 ¶¶ 5, 6.)


1. Patient Complaints

According to Sanso, she received a number of complaints about Peterson's behavior and job performance between January and May 2012. (Doc. 25 at 72-73, 79-80, 88-93, 95-96.) Sanso testified that the Dermatology Clinic rarely got negative feedback from patients, but, in the first few months of 2012, she had received two patient comment cards complaining about customer service at the check-out desk. (Doc. 33 ¶ 7.)

In January 2012 an unidentified patient rated the "black lady at checkout" as "poor" with regard to courtesy and sensitivity. (Doc. 28 at 12.) The patient indicated that his or her likelihood of returning or recommending the clinic was "very poor." ( Id. ) Peterson was the only "black lady" assigned primarily to the check-out desk during this time period. (Doc. 25 at 163.) However, during this time, Melanie Jones, an African-American PES, occasionally covered for check-out personnel while they were on breaks. (Doc. 39-3 ¶ 7.)

In March 2012, Sanso received another anonymous patient comment card, which stated that his or her visit could have been better with "faster checkout" and that the courtesy of the check-out desk was only "fair." (Doc. 28 at 13.) This comment card did not identify or describe Peterson as the PES involved with the patient's check-out, ( see id. ); therefore, it could have referred to any PES.

2. Coworker Complaints

One of Peterson's coworkers, Aubrey Gamble, the white PES primarily assigned to the check-out desk with Peterson after Moody took a maternity leave, reported to Sanso that she was concerned about Peterson's inappropriate interactions with patients. (Doc. 24-1 at 63-64; doc. 25 at 73-74.) According to Sanso, Gamble complained that Peterson "doesn't interact well with patients, " and Sanso asked Gamble to provide her with specific incidents. (Doc. 25 at 74.) Thereafter, in April 2012, Gamble emailed Sanso about two incidents of poor customer service: (1) Peterson had interrupted an elderly patient, and (2) she had not ended a personal telephone call to help a waiting patient. ( Id. at 72-73, 77-78; doc. 27 at 29.)

Cheryl Goodwin, white Team Lead, talked to Sanso about Peterson's rude reaction when asked a question about charge tickets or entries, including exhibiting negative body language. (Doc. 25 at 80; doc. 33 ¶ 8.) Goodwin reported to Sanso that, although Peterson ultimately would answer her questions, she "acted as though she did not want to answer and would act rudely." (Doc. 25 at 80) On April 19, 2012, Goodwin reported to Sanso that Peterson appeared to be working unnecessary overtime; she told Sanso that she had seen Peterson at work at 5:25 p.m. and that all the patients had left the clinic by 4:30 p.m. or 4:45 p.m. ( See doc. 27 at 31.) Peterson generally disputes that she worked unnecessary overtime. ( See doc. 39-3 ¶ 8 ["I did not work unnecessary overtime. I communicated with Ms. Sanso if there was a need for me to stay late or come in early. There was always a lot to do after the last patient left, and we would get telephone calls from patients asking questions regarding appointments after 5:00 p.m. on occasion."].) Also, she contends that "the record supports the fact that during this time period, [she] was communicating with Sanso when there was a need to work over." (Doc. 38 at 6 [citing doc. 25 at 62-64 [Sanso testified as to three instances of plaintiff communicating with her regarding working outside her normal schedule in February 2012]; doc. 27 at 19-21 [emails regarding the three February 2012 communications].) She has not presented evidence that she had communicated with Sanso on April 19, 2012, about working late or that she was performing work-related activities on that day.

Peterson testified that Sanso did not bring Goodwin's complaints to her attention. (Doc. 39-3 ¶ 10.) Moreover, she denies that she responded negatively to Goodwin. ( Id. ¶ 11.)

The two PESs that were assigned primarily to the check-in desk-Brittney Bettison, African-American, and Vicki Frye, white-reported to Sanso that Peterson was away from the check-out desk and that she had failed to help them. (Doc. 25 at 95-96; doc. 24-1 at 62, 64.) Peterson denies that she ever failed to help the check-in desk when needed. (Doc. 39-3 ¶ 12). Also, she sent an email offering to help others on March 8, 2012, (doc. 27 at 22); however, Sanso testified that she sometimes doesn't get email till a later time, so she preferred that Peterson simply ask her coworkers if they needed help, rather than sending an email, (doc. 25 at 65-66).

Sanso testified that she had "coached" Peterson about the concerns raised by her coworkers and reminded her periodically of the Foundation's expectations regarding customer service, team work, and working overtime.[3] (Doc. 25 at 74-75, 81-82, 94, 96.)

