United States District Court, N.D. Alabama, Northwestern Division
REBECCA D. JAGGARS, Plaintiff,
FLORENCE NURSING AND REHABILITATION CENTER, LLC Defendant
MEMORANDUM OPINION AND DISMISSAL ORDER
N. JOHNSON JR. UNITED STATES MAGISTRATE JUDGE
civil action proceeds before the court on Defendant's
Motion for Summary Judgment. (Doc. 18). In its Motion,
Defendant argues that because Plaintiff has no evidence to
support her claims of race, age, and disability
discrimination and retaliation, and there exist no genuine
issues of material fact, Defendants are entitled to summary
judgment. Based upon the following discussion, the court
GRANTS the motion.
to the Federal Rules of Civil Procedure, “[t]he 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. Rule 56(a). Defendant, as the party seeking
summary judgment, bears the initial responsibility of
informing the district court of the basis for its motion, and
identifying those portions of the pleadings, depositions,
answers to interrogatories, and admissions on file, together
with the affidavits, if any, which it believes demonstrates
the absence of a genuine issue of material fact. Clark v.
Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir.
1991) (quoting Celotex Corp. v. Catrett, 477
U.S.317, 323 (1986)).
non-moving party demonstrates a genuine issue of material
fact by producing evidence by which a reasonable fact-finder
could return a verdict in its favor. Greenberg v.
BellSouth Telecomms., Inc., 498 F.3d 1258, 1263 (11th
Cir. 2007) (citation omitted). In reviewing whether the
non-moving party has met its burden, the court must stop
short of weighing the evidence and making credibility
determinations; one should credit the non-movant's
evidence and draw all justifiable inferences in its favor.
Tipton v. Bergrohr GMBH-Siegen, 965 F.2d 994, 998-99
(11th Cir. 1992) (internal citations and quotations omitted).
However, speculation or conjecture cannot create genuine
issues of material fact. Cordoba v. Dillard's,
Inc., 419 F.3d 1169, 1181 (11th Cir. 2005). A
“mere scintilla of evidence” in support of the
non-moving party also cannot overcome a motion for summary
judgment. Young v. City of Palm Bay, 358 F.3d 859,
860 (11th Cir. 2004) (citation omitted).
undersigned sets forth the following facts for the summary
judgment determination. On or about April 26, 2013, Defendant
Florence Nursing and Rehabilitation Center, LLC (FNRC)
employed Plaintiff Rebecca D. Jaggars as a Licensed Practical
Nurse (LPN) at its location in Lauderdale County, Alabama.
Plaintiff is Caucasian and Defendant hired her approximately
seven months prior to her fortieth birthday. During
Plaintiff's employment, Jennice Crowell served as the
facility's Executive Director and Linda Graves served as
the facility's Director of Nursing Services.
Plaintiff's primary job duties consisted of administering
medication to FNRC residents in a manner consistent with
physicians' orders and completing paperwork pertaining to
the medication dispensed. As an LPN, Plaintiff reported
directly to Unit Manager Peggy Darby and Ms. Graves.
required all LPNs, including Plaintiff, to comply with
specific paperwork requirements. When administering
medication, FNRC nurses relied on the Medical Administration
Records (MARs), which served as the legal record of
medication for each resident. Each resident has a MAR that
reflects all medications prescribed to the resident and the
times that the resident receives each medication. Federal
regulations require nurses to sign the MAR after
administering the medication, and each signature communicates
to the nurses in the facility and other reviewing entities
that the resident received medication consistent with a
physician's orders. During her employment, FNRC counseled
Plaintiff on at least one occasion for poor documentation,
and Plaintiff's supervisor noted in her performance
evaluation that her MAR documentation frequently had
“holes” where she neglected to indicate when a
patient received his or her medication.
August 19, 2014, FNRC sent resident RT to Lake Point
Behavioral Health for evaluation and treatment. Under
standard procedure, FNRC sent RT's medical records to
Lake Point Behavioral Health. That evening, a physician from
Lake Point contacted Ms. Crowell to inform her of an
inconsistency that he discovered while comparing RT's
FNRC medical records to the standard pharmacology screen
performed on RT upon his admission to Lake Point.
Specifically, the physician stated that RT's records from
FNRC indicated that RT received Norco (a narcotic pain
medication) and Ativan (an anxiety medication) on the day of,
and prior to, RT's admission at Lake Point, but RT's
Lake Point pharmacology screen produced a negative result for
those medications. FNRC expressed concern that these
differing results indicated potential medication diversion,
and it commenced an investigation that same night.
Krystle Duncan, and Jennifer Ward were the three nurses who
most recently administered medications to RT during the
period in question. Both Duncan and Ward are Caucasian and
under 40 years old. RT's physician prescribed both drugs
to RT “PRN”, meaning that RT only received these
drugs when needed. For PRN narcotics, such as the pain
medication Plaintiff allegedly administered to RT on the
evening of August 18, 2014, the nurses must also document
this administration as follows: (1) on a narcotics sheet,
confirming that the nurse took the medication from the
medicine cart and administered it to the resident; (2) on a
PRN sheet, indicating that the resident received a PRN
medication, and (3) on the resident's MAR. In addition,
the nurse must document other information about the resident,
such as the resident's pain level that justifies the need
for a PRN narcotic.
