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Fail v. University of Alabama Ophthalmology Services Foundation

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

July 20, 2018

JANICE FAIL, Plaintiff,


          John E. Ott, Chief United States Magistrate Judge.

         The court has before it the November 3, 2017 motion for summary judgment filed by Defendant University of Alabama Ophthalmology Service Foundation (“OSF”). (Doc. 9). Pursuant to the court's initial order (Doc. 6), the motion was under submission as of December 8, 2017. After consideration of the briefs and evidence, the motion is due to be granted for the following reasons.


         OSF is a multispecialty ophthalmology practice with clinics located in the Callahan Eye Hospital and several satellite offices around Alabama. (Doc. 11-3 (“Grover Aff.”) ¶ 2). Plaintiff began her employment with OSF in 2005 as an office manager, but resigned in 2007. (Doc. 11-1 (“Pl. Dep.”) at 14-19). In the spring of 2013, she applied for employment with OSF, and in June 2013, OSF hired Plaintiff as the Clinical Coordinator with an annual salary of $44, 000 with the possibility of a $2, 000 performance bonus. (Pl. Dep. at 40-44; Doc. 11-2 at 1; Grover Aff. ¶ 12). Personnel Manager Cassandra Page, an African American female, and then-Operations Manager[1] Rett Grover, a white male, made the decision to hire Plaintiff. (Grover Aff. ¶12; Doc. 11-3 (“Page Aff.”) ¶ 3).

         As the Clinical Coordinator, Plaintiff supervised front office representatives, surgery schedulers, and phone representatives for OSF's seven clinics. (Pl. Dep. at 48). Physicians reported any issues with clerical employees and other office-related concerns, such as an unsatisfactory job by the cleaning crew, to Plaintiff. (Id. at 63-64). She assisted with employee scheduling, kept track of attendance, and filled in for clerical employees as needed. (Id. at 48-49). Plaintiff also monitored call volume and patient flow. (Id. at 49-51). She handled patient complaints about non-medical issues, such as wait time, bills, or co-pays. (Id. at 53).

         OSF steadily expanded its operations during Plaintiff's employment with the addition of multiple new clinics and a rise in patient volume. (Grover Aff. ¶¶ 5-8). Sometime in 2013, OSF decided to integrate its clinics into the Callahan Eye Hospital system to gain financial support for OSF's continued expansion, streamline management services, and better align physician practice and hospital operations. (Id. ¶¶ 9-10). As part of this expansion and integration, Grover decided to restructure OSF's administrative support in the spring of 2014. (Id. ¶¶ 13-14).

         Grover eliminated the Clinical Coordinator position and created a new Lead Office Representative (“LOR”) role. (Id. ¶ 14). With the elimination of this position and the addition of five new LOR positions, the clinics would have an LOR to schedule office employees, monitor attendance, and fill in where needed, instead of one central Clinical Coordinator to do the work for all the clinics. (Id. ¶ 14-15). Grover believed replacing one position with five LORs would provide better administrative support for OSF's operations. (Id. ¶ 15).

         OSF selected five existing employees for the new LOR positions: Jennifer Boudreau Lorino, a white female; Kim Odom, a white female; MacKenzie Rush, a black male; Jacqueline Ward, a white female; and Tiffany Williams, a black female. (Page Aff. ¶ 4). The new LORs absorbed the former Clinical Coordinator responsibilities for their clinics, in addition to the responsibilities they were already handling as front office representatives or surgery schedulers. (Page Aff. ¶ 5). Each LOR received a raise for assuming the additional duties. (Id. ¶ 5). All were paid less than Plaintiff. (Id. ¶ 15; Doc. 11-4 at 7-25).

         Around the same time as this new position was created, in late June 2014, Plaintiff told Cassandra Page, the OSF Personnel Manager, that African-American clerical employees were being unfairly assigned to clinics with heavier workloads. (Pl. Dep. at 73-76). Plaintiff told Page she did not agree with the work assignments and that white clerical employees were being assigned the outlying clinics with less workloads. (Id.) When she tried to change the work assignments, Plaintiff said doctors would complain and the assignments would be returned to the pattern of African Americans at the busiest clinics. (Id.). Page did not tell anyone about Plaintiff's comments. (Page. Aff. ¶ 12).

         A few weeks later, in early July 2014, Page told Plaintiff her position had been eliminated and her employment would be terminated effective July 9, 2014. (Id. ¶ 7). Page was not involved in the decision to eliminate the position and terminate Plaintiff. (Id.). Plaintiff received severance benefits in accordance with OSF's position elimination policy. (Id. ¶ 14; Doc. 11-2 at 4-7).

         Plaintiff filed an EEOC charge on December 18, 2014, alleging discrimination on the basis of his race and retaliation. (Doc. 11-2 at 3). After an investigation, the EEOC dismissed Plaintiff's charge on April 26, 2016, and she timely filed her complaint on July 26, 2016. (Page Aff. ¶ 13; Doc. 1-2 at 6-10).


         Under Federal Rule of Civil Procedure 56(c), summary judgment is proper “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The party asking for summary judgment always bears the initial responsibility of informing the court of the basis for its motion and identifying those portions of the pleadings or filings which it believes demonstrate the absence of a genuine issue of material fact. Id. at 323. Once the moving party has met its burden, Rule 56(e) requires the non-moving party to go beyond the pleadings and by his own affidavits, or by the depositions, answers to interrogatories, and admissions on file, designate specific facts showing there is a genuine issue for trial. See Id. at 324.

         The substantive law identifies which facts are material and which are irrelevant. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). All reasonable doubts about the facts and all justifiable inferences are resolved in favor of the non-movant. See Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1115 (11th Cir. 1993). A dispute is genuine “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson, 477 U.S. at 248. If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted. See id. at 249.


         Plaintiff's complaint states three claims: (1) race discrimination in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 200e, et seq. (“Title VII”) and 29 U.S.C. § 1981; (2) retaliation in violation of Title VII and § 1981; and (3) a violation of the Equal Pay Act, 29 U.S.C. § 206(d) (“EPA”). (Doc. 1-2 at 6-10). After careful review and for the reasons stated below, the court ...

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