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Nickson v. Jackson Hospital & Clinic, Inc.

United States District Court, M.D. Alabama, Northern Division

September 29, 2017




Plaintiff Tisha Nickson brings this action against Defendant Jackson Hospital & Clinic, Inc. (“Jackson”), alleging employment discrimination pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. See Doc. 1 at 1. Nickson brings claims of discrimination on the basis of her race (African-American) and retaliation. Plaintiff avers that Jackson discriminated against her by paying her less “than Caucasians in other comparative manager positions, ” denying her promotions, and terminating her employment. Doc. 1 at 2-3. In support of her retaliation claims, Nickson alleges that she opposed unlawful race discrimination and that her position was eliminated after she filed a charge of race discrimination with the Equal Employment Opportunity Commission. See Doc. 1 at 3.

         This action is presently before the court on Jackson's motion for summary judgment. See Doc. 19. Nickson filed an opposition to the motion for summary judgment, see Doc. 26, and Jackson replied, see Doc. 29. Nickson also moves to dismiss all claims that are not reasserted in her brief in opposition to Jackson's motion for summary judgment.[2] See Doc. 26 at 1. Upon review of the motions and the record, the court concludes that Jackson's motion for summary judgment is due to be granted, and plaintiff's motion to dismiss is also due to be granted.


         A movant is entitled to summary judgment if it “shows that there is no genuine disputes as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). For summary judgment purposes, an issue of fact is “material” if, under the substantive law governing the claim, its presence or absence might affect the outcome of the suit. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). If the movant fails to satisfy its initial burden, the motion for summary judgment will be denied. Kernel Records Oy v. Mosley, 694 F.3d 1294, 1300 (11th Cir. 2012), cert. denied, 133 S.Ct. 1810 (2013). If the movant adequately supports its motion, the burden shifts to the opposing party to establish - “by producing affidavits or other relevant and admissible evidence beyond the pleadings” - specific facts raising a genuine issue for trial. Josendis v. Wall to Wall Residence Repairs, Inc., 662 F.3d 1292, 1315 (11th Cir. 2011); Dietz v. Smithkline Beecham Corp., 598 F.3d 812, 815 (11th Cir. 2010); Fed.R.Civ.P. 56(c)(1)(A). “All affidavits [and declarations] must be based on personal knowledge and must sets forth facts that would be admissible under the Federal Rules of Evidence[.]” Josendis, F.3d at 1315; Fed.R.Civ.P. 56(c)(4). The court views the evidence and all reasonable factual inferences in the light most favorable to the nonmovant. Miller's Ale House, Inc. v. Boynton Carolina Ale House, LLC, 702 F.3d at 1315; Fed.R.Civ.P. 56(c)(4). However, “[i]f no reasonable jury could return a verdict in favor of the nonmoving party, there is no genuine issue of material fact and summary judgment will be granted.” Morton v. Kirkwood, 707 F.3d 1276, 1284 (11th Cir. 2013) (citation omitted) (internal quotation marks omitted).


         As noted above, Nickson is African-American. In August 2010, Jackson hired Nickson to work as a part-time phlebotomist in its main laboratory. Nickson's education includes a Bachelor of Science degree in legal studies, a Master's Degree in Health Care Administration, a paralegal Associate Degree, a certified nursing certificate, and a phlebotomy certificate. Prior to her employment at Jackson, Nickson worked as a phlebotomist for approximately five years, as a certified nursing assistant for approximately three years, and as a paralegal for roughly three to four years.

         In January 2011, Jackson transferred Nickson to a full-time position as a technician in the Outreach Lab. Shortly thereafter, in March 2011, she was promoted and became the Business and Sales Manager for the Outreach Lab. In this position, Nickson was responsible for supervising one employee, the Outreach Lab's billing and coding assistant.

         In the summer of 2013, the position of Vice President of Physician Services became available. Nickson contacted Riley to express an interest in the position. See Doc. 26-2 at 23. Riley told her that he had someone in mind for the position who had experience as a vice president, and Nickson acknowledged that she did not have that kind of experience. See id. Riley told Nickson that he would consider her when a director's position became available. See id.

