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Kretzschmar v. Birmingham Nursing and Rehabilitation Center East, LLC

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

May 19, 2017



          John E. Ott Chief United States Magistrate Judge.

         This action involves claims for race discrimination, retaliation, and hostile work environment brought by plaintiff Kendralia Kretzschmar, an African-American female, against her former employer, defendant Birmingham Nursing and Rehabilitation Center East, LLC (“Birmingham East”). Kretzschmar worked at Birmingham East from July 2012 through September 2013. Her claims are based on three primary sets of allegations. First, Kretzschmar alleges that Birmingham East promised in June 2013 to promote her to the position of Assistant Director of Nursing, but one month later “demoted” her to her prior position because of her race. Second, she alleges that Birmingham East suspended her without pay because of her race. Third, she alleges that Birmingham East retaliated against her, and ultimately terminated her, for complaining about race discrimination.

         Before the court are Birmingham East's motion for summary judgment (doc. 41) and motion to strike certain exhibits submitted by Kretzschmar in response to the motion for summary judgment (doc. 51).[1] For the reasons set forth below, Birmingham East's motion to strike will be granted in part and denied in part and its motion for summary judgment will be granted.


         Kretzschmar initially filed this action against Birmingham East and its Executive Director, Melody Burch. (Doc. 1). In Kretzschmar's original complaint, she cited a litany of federal employment law statutes: Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. §§ 2000e et seq.; the Americans with Disabilities Act (“ADA”), 42 U.S.C. §§ 12101 et seq.; 42 U.S.C. § 1981 (“Section 1981”); 42 U.S.C. § 1981a; 42 U.S.C. § 1983 (“Section 1983”); the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. §§ 626 et seq.; and the Fair Labor Standards Act (“FLSA”), 29 U.S.C. §§ 201 et seq. (Doc. 1 at ¶ 1). She did not state her claims in separate counts, but rather lumped all of her claims into a single paragraph that accused Birmingham East and Burch of discriminating and retaliating against her with respect to “job duties, and assignments, job evaluations, pay, working conditions, hiring, promotion, hostile work environment, discipline, and other terms and conditions of employment” in violation of all of the statutes she had cited. (Doc. 1 at ¶ 20).

         Birmingham East and Burch filed a motion to dismiss the complaint for insufficiency of service of process under Rule 12(b)(5) of the Federal Rules of Civil Procedure and failure to state a claim upon which relief may be granted under Rule 12(b)(6). (Doc. 7). Kretzschmar filed an opposition to the motion to dismiss, as well as a motion for leave to file an amended complaint that named Birmingham East as the only defendant.[2] (Doc. 16). She also obtained proper service on Birmingham East.

         The Court held a telephone conference with the parties to clarify their respective positions on the pending motions. During the call, Kretzschmar's counsel confirmed that Kretzschmar did not intend to pursue any claims against Burch as reflected in her amended complaint. Based on that representation, the Court granted Kretzschmar's motion to file the amended complaint and noted that Burch was no longer a defendant. (Doc. 26). The Court also advised the parties that it would treat Birmingham East's pending motion to dismiss Kretzschmar's original complaint as a motion to dismiss the claims in her amended complaint, based on the parties' representations that the motion to dismiss was ripe for decision and that they had no additional arguments to submit. (Id.)

         Unlike her original complaint, Kretzschmar's amended complaint is divided into four counts. Count One alleges race discrimination, Count Two alleges retaliatory discharge, Count Three alleges reprisal, and Count Four alleges a hostile and abusive work environment. (Doc. 28). The Court granted in part and denied in part Birmingham East's motion to dismiss the amended complaint. The Court dismissed many of Kretzschmar's claims (including any ADA, ADEA, and FLSA claims), but allowed the following claims to go forward: Kretzschmar's claims under Title VII and Section 1981 alleging race discrimination as to her “suspension, demotion, and pay reduction” in July 2013; (2) her claims under Title VII and Section 1981 alleging retaliatory discharge; (3) her claim under Section 1981 for retaliatory acts other than discharge; and (4) her hostile work environment claim under Section 1981. (Docs. 32 & 33).

