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Sharon Lawrence v. Schuylkill Medical Center East

August 14, 2012

SHARON LAWRENCE, PLAINTIFF,
v.
SCHUYLKILL MEDICAL CENTER EAST, ALSO KNOWN AS, SCHUYLKILL HEALTH SYSTEM, DEFENDANT.



The opinion of the court was delivered by: Judge Conaboy

MEMORANDUM

Here we consider Defendant's Motion for Summary Judgment (Doc. 23) filed on May 2, 2012. With this motion, Defendant seeks judgment in its favor on all counts of Plaintiff's First Amended Complaint (Doc. 16). Plaintiff's First Amended Complaint contains claims for sex discrimination, sexual harassment-hostile work environment, and retaliation based on the alleged harassment of a co-worker and Defendant's response to it. (Doc. 16.) For the reasons discussed below, we conclude Defendant's Motion for Summary Judgment (Doc. 28) is properly granted in part and denied in part.

I. Background

Plaintiff Sharon Lawrence ("Plaintiff") is a registered nurse who began working at Good Samaritan Hospital on August 13, 2007. (Doc. 27 ¶¶ 1-2.) She is married and is the mother of three children, ages nine, fourteen, and twenty-two. (Doc. 27 ¶ 1.)

Following a merger, Good Samaritan Hospital became known as Schuylkill Medical Center East ("SMCE" "Defendant" "Hospital").

(Doc. 27 at 1 n.3.) Plaintiff was a float pool nurse working from 11 p.m. to 7 a.m. (Doc. 27 ¶ 2.) Float pool nurses can work on all floors of the Hospital without a regular assignment (id.) which meant that the Hospital could assign Plaintiff to various locations during her regularly scheduled shift based upon need (Doc. 24 ¶ 2; Doc. 26 ¶ 2).

Plaintiff initially worked five eight-hour shifts per week from 11:00 p.m. to 7:30 a.m. (Doc. 24 ¶ 3; Doc. 26 ¶ 3.) Plaintiff had trouble with her sleep cycle on this schedule, and the Hospital accommodated her request to change to two twelve-hour shifts and two eight-hour shifts each week. (Id.) However, Plaintiff also wanted to keep her weekends free and felt that working every-other weekend interfered with her sleep cycle. (Id.)

Susan Curry, SMCE Nursing Director at the time, proposed Plaintiff work three, twelve-hour shifts and one, four-hour shift each week, but Plaintiff wanted to work only seven shifts, rather than eight shifts, per two-week pay period. (Id.) Consequently, Curry again accommodated Plaintiff's desires by allowing her to work three twelve-hour shifts each week and one, eight-hour shift in one week of a two-week pay period. (Id.) Plaintiff normally worked her twelve-hour shifts from 7:00 p.m. to 7:30 a.m. (Doc. 24 ¶ 6; Doc. 26 ¶ 6.)

Plaintiff's working the eight-hour shift in one week (rather than a four-hour shift each week) resulted in a total of 44 hours for that week and would have entitled Plaintiff to overtime. (Doc. 24 ¶ 4; Doc. 26 ¶ 4.) Because Curry could not justify paying Plaintiff overtime to accommodate her schedule, she and Plaintiff agreed Plaintiff would not punch in on the day of her eight-hour shift and four hours would be manually entered into the timekeeping system for each week in the pay period. (Doc. 24 ¶ 5; Doc. 26 ¶ 5.) Of the thirty to thirty-five nurses in the float pool, Plaintiff was the only one with this schedule. (Doc. 24 ¶ 7; Doc. 26 ¶ 7.)

The perpetrator of the workplace harassment underlying this action was co-worker Jeffrey Vaillant who was hired by Defendant as a nurse in March 2009. (Doc. 27 ¶ 6.) Nursing Director Curry had hiring responsibility for nurses. (Doc. 27 ¶ 8.) Kathleen Garber, an Employment Specialist for SMCE, also met with Vaillant before he was hired. (Doc. 27 ¶¶ 18-19.) As part of her review process, Garber received and reviewed a Reference Form from Vaillant's previous employer, Lehigh Valley Hospital ("LVHN"). (Doc. 27 ¶ 20.) The Reference Form indicated that Vaillant was discharged from his employment at LVHN for violation of Hospital policy. (Doc. 27 ¶¶ 14-15.) The form also indicated that Vaillant was disciplined on five occasions during the period August 2007 through August 2008, two of which involved inappropriate conduct, sexual harassment, one for which he was suspended in March 2008, and then a second incident in August 2008 involving inappropriate conduct, sexual harassment, for which he was discharged. (Doc. 27 ¶ 15.)