3. Doctors' Complaints

In early 2012 three doctors in the Dermatology Clinic complained to Sanso about Peterson's job performance, including that (1) she booked patients in the wrong appointment slots, (2) she was unable to answer questions about patient charges, (3) she was staying late, and (4) she displayed a negative attitude and negative body language when they asked her questions. (Doc. 25 at 88-93.) Sanso testified that she had talked with Peterson about all of these issues as part of her day-to-day coaching discussions with employees. ( Id. ) Peterson testified that the only complaint she received from the doctors was a complaint about scheduling that applied to everyone. (Doc. 39-3 ¶ 14.)

4. First HIPAA[4] Violation

On April 27, 2012, Peterson gave one patient [hereinafter "Patient A"] the depart summary of another patient [hereinafter "Patient B"]. (Doc. 24-1 at 55-60; doc. 34 ¶ 3.) According to Peterson, Patient A had given her the charge ticket for Patient B. (Doc. 24-1 at 57-58.) During the check-out process, she had called Patient A by Patient B's name, to which Patient A had responded without correcting her. ( Id. at 57.) The error was discovered sometime later when Goodwin brought Patient B to the check-out desk, looking for his/her charge ticket. (Doc. 39-3 ¶ 17; doc. 33 ¶¶ 11-12; doc. 24-1 at 56-57.)

Sanso investigated the incident. (Doc. 33 ¶ 10.) She testified that her investigation showed that Dr. Elmet discovered he had Patient A's charge ticket for Patient B, his patient. ( Id. ¶ 11.) He gave Patient A's charge ticket to Goodwin and asked her to find Patient B's charge ticket. (Doc. 33 ¶ 11.) Goodwin asked Peterson about Patient B's charge ticket and Peterson told her that she had checked out Patient B. ( Id. ¶ 12.) Sanso determined that Peterson had failed to confirm Patient A's name and his/her birthday at check-out, and she had not compared the name on Patient A's check and driver's license with the name on his/her charge ticket. ( Id. ¶ 13.)

Sanso testified that she could not determine how the charge tickets were switched in the first place. ( Id. ¶ 14.) Peterson testified that she believed Goodwin had given Patient B's charge ticket to Patient A, but she did not see Goodwin give Patient A the wrong charge ticket. (Doc. 24-1 at 100.) During the course of Sanso's investigation, Peterson advised her that she had received the wrong charge ticket directly from Patient A and that another doctor had signed that charge ticket, which had Dr. Elmet's name at the top. (Doc. 39-3 ¶¶ 15, 16.)

Sanso determined that Peterson had failed to confirm Patient A's name and date of birth when she checked him/her out and that she had failed to confirm that the name on his/her check and his/her driver's license was the same as the name on the depart summary. (Doc. 33 ¶ 13.) Peterson does not dispute that she failed to verify Patient A's birthday and/or compare the name on his/her check and driver's license with the name on the charge ticket. She states only that she called Patient A by Patient B's name and he/she did not correct her. (Doc. 38 at 8 [citing doc. 39-3 ¶ 14].) According to Sanso, verifying the patient's name and date of birth and checking the driver's license for a personal check are all part of the regular protocol for check-out. ( Id. ) Sanso testified that she concluded that Peterson had not properly verified Patient A's identity causing her to give him/her Patient B's depart summary. ( Id. ¶ 14.)

Also, Sanso testified that her investigation did not identify any other employee who had improperly disclosed patient information. (Doc. 25 at 111-13.) Nevertheless, she arranged for additional education on patient confidentiality compliance for all clinic employees, and she documented the HIPAA/privacy violation in the files of all the clinic employees that had encountered Patients A or B that day-including Goodwin, white, Bettison, African-American and LaShundra Turner, African-American. (Doc. 33 ¶ 19; doc. 34 ¶ 5; see doc. 28 at 11.)

Following her investigation, Sanso contacted Jeannie Singer, the Director of Sourcing and Workforce Development in Human Resources [HR], to report the patient confidentiality breach. (Doc. 33 ¶ 15; Doc. 35 ¶¶ 1, 2.) Singer told Sanso to talk to Jann Robinson, HIPAA Privacy Coordinator. (Doc. 33 ¶ 15.) Generally, violations of patient confidentiality are referred to Robinson for a determination of the level of the violation and whether it is a reportable incident. (Doc. 34 ¶ 2; Doc. 35 ¶ 3.) Sanso contacted Robinson, who confirmed that Peterson's disclosure of the wrong depart summary was an incidental, as opposed to an intentional, violation of the Foundation's policy on use and disclosure of health information and HIPAA. (Doc. 33 ¶ 16; 34 ¶ 3.) Singer and Sanso decided not to terminate Peterson based on the incidental violation; rather, they decided to address the HIPAA/privacy violation together with other performance issues. (Doc. 33 ¶ 17; doc. 35 ¶ 4.)