         Birmingham East has now moved for summary judgment on Kretzschmar's remaining claims pursuant to Rule 56 of the Federal Rules of Civil Procedure. (Doc. 41). Kretzschmar has submitted a response in opposition to the motion for summary judgment (doc. 47), along with a number of exhibits. (Docs. 47-1 through 48-9). Birmingham East has filed a motion to strike many of the exhibits. (Doc. 51). Because the Court's ruling on the motion to strike will impact its consideration of Birmingham East's motion for summary judgment, the Court will first address the motion to strike, and will then turn to the motion for summary judgment.


         Kretzschmar's response to Birmingham East's motion for summary judgment includes (among other exhibits) email correspondence that appears to relate to the Charge of Discrimination she filed with the Equal Employment Opportunity Commission (“EEOC”) (Ex. 1, docs. 48-1 through 48-6); the Affidavit of Letosha Van Buren, a former Staff Assistant at Birmingham East (Ex. 5, doc. 47-4); the Affidavit of Anita White, a former Certified Nursing Assistant at Birmingham East (Ex. 6, doc. 47-5); the Affidavit of Kimmie Harris, a former Licensed Practical Nurse at Birmingham East (Ex. 9, doc. 47-8); and the Affidavit of Luther Danzy, a visitor at Birmingham East (Ex. 14, doc. 47-13). Birmingham East has moved the Court to strike the EEOC correspondence, the White, Harris, and Danzy affidavits, and portions of the Van Buren affidavit. Kretzschmar has not opposed or otherwise responded to the motion to strike.

         A. Standard of Review

         “A district court has broad discretion in determining the admissibility of evidence” on a motion for summary judgment. Hetherington v. Wal-Mart, Inc., 511 F.App'x 909, 911 (11th Cir. 2013).[3] The Supreme Court has held that the nonmoving party is not required to produce evidence “in a form that would be admissible at trial in order to defeat summary judgment.” Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). This “simply allow[s] otherwise admissible evidence to be submitted in inadmissible form at the summary judgment stage, though at trial it must be submitted in admissible form.” McMillan v. Johnson, 88 F.3d 1573, 1584 (11th Cir. 1996) (emphasis in original). In this regard, “[t]he general rule is that inadmissible hearsay cannot be considered on a motion for summary judgment, ” although a district court “may consider a hearsay statement in passing on a motion for summary judgment if the statement could be reduced to admissible evidence at trial or reduced to admissible form.” Macuba v. Deboer, 193 F.3d 1316, 1322-23 (11th Cir. 1999) (footnote, internal quotations, and citations omitted). In addition, “[u]nsworn statements do not meet the requirements of Rule 56” and are not considered by the court in ruling on a motion for summary judgment. Dudley v. City of Monroeville, 446 F.App'x 204, 207 (11th Cir. 2011); see also Rhodes v. Tuscaloosa Cnty. Bd. of Ed., 935 F.Supp.2d 1226, 1233 (N.D. Ala. 2013) (“The court does not consider unsworn statements.”).

         B. EEOC Correspondence

         Exhibit 1 to Kretzschmar's response contains a number of emails between Kretzschmar and Lashaundra Love, the EEOC investigator assigned to investigate her EEOC Charge. (Docs. 48-1 through 48-6). Specifically, Exhibit 1 contains an email from Love to Kretzschmar summarizing Birmingham East's response to her EEOC Charge (see doc. 48-1 at 3-4; multiple copies of the email are included in Exhibit 1), and a series of emails from Kretzschmar to Love responding to Birmingham East's position and reciting various allegations against Birmingham East (docs. 48-1 at 2-3 & 48-6 at 2). Exhibit 1 also includes a lengthy unsworn statement, presumably provided by Kretzschmar to the EEOC, discussing her allegations against Birmingham East in detail (docs. 48-3 at 4-5 & 48-4 at 2-5).[4]Birmingham East argues that the EEOC Correspondence, none of which is authenticated, should be stricken because it is inadmissible hearsay. (Doc. 51 at 6-9). The Court agrees with Birmingham East.