Garber sent an e-mail to Curry following her interview with Vaillant in which she expressed concern about hiring Vaillant (Doc. 27 ¶ 21), specifically noting that she was hesitant about "what he said about the harassment issue" (Doc. 27-9 at 9). Curry testified that she did not recall Garber expressing any concern about hiring Vaillant. (Doc. 17 ¶ 24.)

Curry had reviewed the LVHN Reference Form before hiring Vaillant (Doc. 27 ¶ 31), and she advised SMCE Human Services Director Martin Treasure that there was an allegation of sexual harassment against Vaillant at LVHN (Doc. 27 ¶ 26). Defendant asserts that the Hospital perceived that Vaillant provided honest and forthright information which addressed these issues. (Doc. 24 ¶ 12.)

According to Curry, the decision to hire Vaillant was made by herself, Treasure, and SMCE Nurse Managers Carol Demcher and Lynn Morgan. (Doc. 27 ¶ 32.) Demcher testified that she interviewed Vaillant but did not know before he was hired about the LVHN sexual harassment charges. (Doc. 27 ¶ 33.)

Plaintiff asserts that Vaillant began making inappropriate sexual comments to her in June 2009 and they continued through the summer. (Doc. 27 ¶ 35.) On August 20, 2009, Plaintiff contacted Curry by telephone to report what she felt was inappropriate conduct by Vaillant. (Doc. 24 ¶ 8; Doc. 26 ¶ 8.) Plaintiff stated that, on one occasion, Vaillant asked Plaintiff if her bra and panties matched. (Doc. 24 ¶ 9; Doc. 26 ¶ 9.) Plaintiff alleges that she also told Curry about other comments Vaillant had made to her, including asking to kiss her, telling her he thought she was attractive, stating "I love the view" as she stooped down, telling her to divorce her husband because her name would sound better with his last name, and stating "I want to be with you, I want to make love to you." (Doc. 24 ¶ 10; Doc. 26 ¶ 10.) Plaintiff also alleges that she told Curry she had heard from co-workers that Vaillant had had a problem at his former Hospital. (Doc. 24 ¶ 11; Doc. 26 ¶ 11.)

During the August 20, 2009, phone call, Plaintiff told Curry that she had already spoken to Vaillant about the conduct. (Doc. 24 ¶ 13; Doc. 26 ¶ 13.) Plaintiff avers that she made the call because her attempts to resolve the problem herself were unsuccessful. (Doc. 27 ¶ 42.) Curry recalls repeatedly asking Plaintiff if she wanted Curry to intervene and Plaintiff indicated she did not want Curry to speak to Vaillant but if she needed Curry to do so, she would let her know. (Doc. 24 ¶ 14.) Plaintiff disputes Curry's recollection, asserting that Curry said she would take care of the situation and speak to Vaillant. (Doc. 27 ¶ 46; see also Doc. 24 ¶ 15; Doc. 26 ¶ 15.) Plaintiff also informed Curry about another alleged situation involving Vaillant. (Doc. 24 ¶ 16; Doc. 26 ¶ 16.) On August 7, 2009, Bridgette Schultz, an SMCE nurse, made a report to Carol Demcher, the nurse manager for the fifth floor or "5 North" unit of the Hospital. (Doc. 24 ¶ 17; Doc. 26 ¶ 17.) Schultz told Demcher that she was scratching a mosquito bite inside her uniform top when she heard another nurse, Becky Kessler, state "Jeff, what are you doing?" (Doc. 24 ¶ 18; Doc. 26 ¶ 18.) Schultz stated that Vaillant was preparing to take a picture with his camera phone and said that he wanted to take a group picture of the staff to show his wife the beautiful women he worked with. (Doc. 24 ¶ 19; Doc. 26 ¶ 19.) Demcher told Schultz she would investigate the incident and that Schultz should notify a supervisor if she felt threatened in any way. (Doc. 24 ¶ 20; Doc. 26 ¶ 20.) Defendant asserts Demcher immediately prepared a written report which she submitted to Curry. (Doc. 24 ¶ 21.) Plaintiff avers there is an undated unsigned report which Demcher testified she prepared but contends the report was not immediately prepared or immediately given to Curry. (Doc. 26 ¶ 21.) Demcher could not verify details of the incident with Kessler. (Doc. 24 ¶¶ 22-23; Doc. 26 ¶ 22-23.) Demcher spoke to Vaillant and he admitted to taking a group photo. (Doc. 24 ¶ 24; Doc. 26 ¶ 24.)