On May 18, 2012, Sanso met with Peterson and gave her a written warning [hereinafter "the May 18 Warning"]. (Doc. 33 ¶ 20; doc. 24-1 at 44.) The May 18 Warning stated, "This disciplinary action is being taken for the following reason[s]: Job Performance [and] Behavior." (Doc. 29 at 4.) Under the heading, "Facts of Occurrence(s), " the May 18 Warning noted:

Received complaints from staff for concerns related to teamwork, customer service, overtime accrual and abuse, personal phone calls, productivity, and noncompliance with booking preferences of providers. Also had an incident where patient information was given to the wrong patient at discharge including the depart summary and payment receipt by Sarah [Peterson]. An action plan is attached outlining more in-depth accounts of these concerns and actions taken by Sarah to demonstrate improvement in performance/behavior. Failure to demonstrate improvement in performance/behavior will result in further disciplinary action up to and possibly including termination.

( Id. ) The "action plan" attached to the May 18 Warning stated:

1. Teamwork -concerns relate to lack of initiative with assisting other PES personnel and negative nonverbal communication
ACTION PLAN: Sarah will frequently (1) check on coworkers to determine any assistance needed and assist these individuals when lines are forming to keep clinic flow efficient[, ] (2) ask coworkers if they need any assistance throughout the day[, and] (3)... refrain from negative nonverbal and verbal expressions at all times.
2. Customer Service -concerns relate to inappropriate tone, communication, lack of acknowledgement [sic], and negative nonverbal expression.
ACTION PLAN: Sarah will (1) exhibit professional and positive communication with customers at all times[, ] (2) exhibit AIDET principles at all times including the 10 foot rule and acknowledging patients with eye contact, verbal affirmation, pleasant expression, and tone and (3) will attend Essential People Skills class.
3. Patient Identification -concerns relate to lack of verification of patient identity prior to distributing patient information.
ACTION PLAN: Sarah will (1) review patient identification policies, HIPAA law, and penalties[, ] (2) serve on an action team to assist in educating staff on risk management principles[, ] and (3) actively verify patient identity prior to giving patient information at all times.
4. Overtime Accrual -concerns relate to overtime accrual and productivity with frequent personal phone calls and breaks while on overtime.[5]
ACTION PLAN: Sarah will (1) continue altered hours assigned to check out personnel for early/late weeks[, ] refrain from taking frequent breaks, personal phone call while in the patient care area unless an emergency (only take on breaks and in non-patient care areas)[, ] (3) be proactive throughout the day to accomplish PES duties by multi-tasking and carry out non-emergent duties as needed[, ] and (4) obtain approval for any overtime PRIOR to accrual by Cheryl [Goodwin] or [Sanso].

(Doc. 29 at 5-6 [footnote added].) Sanso and Plaintiff discussed each of the action plan areas, as well as specific improvement goals. (Doc. 24-1 at 45-53; see doc. 29 at 6.)

In the Employee Comments section, Peterson wrote, "I do not agree with this Written Warning because there was never a verbal warning. Also this [has] no merit[;] it is hearsay. I am put in a hostile environment, and no matter how well I perform [there] will be no change." (Doc. 29 at 4.) Peterson testified that she felt she was in a "hostile environment" because she "was constantly called into [Sanso's] office about someone saying this or someone saying that, " and "it seemed like [she] was a bother to [Sanso] and [Sanso] was rude." (Doc. 24-1 at 61, 65.) Despite her testimony that she was constantly called into Sanso's office, she testified that, prior to May 18, 2012, she "was not previously coached by Ms. Sanso regarding the items in the May 18, 2012, write-up." (Doc. 39-3 ¶ 18.) She denies "that she was lacking in teamwork, productivity, [and] non-compliance with provider preferences, " and that she "abused overtime." ( Id. )