         The Court first notes, again, that Kretzschmar has filed no opposition or other response to Birmingham East's motion to strike. She has made no effort to authenticate any of the documents in Exhibit 1, and has not challenged Birmingham East's assertion that the EEOC Correspondence is inadmissible hearsay. Indeed, Lashaundra Love's email summarizing Birmingham East's position is double hearsay, as it contains Love's recitation of the information she was provided by Birmingham East. See United States v. Robinson, 239 F.App'x 507, 508 (11th Cir. 2007) (“Hearsay is a ‘statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.' Fed.R.Evid. 801(c). Hearsay within hearsay, or so-called ‘double-hearsay, ' is admissible only if each part of the combined statements conforms with an exception to the hearsay rule. Fed.R.Evid. 805.”). Kretzschmar has not argued that any of the statements in Love's email constitute non-hearsay evidence or conform to an exception to the hearsay rule.[5] Kretzschmar's own emails and her unsworn statement are hearsay as well, as they are out-of-court statements offered by Kretzschmar for the truth of the matters asserted therein. They are also double hearsay to the extent Kretzschmar repeats information she allegedly learned from other employees, including Shaunnan Cook and Blake Steapleton. (See Doc. 48-1 at 2). Again, Kretzschmar has not argued that any of these statements fit within an exception to the hearsay rule. Moreover, all of the statements in the EEOC Correspondence are unsworn.

         Accordingly, the Court will grant Birmingham East's motion to strike the EEOC Correspondence in Exhibit 1. See Rhodes, 935 F.3d at 1236-37 (striking unauthenticated email from plaintiff and observing that “plaintiff does not argue that the email-her own out-of-court statement-or the statement of [a third-party cited in the email] are admissible testimony”). The Court has not considered the EEOC Correspondence in ruling on Birmingham East's motion for summary judgment.[6]

         C. The Affidavits of Anita White, Kimmie Harris, and Luther Danzy

         Kretzschmar has also submitted affidavits signed by Anita White, Kimmie Harris, and Luther Danzy. Anita White is a Certified Nursing Assistant who worked at Birmingham East from August 2010 to January 2014. In her affidavit, White offers testimony regarding alleged nepotism and racial tension at Birmingham East. (Doc. 47-5). Kimmie Harris is a Licensed Practical Nurse who worked at Birmingham East for an unidentified period of time. She has offered affidavit testimony concerning the documentation of medication errors at Birmingham East. (Doc. 47-8). Luther Danzy visited a Birmingham East resident, the father of a friend, multiple times from 2012 to 2014. In his affidavit, he expresses speculative opinions on the treatment the resident, an African-American, received at the facility. (Doc. 47-13). Birmingham East has moved the Court to strike all three affidavits because Kretzschmar never identified White, Harris, or Danzy as witnesses prior to submitting their affidavits in opposition to the pending motion for summary judgment. (Doc. 51 at 2-5).

         Rule 26(a) of the Federal Rules of Civil Procedure requires a party to provide “the name … of each individual likely to have discoverable information- along with the subjects of that information-that the disclosing party may use to support its claims or defenses ….” Fed.R.Civ.P. 26(a)(1)(A)(i). If a party fails to identify a witness as required by Rule 26(a), the party is not allowed to use the witness “to supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified or is harmless.” Fed.R.Civ.P. 37(c)(1). “‘The burden of establishing that a failure to disclose was substantially justified or harmless rests on the nondisclosing party.'” Mitchell v. Ford Motor Co., 318 F.App'x 821, 824 (11th Cir. 2009) (quoting Leathers v. Pfizer, Inc., 233 F.R.D. 687, 697 (N.D.Ga. 2006)). Among the factors courts consider in deciding whether to exclude testimony from a non-disclosed witness are “(1) the importance of the testimony; (2) the reason for the [plaintiff's] failure to disclose the witness earlier; and (3) the prejudice to the opposing party if the witness had been allowed to testify.” Pete's Towing Co. v. City of Tampa, 378 F.App'x 917, 920 (11th Cir. 2010) (quoting Bearint ex rel. Bearint v. Dorell Juvenile Grp., Inc. 389 F.3d 1339, 1353 (11th Cir. 2004)) (quotation marks omitted).

         Here, it is undisputed that Kretzschmar did not identify Anita White, Kimmie Harris, or Luther Danzy in her Rule 26 disclosures.[7] Kretzschmar also failed to identify White, Harris, and Danzy in her response to Interrogatory No. 16 of Birmingham East's First Interrogatories, which asked her to identify “every person” who she believed had “personal information” regarding her claims and/or Birmingham East's defenses.[8] (See Doc. 35-1 at 5). In addition, Kretzschmar did not mention White, Harris, or Danzy at any point during her deposition. (See Kretzschmar Dep., Docs. 43-1 through 43-3).