Because Demcher confirmed only that Vaillant had been taking a group photo, Demcher determined that any allegation of sexual harassment was unfounded, and she did not recommend that Vaillant be disciplined. (Doc. 24 ¶ 25; Doc. 26 ¶ 25.) Plaintiff avers the investigation was incomplete and insufficient because Demcher never asked Vaillant to show her the pictures on his camera and Demcher never asked who the other nurses were in the supposed group picture. (Doc. 26 ¶ 25.)

Demcher advised Vaillant that taking pictures in the Hospital was against policy because it could violate patient privacy concerns. (Doc. 24 ¶ 26; Doc. 26 ¶ 26.) Defendant avers that Vaillant was instructed not to repeat the conduct and was told that corrective action would be taken if he did, but Plaintiff contends Demcher did not provide any testimony substantiating this averment. (Doc. 24 ¶ 27; Doc. 26 ¶ 27.) Vaillant did not attempt to take another photo in the Hospital again. (Doc. 24 ¶ 28; Doc. 26 ¶ 28.)

On the evening of September 6, 2009, the Sunday of Labor Day weekend, Plaintiff reported to Rosellen Frantz, the nursing supervisor on the 3:00 p.m. to 11:00 p.m. shift, that Vaillant stated to her "can I get some fries with that shake," and put his hands on her shoulders. (Doc. 24 ¶ 29; Doc. 26 ¶ 29.) Frantz asked Plaintiff to write down what had happened to document her complaint. (Doc. 24 ¶ 30; Doc. 26 ¶ 30.) Plaintiff asked Frantz to have the police remove Vaillant from the Hospital. (Doc. 24 ¶ 31; Doc. 26 ¶ 31.) Frantz told Plaintiff that she should wait for the Hospital administration to investigate the incident when they returned after the Labor Day holiday. (Doc. 24 ¶ 32; Doc. 26 ¶ 32.) Plaintiff returned to work and completed her shift. (Doc. 24 ¶ 33; Doc. 26 ¶ 33.) At the end of her shift, on September 7, 2009, Plaintiff made a written report and submitted it to Janet Costa, the nurse supervisor for the 11:00 p.m. to 7:00 a.m. shift. (Doc. 24 ¶ 37; Doc. 26 ¶ 37.)

Two other nurses, Bridgette Schultz and Crystal Novak, also reported to Frantz on September 6, 2009, that Vaillant had made inappropriate comments to them. (Doc. 24 ¶ 34; Doc. 26 ¶ 34.) Frantz placed written statements from these nurses in a locked mailbox for Curry, and, at the end of her shift at 11:00 p.m. on September 6th, called Curry at home to inform her of the complaints. (Doc. 24 ¶ 35; Doc. 26 ¶ 35.) Curry told Frantz she would investigate the matter and asked Frantz to have everything ready for her when she returned to the office on Tuesday, September 8, 2009. (Doc. 24 ¶ 36; Doc. 26 ¶ 36.)

First thing on the morning of September 8, 2009, Plaintiff called Curry. (Doc. 24 ¶ 38; Doc. 26 ¶ 38.) Plaintiff relayed the information in her complaint, and Curry indicated to Plaintiff that she received written statements and would be reviewing them and investigating the situation. (Doc. 24 ¶ 39; Doc. 26 ¶ 39.) Plaintiff alleges that she also asked Curry how Vaillant would be reprimanded and that Curry stated she could not tell Plaintiff because it would be a HIPAA violation. (Doc. 24 ¶ 40; Doc. 26 ¶ 40.)