A few days after the May 18 Warning, Peterson went to HR to complain that no other employees had been disciplined for the patient confidentiality violation.[6] (Doc. 24-1 at 121-23.) On May 21, 2012, Joan Wilson, African-American HR Generalist, met with Peterson about her complaint. (Doc. 36 ¶¶ 1, 3; doc. 24-1 at 121-22.) Wilson had never met Peterson before this meeting. (Doc. 36 ¶ 3.) During this meeting, Wilson told Peterson that she could have been terminated for her patient confidentiality violation; she told Peterson, "You should be happy that [Sanso] didn't fire you because of a HIPAA violation." (Doc. 24-1 at 123.) Peterson told Wilson that Sanso was a "racist" because she was "constantly writing up the black people, and she never writes up the white people." (Doc. 24-1 at 124-26; see also doc. 36 ¶ 3.) Wilson suggested that they meet with Sanso to discuss Peterson's concerns and Peterson agreed. (Doc. 24-1 at 125; doc. 36 ¶ 4.)

Peterson, Wilson, and Sanso met on May 22, 2012, and discussed the May 18 Warning and Peterson's working relationship with Sanso. (Doc. 24-1 at 145; doc. 36 ¶ 5; see doc. 29 at 9.) Wilson told Sanso that Peterson had called her racist, a fact that Peterson thought Wilson would keep confidential. (Doc. 24-1 at 139.) Peterson stated that she felt Sanso treated white employees better than African-American employees and that Sanso considered African-American employees to be "a problem". (Doc. 36 ¶ 5; doc. 24-1 at 140, 145-46; doc. 29 at 9.) Sanso replied that said she hated that Peterson felt that way, that she did not feel that way about the employees, and that she would be more aware of the way she communicated in the future. (Doc. 24-1 at 140, 145-46; doc. 36 ¶ 5.) Wilson felt this meeting was successful and she was "hopeful that [Peterson would] receive the admonishments and improve her performance." (Doc. 36 ¶ 6; see doc. 29 at 9.)


On or about May 24, 2012, Sanso learned of a second patient confidentiality violation involving Peterson.[7] (Doc. 25 at 117-18; doc. 26 at 203-05; see doc. 27 at 1.) On that day, a patient's father had contacted Dr. Rosenthal, Chief of Staff, to complain that his son (the patient) had received another patient's depart summary when he left the Dermatology Clinic. (Doc. 32 ¶ 7.) Dr. Rosenthal notified Pardue, who contacted Sanso and Robinson. ( Id. ¶¶ 7, 8.)

Sanso investigated the incident and discovered that, on May 16, 2012, Peterson had failed to verify the patient's name and date of birth and that she had given the wrong depart summary to a patient. (Doc. 25 at 117-20; doc. 24-1 at 95-97.) In her deposition, Peterson testified that she did not know what happened that day or even if she had given the patient the wrong depart summary. ( See doc. 24-1 at 95-96.) However, in her Declaration, she testified, "I recall that the reason for the HIPAA violation on May 16, 2012, was that the patient who was checking out had a name that was extremely similar to another name in the system."[8] (Doc. 39-3 ¶ 19.) She does not dispute the fact that she failed to verify the patient's name and birthday before handing him/her the depart summary. Robinson confirmed that the disclosure of one patient's depart summary to another patient was an incidental violation of the Foundation's patient confidentiality policy. (Doc. 34 ¶ 6.)

As a result of this May 16, 2012, incident, Peterson received a Final Warning on June 4, 2012. (Doc. 24-1 at 92-94; doc. 29 at 8.) This Final Warning stated:

Facts of Occurrence(s): Per out verbal discussion 5/31/12, I received a complaint on May 21 and documentation regarding an incidental disclosure of a patient's depart summary to another patient by Sarah during check out of the patient on 5/16/12. This is the second offense of this nature.... Both patients involved have been notified of the incident and all information inappropriately disclosed has been obtained.

Previous warning date(s):

For this same offense: Written Warning 5/18/12 included an incidental disclosure surrounding a depart summary and failure to validate patient identity with receipt of a check
For other offense(s): Verbal Discussion by Kim Turnley (Director) for teamwork/workload concerns with coworker, Written Warning for multiple behavior and job performance concerns 5/18/12
Follow-up, if applicable: As discussed previously via verbal discussions during the account of the first incident, review of the written warning, and verbal discussion of the second incident, Sarah will actively verify patient name and date of birth. In addition, Sarah has vocalized she will lay out/review all paperwork at check out to double check patient identification and information to ensure verification and prevent incidental disclosures. The action plan surrounding the written warning will also remain in effect which includes Sarah reviewing the importance of HIPAA regulation and privacy parameters in the Dermatology setting.

(Doc. 29 at 8.)


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