         Kretzschmar has not even attempted to explain why she never disclosed White, Harris, and Danzy as potential witnesses prior to submitting their affidavits, much less argued that the failure to disclose was substantially justified or harmless. Birmingham East has certainly been prejudiced by Kretzschmar's actions; because Kretzschmar did not disclose White, Harris, and Danzy as individuals with discoverable information she might use to support her claims, or identify them as persons with personal information regarding her claims, Birmingham East had no reason or opportunity to depose them before the close of discovery and before Kretzschmar submitted their affidavits. See Moore v. Corp. Facilities Mgt., L.L.C., Case No. 2:10-cv- 3354-SLB, 2012 WL 4329288, *5 (N.D. Ala. Sept. 17, 2012) (granting the plaintiff's motion to strike the declaration of an undisclosed witness submitted by the defendant in support of a motion for summary judgment, where the plaintiff had “no opportunity to depose [the witness] within the time allowed by the court's scheduling order.”). Accordingly, the Court finds that Kretzschmar's failure to identify Anita White, Kimmie Harris, and Luther Danzy as potential witnesses was neither justified nor harmless and will grant Birmingham East's motion to strike their affidavits. The Court will not consider the affidavits in ruling on Birmingham East's motion for summary judgment.

         D. The Affidavit of Letosha Van Buren

         Kretzschmar has also submitted the Affidavit of Letosha Van Buren, an African-American who was employed as a Staffing Assistant at Birmingham East. (Doc. 47-4). It is unclear when she worked at Birmingham East or how long she worked there. In her affidavit, Van Buren primarily discusses her interactions with Amanda Gillott, a Caucasian nurse at Birmingham East.[9] She also offers comments on Birmingham East's treatment of Sandy Copeland and Leslee Watkins, two former Caucasian employees who held the positions of Director of Nursing Services (“DON” or “DNS”) and Assistant Director of Nursing (“ADON” or “ADNS”) at Birmingham East.[10]

         Birmingham East has moved the Court to strike a number of statements from Van Buren's affidavit. (Doc. 51 at 9-11). First, Birmingham East has moved the Court to strike the following statement from the second paragraph of Van Buren's affidavit: “I aver that the issues that includes [sic]: discrimination, creating a hostile work environment, intimidation, and the list goes on; happened at Birmingham Nursing and Rehab Center East when I was employed.” (Van Buren Aff. at ¶ 2). The Court agrees with Birmingham East that this statement expresses improper legal conclusions and is due to be stricken. See Hinson v. Chelsea Indus., 542 F.Supp.2d 1236, 1242-43 (M.D. Ala. 2008) (striking paragraph of plaintiff's affidavit because it was “conclusory and state[d] an impermissible legal conclusion which invade[d] the province of the court”).

         Second, Birmingham East has moved the Court to strike Van Buren's statement in the second paragraph of her affidavit that Amanda Gillott worked at Birmingham East “after being fired from another facility and having her nursing license suspended.” (Van Buren Aff. at ¶ 2). Birmingham East argues that this statement should be stricken because Van Buren has not explained how she acquired knowledge about Gillott's previous employment history and licensure status and because the statement is irrelevant. (Doc. 51 at 10). Although Birmingham East is correct that Van Buren does not explain how she acquired this knowledge, she does state that the facts in her affidavit are true based upon her “personal knowledge and belief” (Van Buren Aff. at ¶ 1), which satisfies the requirement that “[a]n affidavit or declaration used to support or oppose a motion [for summary judgment] must be made on personal knowledge ….” Fed.R.Civ.P. 56(c)(4). However, the Court agrees with Birmingham East that information about Gillott's employment history and licensure status prior to being hired by Birmingham East is irrelevant. The information has no relevance to any of Kretzschmar's claims in this action, which concern how Kretzschmar was allegedly treated at Birmingham East. Accordingly, Van Buren's statement that Gillott worked at Birmingham East after being fired from another facility and having her nursing license suspended will be stricken.

         Third, Birmingham East has moved to strike statements in the second and sixth paragraphs of Van Buren's affidavit regarding discipline Amanda Gillott received while working at Birmingham East.[11] Birmingham East argues that Van Buren, who was not in a position of management at the facility, would have no personal knowledge of any discipline Gillott received and that her affidavit fails to establish the basis of any such personal knowledge. (Doc. 51 at 10). However, as noted above, Van Buren has represented that the facts set forth in her affidavit are true based upon her personal knowledge and belief. Given that representation, Van Buren's statements regarding the discipline Gillott received at Birmingham East will not be stricken in the absence of some affirmative evidence that she could not have had any personal knowledge of such discipline, which Birmingham East has not shown.