Curry told Plaintiff that there would be sexual harassment training from the ground up. (Doc. 24 ¶ 42; Doc. 26 ¶ 42.) Curry also asked Plaintiff what she meant by the last line of her written statement, "I made Sue Curry aware of this problem." (Doc. 24 ¶ 43; Doc. 26 ¶ 43.) Plaintiff indicated she meant that she had shared her concerns with Curry in the past. (Doc. 24 ¶ 44; Doc. 26 ¶ 44.) Defendant asserts that Curry was concerned that Plaintiff's statement incorrectly implied that Curry had failed to act on Plaintiff's prior report when Plaintiff had repeatedly declined Curry's offer to intervene. (Doc. 24 ¶ 45.) Plaintiff disputes Curry's assessment that Plaintiff had declined Curry's offer to intervene when they spoke on August 20, 2009. (Doc. 26 ¶ 45.)

On the morning of September 8, 2009, Curry and Demcher began investigating the complaints, including interviews with Schultz and Novak. (Doc. 24 ¶¶ 46-47; Doc. 26 ¶¶ 46-47.) When information indicated that Vaillant may have made inappropriate comments to another nurse, Melissa Shirey, Demcher also spoke to her on September 8, 2009, and documented the interview. (Doc. 24 ¶ 48; Doc. 26 ¶ 48.) Defendant asserts Shirey stated that Vaillant had made comments to her but she had not reported them because she did not feel threatened. (Doc. 24 ¶ 49.)

On September 8, 2009, Curry also called HR Director Treasure to inform him of the allegations. (Doc. 24 ¶ 50; Doc. 26 ¶ 50.) Treasure asked Curry to ensure that written statements were obtained and that an investigation was conducted as soon as possible. (Doc. 24 ¶ 51; Doc. 26 ¶ 51.)

Curry and Demcher also met with Vaillant on September 8, 2009. (Doc. 24 ¶ 52; Doc. 26 ¶ 52.) Curry questioned Vaillant about the complaints and, with one exception, Vaillant acknowledged that he made the comments at issue. (Doc. 24 ¶¶ 53-54; Doc. 26 ¶¶ 53-54.) Vaillant stated that such comments were "a two-way street" and part of the usual banter on 5 North. (Doc. 24 ¶ 55; Doc. 26 ¶ 55.) Defendant states that Vaillant noted several examples of such comments by female nurses on the unit. (Doc. 24 ¶ 56.) Plaintiff avers the "banter" referred to did not involve her or the other nurses who complained about Vaillant's conduct. (Doc. 26 ¶ 56.) Curry told Vaillant that such conversations were unprofessional and inappropriate, that all such communication must stop immediately, and that any such communication from any employee should be reported. (Doc. 24 ¶ 57; Doc. 26 ¶ 57.) Curry also told Vaillant that the investigation would continue. (Doc. 24 ¶ 58; Doc. 26 ¶ 58.)

After meeting with Vaillant, Defendant reports that Curry spoke to Michelle Ebling, a nurse who was present during one of the examples of "banter" Vaillant had cited. (Doc. 24 ¶ 59; Doc. 26 ¶ 59.) Defendant also reports that Ebling confirmed Vaillant's story and commented "I guess we all have to clean up our act a little bit." (Doc. 24 ¶ 60.)

Curry shared the information she had gathered with Treasure and Chief Nursing Officer Darnell Furer. (Doc. 24 ¶ 61; Doc. 26 ¶ 61.) Curry testified that she followed up with the 5 North staff again to ensure that there was not further inappropriate conversation on the unit. (Doc. 24 ¶ 62.)

Based on the investigation, Curry and Treasure determined that Vaillant had engaged in sexual harassment. (Doc. 24 ¶ 63; Doc. 26 ¶ 63.) Curry, Treasure, and Furer determined that Vaillant would be given a final written warning with a very strong message that if any further behavior of this nature occurred, he would be terminated. (Doc. 24 ¶ 64; Doc. 26 ¶ 64.)