         Until September 2013, Pat Harris, a Caucasian female, was the director of both the main hospital lab and the Outreach Lab. In September 2013, Joe Riley, Jackson's CEO, separated the Outreach Lab from the hospital's main lab. Harris remained as the supervisor of the main lab, and she was no longer responsible for the Outreach Lab. At around the same time, Jackson promoted Michael Ritzus to Vice President of Physician Services, and he was placed in charge of the Outreach Lab. Ritzus was Nickson's supervisor. He asked Nickson to serve as the interim Outreach Lab Manager in addition to her position as the Business and Sales Manager. She initially agreed but, in December 2013, she asked him to hire an Outreach Lab Manager and allow her to return solely to her position as the Business and Sales Manager. Ritzus and Nickson interviewed candidates, and Jackson hired Patricia Morrow as the Outreach Lab Manager.

         According to Nickson, Ritzus excluded her from meetings, reassigned her job duties to other employees, called her “incompetent, ” mistreated her, used profanity in speaking to her, and caused her to feel intimidated. Doc. 26-2 at 24-35. On December 16, 2013, Nickson approached the human resources director, Gilbert Darrington, and they had a discussion about Nickson's relationship with Ritzus, her pay, and her interest in being promoted to a position as the director of the Outreach Lab. See id. at 24-25. Nickson also discussed her perception of Ritzus' treatment of her with Harris. See Doc. 26-8 at 5. On March 6, 2014, Nickson sent Ritzus an email to request that she be placed on leave due to job-related stress, and she wrote that the cause of her stress was largely due to his treatment of her. See Doc. 26-8 at 3.

         Nickson testified at her deposition that she believes Ritzus' actions were motivated by racial animus, see Doc. 26-2 at 26, 32-33, 35, but there is no evidence of record that the plaintiff complained to anyone at Jackson that Ritzus or anyone else was discriminating against her on the basis of her race before she filed her charge of discrimination with the EEOC on March 11, 2014. See Doc. 19 at 65. Also, Nickson alleges in her complaint that she “made a complaint to human resources in December 2013 about the intimidating and harassing treatment she was receiving from Mr. Ritzus, ” but she does not allege in that pleading that his treatment of her was based on her race or that she communicated to human resources that she was being mistreated by Ritzus because she is African-American. Doc. 1 at 3. In short, there is neither any allegation nor any evidence that Nickson alerted Jackson, or that decision makers at Jackson had knowledge, that she thought Ritzus or anyone else had discriminated against her because of her race prior to March 11, 2014.

         On that date, Nickson filed with the EEOC a charge of race discrimination against Jackson. See Doc. 19 at 65. The EEOC mailed Jackson a copy of a notice and charge of discrimination on March 20, 2014. See Doc. 19 at 71. Because these were addressed to someone who no longer worked for Jackson, a mail clerk removed the documents from the envelope, placed all documents except for the charge of discrimination into another envelope marked “Return to Sender, ” and sent the envelope to the EEOC. See Doc. 19 at 71; Doc. 26-12 at 4. The EEOC received the returned mail on March 28, 2014. See Doc. 19 at 71. It re-sent the notice and charge of discrimination, which Jackson received on April 10, 2014. See Doc. 26-12 at 2.

         On March 31, 2014, Jackson notified Nickson that the position of Business and Sales Manager was being eliminated, effective immediately, and Jackson terminated her employment. After Jackson eliminated Nickson's position, she filed a second charge of discrimination with the EEOC on May 14, 2014, in which she alleged that Jackson retaliated against her by terminating her employment because of her March 31, 2014 charge.

         Jackson sold the Outreach Lab in June 2015.


         I. Nickson's Claims and Motion to Dismiss

         The plaintiff filed her complaint pro se.[4] On June 17, 2016, attorney Norman Hurst entered an appearance on Nickson's behalf. See Doc. 16. Mr. Hurst did not file a motion for leave to file an amended complaint on his client's behalf. Nickson's own complaint complies with Federal Rules of Civil Procedure 8(a), and it clearly asserts Title VII disparate treatment claims for (1) failure to promote her to the positions of (a) Vice President of Physician Services and (b) Director of the Outreach Lab, (2) unequal pay, and (3) termination; and Title VII retaliation claims based on Jackson's (1) failure to promote her to the position of director after she complained about Ritzus, and (2) termination of her employment. See Doc. 1. Also, Nickson alleges that she complained to human resources about “the intimidating and harassing treatment she was receiving from Mr. Ritzus.” Doc. 1 at 3. Viewed under the less stringent standard applied to pro se pleadings, Nickson has arguably asserted a disparate treatment claim as to the terms and conditions of her employment based on allegedly discriminatory actions by her supervisor, Ritzus. The plaintiff's complaint is pled so that, either under the less stringent standard reserved for pro se litigants or the higher standard for pleadings drafted by attorneys, the aforementioned are the plaintiff's only claims. See Fed. R. Civ. P. 8(a) (a complaint must set out the plaintiff's claims for relief). Jackson moves for summary judgment in its favor on all of Nickson's claims.