         Fourth, Van Buren's affidavit includes the following statement regarding the announcement that Leslee Watkins was “stepping down” as Birmingham East's DON and taking the position of ADON: “How convenient considering Sandy Copeland had just regained her nursing license.” (Van Buren Aff. at ¶ 6). Birmingham East asserts that this statement is due to be stricken, and the Court agrees. The statement is reflective of nothing more than Van Buren's inadmissible (and sarcastic) opinion.

         Finally, Birmingham East has moved to strike the entire fourth paragraph of Van Buren's affidavit, in which Van Buren states as follows:

(The “DON”, “ADON”, and Amanda Gillott are all Caucasians.) Leslee Watkins was new at the time and was being trained by Sandy Copeland (while her license were [sic] suspended) and our Executive Director, Melody Burch (also Caucasian) wanted her good friend Sandy Copeland to keep her job. Everyone knew including Leslee that the only reason they hired Leslee Watkins as the “DON” was because the DON has to have an active nursing license. They (Melody Burch and Sandy Copeland) had no intention to ever train Leslee, they only wanted to use her license until Sandy regained hers. Once Sandy Copeland regained her license Leslee would step down as DON to the role of ADON.

(Van Buren Aff. at ¶ 4). Except for Van Buren's statements that the DON, ADON, Amanda Gillott, and Melody Burch are Caucasian, all of the above statements are speculative and cannot be based on Van Buren's personal knowledge. In particular, Van Buren is in no position to testify to what “everyone knew” about the hiring of Leslee Watkins or to what Melody Burch intended when she hired Watkins. To that extent the fourth paragraph of Van Buren's affidavit will be stricken.


         A. Summary Judgment Standard

         Rule 56 of the Federal Rules of Civil Procedure provides that a court “shall grant summary judgment 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). In other words, summary judgment is proper “after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.” Celotex, 477 U.S. at 22. “In making this determination, the court must review all evidence and make all reasonable inferences in favor of the party opposing summary judgment.” Chapman v. AI Transport, 229 F.3d 1012, 1023 (11th Cir. 2000) (en banc) (quoting Haves v. City of Miami, 52 F.3d 918, 921 (11th Cir. 1995)). Inferences in favor of the non-moving party are not unqualified, however. “[A]n inference is not reasonable if it is only a guess or a possibility, for such an inference is not based on the evidence, but is pure conjecture and speculation.” Daniels v. Twin Oaks Nursing Home, 692 F.2d 1321, 1324 (11th Cir. 1983) (alteration supplied). Moreover,

[t]he mere existence of some factual dispute will not defeat summary judgment unless that factual dispute is material to an issue affecting the outcome of the case. The relevant rules of substantive law dictate the materiality of a disputed fact. A genuine issue of material fact does not exist unless there is sufficient evidence favoring the nonmoving party for a reasonable jury to return a verdict in its favor.

Chapman, 229 F.3d at 1023 (quoting Haves, 52 F.3d at 921) (emphasis and alteration supplied). See also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986) (asking “whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law”).

         B. Facts[12]

         1. Kretzschmar's Hiring

         Birmingham East is a long-term care nursing facility in Birmingham, Alabama. At all relevant times, Melody Burch was Birmingham East's Executive Director. (Declaration of Melody Burch (Doc. 43-5) at ¶¶ 1-2).

         In July 2012, Burch hired Kretzschmar as the temporary Social Services Director at Birmingham East. (Id. at ¶ 6). Kretzschmar had obtained her Registered Nurse (“RN”) license two months earlier. (Kretzschmar Dep. at 30). After Birmingham East's regular Social Services Director returned to work, Burch placed Kretzschmar in the position of MDS (Minimum Data Set) Coordinator. MDS Coordinator is a nursing position that involves conducting clinical assessments of facility residents as part of the development of a plan of care for each resident. The position does not involve supervisory duties. (Burch Decl. at ¶ 6).