On September 14, 2009, Plaintiff called Curry again. (Doc. 24 ¶ 65; Doc. 26 ¶ 65.) Plaintiff asked Curry how the investigation was going to be resolved. (Doc. 24 ¶ 66; Doc. 26 ¶ 66.) Although the decision regarding Vaillant's discipline had been made at this point, it had not yet been communicated to Vaillant. (Doc. 24 ¶ 67; Doc. 26 ¶ 67.) Plaintiff alleges Curry stated that she could not reveal Vaillant's discipline because of HIPAA. (Doc. 24 ¶ 69; Doc. 26 ¶ 69.) Plaintiff demanded to know if Vaillant was still employed at the Hospital and Curry indicated he was. (Doc. 24 ¶ 70; Doc. 26 ¶ 70.) Plaintiff stated that she was not pleased with the way things were being handled. (Doc. 24 ¶ 71; Doc. 26 ¶ 71.) Plaintiff stated that Vaillant should be fired. (Doc. 24 ¶ 72; Doc. 26 ¶ 72.) Plaintiff also indicated that she did not trust Curry, Demcher, or the Hospital to handle the situation appropriately. (Doc. 24 ¶ 73; Doc. 26 ¶ 73.) Plaintiff states she told Curry she could not trust her because Lawrence and Schultz had reported Valliant's misconduct in August and nothing was done to discipline him, and if something had been done previously, the September 6th incidents would not have happened. (Doc. 17 ¶ 90.) Defendant asserts Curry responded to the lack of trust comment by telling Plaintiff that if she felt strongly that she could not trust the Hospital, then perhaps it is not the place of employment for her. (Doc. 24 ¶ 74.) Plaintiff asserts that Curry said "maybe the Hospital is not the place of employment for you" but not in the context Defendant alleges. (Doc. 26 ¶ 74.) In her deposition testimony, Plaintiff indicates Curry's statement regarding employment at SMCE was made following Plaintiff's statement that she would contact the Hospital president rather than the individual suggested by Curry. (Lawrence Dep. 228:23-229:5 (Doc. 27-2 at 29).) Plaintiff stated that she was going to call John Simodejka, President and CEO of Schuylkill Health. (Doc. 24 ¶ 75; Doc. 26 ¶ 75.) Curry reports she encouraged Lawrence to contact the next appropriate person up the chain of command if she was unhappy with the decision made by her and Demcher. (Doc. 24 ¶ 76.)

On September 14, 2009, Plaintiff called Simodejka's office and left a message with his assistant. (Doc. 24 ¶ 77; Doc. 26 ¶ 77.) Simodejka's assistant forwarded the information to Treasure. (Doc. 24 ¶ 78; Doc. 26 ¶ 78.) On September 15, 2009, Treasure returned Plaintiff's call and left a message for her. (Doc. 24 ¶ 79; Doc. 26 ¶ 79.) Plaintiff returned Treasure's call later that day. (Doc. 24 ¶ 80; Doc. 26 ¶ 80.) Plaintiff and Treasure had a lengthy conversation during which Plaintiff recounted the events involving Vaillant. (Doc. 24 ¶ 81; Doc. 26 ¶ 81.) Plaintiff also expressed to Treasure that she did not want to work with Vaillant. (Doc. 24 ¶ 82; Doc. 26 ¶ 82.)

Defendant asserts Vaillant worked the 3:00 to 11:00 p.m. shift and was assigned only to the fifth floor of the Hospital. (Doc. 24 ¶ 83.) Plaintiff agrees Vaillant was assigned to the fifth floor but adds that is not the only place where Vaillant worked: when the sixth floor had nursing shortages, nurses were pulled from the fifth floor to work on the sixth floor. (Doc. 26 ¶ 83.) Plaintiff objected to working anywhere on the same floor of the building as Vaillant.*fn1 (Doc. 24 ¶ 84.) Treasure told Plaintiff the Hospital could not guarantee she would not work with Vaillant, but that he would look into the matter with the nursing department. (Doc. 24 ¶ 85; Doc. 26 ¶ 85.)

On September 16, 2009, Curry issued Vaillant a final written warning. (Doc. 24 ¶ 86; Doc. 26 ¶ 86.) The warning noted that a thorough investigation had been made regarding complaints about sexually harassing comments and instructed Vaillant that "[e]ffective[] immediately there must be complete cessation of all types of such communication by you to all co-workers." (Doc. 24 ¶ 87; Doc. 26 ¶ 87.) The final written warning referred to an attached copy of the Hospital's sexual harassment policy and warned Vaillant that any "[f]ailure to follow our rules and regulations will lead to the immediate termination of our employment relationship." (Doc. 24 ¶ 88; Doc. 26 ¶ 88.) Treasure testified that Curry and himself determined the discipline to be given to Vaillant and he arrived at that decision in the belief that, while allegations were serious and the comments were made and there may have been one instance of touching, the fact that Vaillant admitted to the complaints and the fact that Curry had informed him she felt Vaillant understood the seriousness of them, a written warning would be appropriate. (Doc. 27 ¶¶ 115-116.)