         Nickson moves “to dismiss all claims not specifically addressed” in her opposition to Jackson's motion for summary judgment. Doc. 26 at 1. In that filing, Nickson argues that Jackson has a “pattern and practice of low pay, eliminating positions and restructuring when it relates to African-Americans Outreach Business and Sales Managers”; that Jackson's assertion that there were quality control problems in the Outreach Lab are a ruse to mask the discriminatory promotion of Ritzus to the position of Vice President instead of Nickson; and that Jackson terminated her employment as retaliation for her opposing race discrimination and participating in the protected activity of filing an EEOC charge. See Id. at 2-10.

         Regarding Nickson's first argument in opposition to Jackson's motion for summary judgment, Nickson did not assert a claim for pattern and practice discrimination in her complaint. A plaintiff cannot amend a complaint through an argument in a brief opposing summary judgment. See Hall v. Dekalb Cty. Gov't, 503 F. App'x 781, 786 (11th Cir. 2013). Thus, a pattern and practice discrimination claim is not properly before the court, and this claim has not been considered. In the alternative, even had Nickson properly asserted such a claim, it would not survive summary judgment. “There are two theories of intentional discrimination under Title VII: disparate treatment and pattern or practice discrimination. Disparate treatment claims require proof of discriminatory intent either through direct or circumstantial evidence.” E.E.O.C. v. Joe's Stone Crab, Inc., 220 F.3d 1263, 1286 (11th Cir. 2000). “In contrast, a pattern and practice claim either may be brought by the EEOC if there is reasonable cause to believe that any person or group of persons is engaged in a pattern or practice of discrimination … or by a class of private plaintiffs[.]” Id. (internal citations and marks omitted). This is not a class action lawsuit, nor do the allegations of plaintiff's complaint lend themselves to class treatment. Thus, Nickson cannot maintain a pattern or practice claim as a matter of law.

         As to Nickson's motion to dismiss, she does not make any arguments in opposition to summary judgment as to her disparate treatment claims for Jackson's failure to promote her to the position of Director of the Outreach Lab or her termination from employment. Nickson also does not reference or offer any argument to support a claim of race discrimination or harassment based on Ritzus' conduct. In addition, Nickson is silent as to her retaliatory failure to promote claim. See Doc. 26 at 6-10. Her motion to dismiss will be granted as to these claims.

         In any event, Nickson abandoned any claim that she did not directly address in her opposition to Jackson's motion for summary judgment. See Resolution Trust Corp. v Dunmar Corp., 43 F.3d 587, 599 (11th Cir. 1995) (noting that “grounds alleged in the complaint but not relied upon in summary judgment are deemed abandoned”); Floyd v. Home Depot U.S.A., Inc., 274 F. App'x 763, 765 (11th Cir. 2008). Jackson is entitled to summary judgment on those claims.

         For reasons that are not made clear, Nickson appears to argue against Jackson's motion for summary judgment as though she has not asserted disparate treatment claims for failure to promote her to the job of Vice President of Physician Services and for unequal pay; rather, she only argues in support of those theories of discrimination as though they were pled as pattern and practice discrimination claims. As discussed above, Nickson has no pattern and practice claims. Nevertheless, despite the fact that Nickson makes only cursory arguments in her opposition brief to support her disparate treatment promotion and pay claims, those passing references cause the court to conclude that plaintiff did not intend to dismiss her disparate treatment claims. Thus, the court will not grant her motion to dismiss those disparate treatment claims. Also, Nickson opposes summary judgment on her claims for retaliatory termination. Those claims will not be dismissed pursuant to Nickson's motion.

         Accordingly, the plaintiff's claims remaining before the court for consideration on Jackson's motion for summary judgment are (1) a disparate treatment race discrimination claim for failure to promote Nickson to the position of Vice President of Physician Services for which Ritzus was hired, (2) a ...

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