of the investigation, FNRC drug tested Plaintiff, Duncan, and
Ward. Defendant alleges that Plaintiff's and Duncan's
initial drug screens were positive, while Ward's initial
drug screen was negative. However, Plaintiff disputes this
allegation and argues that Defendant informed her that
Plaintiff's initial urine screen was negative. (Pl. Dep.
at 127-28, ll. 19-23, 1-3). Because of the allegedly positive
drug screens, and the role in administering RT's
medication more recently than Ward, FNRC suspended Plaintiff
and Duncan pending investigation. FNRC sent Plaintiff's
and Duncan's drug screens to a lab for confirmation;
Plaintiff's results were negative, while Duncan's
results were positive.
investigation also involved a thorough review of several
residents' medical records, including their narcotics
sheets, PRN sheets, and MARs. Although the investigation did
not reveal any missing medication, Ms. Crowell and Ms. Graves
discovered that both Plaintiff and Duncan committed multiple
serious documentation errors. For example, FNRC prescribed
Norco, a PRN (“as needed”) narcotic, to Resident
GJ. In May 2014, Plaintiff signed the controlled drug record
for Resident GJ nineteen (19) times, which indicated that she
administered Norco to GJ 19 times. However, she only signed
GJ's MAR once in May 2014, and she only documented
GJ's pain for three (3) days that month. Furthermore,
Plaintiff made similar documentation errors in the medical
records of two other residents. Plaintiff does not dispute
these documentation errors, and she understands the nursing
standard of properly documenting resident care, including
medication. Crowell and Graves allege that, because of
Plaintiff's multiple documentation errors, they
terminated Plaintiff's employment. Crowell and Graves
also terminated Duncan's employment, as she had also
committed documentation errors.
November 6, 2014, Plaintiff filed a Charge of Discrimination
with the Equal Employment Opportunity Commission
(“EEOC”). (Compl., Ex. A). In her Charge,
Plaintiff alleged discrimination based on race, age, and
alleged disability, as well as retaliation. (Id.)
The EEOC issued a Notice of Right to Sue on July 1, 2015.
(Compl., Ex. B). On September 24, 2015, Plaintiff filed suit
in the Circuit Court of Lauderdale County, Alabama, alleging
claims of discrimination based on race, age, and disability,
and a claim of retaliation. (Compl.) FNRC removed the action
to this Court on October 26, 2015. (Doc. 1).
Race Discrimination Claim
VII makes it unlawful for an employer “to discriminate
against any individual with respect to [her] compensation,
terms, conditions, or privileges of employment, because of
such individual's race.” 42 U.S.C.
§2000e-2(a)(1). Under Title VII, the plaintiff possesses
the burden of establishing a prima facie case of
employment discrimination. McDonnell Douglas Corp. v.
Green, 411 U.S. 792 (1973).
plaintiff may sustain this burden in any one of three ways:
(1) by presenting direct evidence of discriminatory intent;
(2) by presenting circumstantial evidence of discriminatory
intent through the McDonnell-Douglas test; or (3) by
demonstrating through statistics a pattern of discrimination.
Rioux v. City of Atlanta, Ga., 520 F.3d 1269, 1274
(11th Cir. 2008).
offers circumstantial evidence of race discrimination;
therefore, the court evaluates her discrimination claim
through the burden shifting framework established in
McDonnell Douglas Corp. v. Green, 411 U.S. 792,
802-05 (1973). Under this scheme, the plaintiff must first
establish a prima facie case. Once the plaintiff
establishes a prima facie case, the burden of
production shifts to the defendant to articulate a
legitimate, non-discriminatory reasons for its employment
decision. Rioux at 1275. If the employer carries its
burden of production, the plaintiff must show that the reason
the employer offered is pretext for discrimination.
state a prima facie case for race discrimination,
Plaintiff must show that she (1) was a member of a protected
class; (2) the Defendant subjected her to an adverse
employment action; (3) her employer treated similarly
situated employees more favorably than she; and (4) she was
qualified to do the job. Ashmore v. Sec., Dept. of
Transp., 503 Fed.Appx. 683, 687 (11th Cir. 2013)(citing
Holifield v. Reno, 115 F.3d 1555, 1562 (11th Cir.
1997)). Plaintiff argues in her complaint that Defendant
discriminated against her based on her race. However,
Defendant avers that Plaintiff abandoned this claim by
failing to address it in her response to Defendant's
Motion for Summary Judgment.
Eleventh Circuit has held that the failure of a party to
respond or oppose a pending motion may constitute an
abandonment of the claims at issue in that motion.
See, e.g., Coalition for the Abolition on
Marijuana Prohibition v. City of Atlanta, 219 F.3d 1301,
1326 (11th Cir. 2000)(finding that a party's failure to
brief and argue an issue before the district court renders
the claims abandoned); Hooper v. City of Montgomery,
482 F.Supp.2d 1330, 1334 (M.D. Ala. 2007) (concluding that a
plaintiff's failure to respond to claims in a
defendant's motion to dismiss resulted in dismissal of
those claims as abandoned). As portrayed in Plaintiff's
response, she failed to respond to the Defendant's
arguments against her race discrimination claim; thus, she
neglected to address the merits of Defendant's
contentions regarding that claim. See, e.g.,
Edmondson v. Bd. of Trustees of Univ. of Ala., 258
Fed.Appx. 763, 765 (11th Cir. 2008)(finding that
“grounds alleged in the complaint but not relied upon
in summary judgment are deemed ...