Defendant asserts there is no evidence that Vaillant sexually harassed any co-worker, including Plaintiff, after receiving the final written warning and never again said anything offensive to Plaintiff. (Doc. 24 ¶¶ 90-91.) Plaintiff contests this assessment based on a complaint she lodged on September 30, 2009, and a complaint lodged at an unspecified time by Lynette, a respiratory therapist who complained to Night Supervisor Yeager that Vaillant had sexually harassed her.*fn2 (Doc. 24 ¶ 90.)

Following the issuance of the final written warning, Curry followed up with the nurses on the 5 North unit, who reported that they had no further issues with Vaillant and were not concerned for their safety. (Doc. 24 ¶ 92; Doc. 26 ¶ 92.) Treasure testified that, after the issuance of the final written warning, "the sexual harassment had stopped, which was the objective." (Doc. 24 ¶ 93.) Plaintiff disputes this for the reasons set out above, adding that Vaillant also subsequently engaged in similar conduct with a patient, inappropriately touching one of his patients in a sexually suggestive way. (Doc. 26 ¶ 93.)

On September 16, 2009, Treasure called Plaintiff and left a message asking her to call him. (Doc. 24 ¶ 94; Doc. 26 ¶ 94.) He also called Frantz to find out whether Vaillant was working that night because of what Plaintiff had asked Treasure during their previous conversation. (Doc. 24 ¶ 95; Doc. 26 ¶ 95.) Treasure asked Frantz to let Plaintiff know that Vaillant was working that night. (Doc. 24 ¶ 95; Doc. 26 ¶ 95.) When Plaintiff arrived for her shift on September 16, 2009, Frantz informed Plaintiff that Vaillant was working that night. (Doc. 24 ¶ 96; Doc. 26 ¶ 96.) Plaintiff subsequently called Treasure on September 16, 2009, expressing both her displeasure that Vaillant had not been terminated and her opinion that Vaillant was not a good nurse. (Doc. 24 ¶ 97; Doc. 26 ¶ 97.)

On September 18, 2009, Lisa Schetrum, patient coordinator, informed Plaintiff that, because of changes to the Kronos timekeeping system, as of October 4, 2009, Plaintiff's eight-hour shift could no longer be manually entered so as to avoid overtime. (Doc. 24 ¶ 98.) Plaintiff adds that this assertion is denied because Treasure advised her that there was no change in the new billing system which would necessitate a scheduling change for Lawrence. (Doc. 26 ¶ 98.) The changes consisted of upgrades made to the existing Kronos timekeeping system. (Doc. 24 ¶ 99; Doc. 26 ¶ 99.)

The changes to the Kronos system were applicable to all employees, not just Plaintiff. (Doc. 24 ¶ 100; Doc. 26 ¶ 100.) Defendant avers that the Hospital offered to allow Plaintiff to split the eight-hour shift into two four-hour shifts to be worked one in each week during any hours of Plaintiff's choosing. (Doc. 24 ¶ 101.) Plaintiff adds that the schedule offered would require her to work one additional day per pay period to work the same number of hours as before and citations to her testimony do not establish that Plaintiff could work any day of her choosing. (Doc. 26 ¶ 101.) Plaintiff chose not to work a second four-hour shift.*fn3

(Doc. 24 ¶ 102.) Plaintiff claims that she chose not to work a second four-hour shift to reduce the chance she might work with Vaillant. (Doc. 24 ¶ 103; Doc. 26 ¶ 103.) However, Plaintiff chose to continue working the same schedule even after Vaillant's employment at the Hospital ended. (Doc. 24 ¶ 104; Doc. 26 ¶ 104.)

Plaintiff also claims that Curry admitted at her deposition that her instruction to Plaintiff to work an eight-hour shift and fill out a time slip manually to avoid receiving overtime pay was a practice which violated the Hospital's policy by not appropriately reporting hours worked. (Doc. 27 ¶ 159.) Regarding changing Plaintiff's hours manually, Plaintiff avers that Curry confirmed at her deposition that she was willing to violate the Hospital's policy before Plaintiff reported the sexual harassment but not after and Curry never went to anyone to see if there was a way to accommodate her previous schedule. (Doc. 27 ¶¶ 161-62.)