         2. Kretzschmar's Appointment to Interim DON

         In January 2012 (prior to Kretzschmar's hiring), Burch hired Sandy Copeland, a Caucasian, as a Quality Assurance Nurse at Birmingham East. According to Burch, her intention when she hired Copeland was ultimately to make her the facility's DON. However, because Copeland was on probationary status with the Alabama Board of Nursing and was restricted from supervising other employees at that time, Burch was prevented from hiring her as the DON. Consequently, in March 2012 Burch promoted Leslee Watkins, an RN she had hired the prior month, to DON. Watkins, a Caucasian, had approximately one year of nursing experience at the time of her hiring. Burch also understood that Watkins had experience managing subordinates. Burch contends that Watkins's promotion to DON was not an “interim” promotion, even though Burch still intended to ultimately place Copeland in the DON position if she successfully completed the requirements of her probation. (Burch Decl. at ¶¶ 4-5).

         In the summer of 2012, the restrictions of Copeland's probation were lifted. Burch then promoted her to DON and re-assigned Watkins to the position of ADON. (Id. at ¶¶ 4-5).

         The following year, in early June 2013, Burch learned that Copeland was not following Birmingham East's established procedures for securing narcotics. Upon investigation, Burch uncovered evidence that Copeland may have been responsible for the theft of narcotics from the facility's narcotics destruction cabinet. Burch also discovered that Watkins, like Copeland, was not following Birmingham East's procedures for securing narcotics. However, she did not uncover any evidence that Watkins was stealing narcotics. (Id. at ¶ 7).

         On June 13, 2013, Burch terminated Copeland's employment as DON. Around this same time, Watkins resigned as ADON. Birmingham East policy requires professional personnel, including nurses, to give four weeks' notice of resignation and to work all scheduled days during the notice period in order to receive payment for unused vacation and personal time. Because Burch believed that Copeland had taken advantage of Watkins, Burch agreed to pay Watkins for her unused vacation and personal time, even though Watkins had not given four weeks' notice prior to her resignation. (Id. at ¶ 8).

         According to Burch, Birmingham East did not have any remaining nurses on staff with sufficient experience to be promoted to DON, which meant that she needed to hire an outside candidate to fill the position. However, controlling federal regulations required Birmingham East to have a DON on staff at all times. Under these circumstances, Burch decided to make Kretzschmar the Interim DON, with an increase in pay, until a permanent DON was hired. (Id. at ¶ 9).

         Exactly what Kretzschmar was told when she was appointed Interim DON is in dispute. According to Burch, she told Kretzschmar that once a permanent DON was hired, she would consider Kretzschmar for the ADON position if Kretzschmar demonstrated that she was capable of handling the job. Burch maintains that she never promised to make Kretzschmar the ADON, but only to consider her for the position. (Id.)

         Kretzschmar does not dispute that Burch appointed her to the DON position on an interim basis. According to Kretzschmar, however, Burch promised to make her the ADON once a permanent DON was hired. (Kretzschmar Dep. at 79-81, 121-22). Kretzschmar insists that Burch promised to make her the ADON and did not tell her that she would simply be “considered” for the position based on her performance. (Id. at 110). According to Kretzschmar, she would not have accepted the Interim DON position had she been told that Burch might later change her mind and not make her the ADON. (Id. at 111-12).

         3. Burch's Decision to Return Kretzschmar to MDS Coordinator

         Kretzschmar began serving in the Interim DON position on June 13, 2013. (Burch Decl. at ¶ 11). The following month, during the week of July 8, 2013, Burch hired Malea Braxton as Birmingham East's permanent DON. Braxton's first day of work as DON was July 15, 2013. (Burch Decl. at ¶ 11).

         During the month that Kretzschmar served in the Interim DON position, Burch observed her job performance and received feedback on her performance from other employees. According to Burch, she noted issues with Kretzschmar's “maturity, professionalism, judgment, leadership and responsibility.” (Id. at ¶ 11).

         In particular, Burch observed:

(a) during daily management meetings with all department heads and others, Ms. Kretzschmar would regularly cut up, joke, make inappropriate comments, and generally act in an immature manner; (b) on one occasion, as a joke, she took the penis from an anatomically correct mannequin used for training purposes and left it in another employee's desk chair; (c) on another occasion in front of me and other employees, she took a “butt pad” out of her pants and swung it around and made comments about how her “booty” looked better padded; (d) during this time period I learned that she had a brief consensual sexual affair with the Human Resources Representative; [and] (e) several nursing department employees told me that when they ...

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