On September 19, 2009, Plaintiff called Treasure and stated that she felt the "change" in her schedule was retaliatory. (Doc. 24 ¶ 105; Doc. 26 ¶ 105.) In her deposition, when asked why she believed the schedule change was retaliatory, Plaintiff answered: "Because I was pursuing all of my options of trying to have an issue, my concerns resolved." (Doc. 24 ¶ 106; Doc. 26 ¶ 106.) Plaintiff alleges that Treasure stated the schedule change "sounds like retaliation." (Doc. 24 ¶ 107; Doc. 26 ¶ 107.) Defendant adds that Treasure did not make this statement and the statement is not supported by admissible evidence. (Doc. 24 ¶ 107.) Plaintiff claims she asked Treasure "if it was true that there is a new Kronos system taking effect" and that "he said no, that that Kronos system has been in effect for some time now." (Doc. 24 ¶ 108; Doc. 26 ¶ 108.) Plaintiff and Treasure also talked about setting up a group meeting to discuss accommodating Plaintiff's desire not to work with Vaillant. (Doc. 24 ¶ 109; Doc. 26 ¶ 109.)

On September 30, 2009, Curry and Demcher conducted sexual harassment training during the 5 North staff meeting. (Doc. 24 ¶ 110; Doc. 26 ¶ 110.) Curry made clear that inappropriate comments were to stop immediately. (Doc. 24 ¶ 111; Doc. 26 ¶ 111.)

On September 30, 2009, Plaintiff and Treasure spoke again by phone. (Doc. 24 ¶ 113; Doc. 26 ¶ 113.) Plaintiff informed Treasure that on that date Vaillant had commented to her that they were wearing the same color uniform and that she felt this was sexual harassment.*fn4 (Doc. 24 ¶ 114; Doc. 26 ¶ 114.) Plaintiff alleges that Treasure agreed that a mere comparison of the color of their clothing was sexual harassment. (Doc. 24 ¶ 115; Doc. 26 ¶ 115.) Defendant adds that Plaintiff's allegation is false and is not supported by admissible evidence. (Doc. 24 ¶ 115.) Treasure testified that he and Curry concluded that the clothing comments did not rise to the level of sexual harassment. (Doc. 27 ¶ 125.)

In October 2009, Plaintiff's husband called the Hospital at 2:00 a.m. looking for Plaintiff. (Doc. 24 ¶ 119; Doc. 26 ¶ 119.) Bridgette Yeager, the nursing supervisor for the 11:00 p.m. to 7:00 a.m. shift, answered the phone and told Plaintiff she had a phone call from her husband. (Doc. 24 ¶¶ 118-119; Doc. 26 ¶¶ 118-119.)

After taking the phone call, Plaintiff told Yeager she had to leave because there was an emergency at home. (Doc. 24 ¶ 119; Doc. 26 ¶ 119.) Yeager stated, "F-ing men drive me crazy. And what the F are you going to do about it." (Doc. 24 ¶ 119; Doc. 26 ¶ 119.)

In October 2009, other nurses told Plaintiff that Yeager said she had confronted Plaintiff and told Plaintiff to "shut [her] Fing mouth." (Doc. 24 ¶ 120; Doc. 26 ¶ 120.) That confrontation never actually occurred. (Id.) Plaintiff told Schetrum and Demcher what the other nurses had told her and that the incident did not happen. (Id.) Plaintiff asked Schetrum to convey the information to Curry. (Id.) Plaintiff also asked for a meeting between herself, Curry, Schetrum, Demcher, and Yeager. (Id.) Schetrum conveyed the information to Curry. (Doc. 24 ¶ 121; Doc. 26 ¶ 121.) Defendant asserts that Curry discussed the issue with Yeager, and concluded that, while profanity had been used by Yeager, it was not directed at Plaintiff. (Doc. 24 ¶ 122.) Plaintiff denies this was an accurate conclusion. (Doc. 26 ¶ 122.) The meeting requested by Plaintiff did not occur because of difficulties scheduling the meeting with all of the attendees requested by Plaintiff. (Doc. 24 ¶ 123; Doc. 26 ¶ 123.)

Between September 16, 2009, and November 1, 2009, Plaintiff and Vaillant did not work on the same floor of the Hospital at the same time. (Doc. 24 ¶ 124; Doc. 26 ¶ 124.) On November 1, 2009, Plaintiff was assigned to work on the fifth floor of the Hospital because the unit was very busy that night. (Doc. 24 ¶ 125; Doc. 26 ¶ 125.) Plaintiff refused to work anywhere on that 43-bed unit. (Doc. 24 ¶ 126; Doc. 26 ¶ 126.) Frantz re-assigned Plaintiff to the emergency room. (Doc. 24 ¶ 127; Doc. 26 ¶ 127.)

When Plaintiff received the schedule which had her working on the same floor as Vaillant, she became very upset and sought medical treatment. (Doc. 27 ¶ 137.) Plaintiff's doctor advised her to take a leave of absence. (Doc. 27 ¶ 137.) Plaintiff was out of work for approximately two weeks "as the thought of putting herself in a dangerous situation in a hyper vigilant state emotionally and mentally caused her great fear." (Doc. 27 ¶ 137.) Plaintiff's primary care physician also referred her to a psychologist, Dr. Allan Rodgers (Doc. 24 ¶ 130; Doc. 24 ¶ 130; Doc. 27 ¶ 138). Plaintiff first saw Dr. Rodgers on November 6, 2009, and he prescribed Zoloft, a medication she had not taken before. (Doc. 27 ¶ 138, 140.) Dr. Rodgers classified Plaintiff as a somewhat "obsessive person," described as a person who "likes order, likes to do things rights, has a degree of perfectionism and takes a great deal of pride in what they do." (Doc. 27 ¶ 143.) Plaintiff continued to treat with Dr. Rodgers through November 11, 2011. (Doc. 27 ¶ 147.)

In early November 2009, Plaintiff retained an attorney, and on November 16, 2009, filed a charge of discrimination with the Equal Employment Opportunity Commission ("EEOC"). (Doc. 24 ¶ 128; Doc. 26 ¶ 128.) Plaintiff attempted to convince Schultz to file an EEOC charge, but Schultz told Plaintiff she did not want any involvement in that and she was comfortable with what was happening at the Hospital. (Doc. 24 ¶ 129; Doc. 26 ¶ 129.)

On November 19, 2009, Plaintiff met with Curry, Treasure, and Human Resources Manager, Thomas McPhillips, regarding her work assignments. (Doc. 24 ¶ 131; Doc. 26 ¶ 131.) Plaintiff was told that the Hospital would attempt to accommodate her desire not to work on the same floor as Vaillant, but that, given the small size of the facility and the needs of the nursing units, they could not guarantee that Plaintiff would never be on the same floor as Vaillant. (Doc. 24 ¶ 132; Doc. 26 ¶ 132.) Plaintiff was also told that there could be potentially serious consequences if she refused to perform her assignment. (Doc. 24 ¶ 133; Doc. 26 ¶ 133.) Curry offered Plaintiff a permanent position on the 6 North unit on the sixth floor of the Hospital. (Doc. 24 ¶ 134; Doc. 26 ¶ 134.) Plaintiff refused that alternative. (Doc. 24 ¶ 135; Doc. 26 ¶ 135.) Plaintiff claims that she was uncomfortable with this alternative because, if the 5 North unit was fully staffed and the 6 North unit was short, Vaillant might be asked to temporarily cover work on the sixth floor. (Doc. 24 ¶ 136; Doc. 26 ¶ 136.) Plaintiff adds that her testimony establishes that there were in fact occasions when Vaillant had been relocated to the sixth floor. (Id.)

Also on November 19, 2009, Plaintiff was scheduled to work on 5 North at 11:00 p.m., which is when Vaillant's shift at that location ended. (Doc. 24 ¶ 137; Doc. 26 ¶ 137.) Rather than listen to the taped report on 5 North, Plaintiff listened to it on another floor to avoid contact with Vaillant, and did not report to the fifth floor until Vaillant had physically left. (Doc. 24 ¶ 137; Doc. 26 ¶ 137.)

Following the issuance of the final written warning to Vaillant, Plaintiff never again worked on the fifth floor of the Hospital while Vaillant was working on that floor. (Doc. 24 ¶ 138; Doc. 26 ¶ 138.)

During the relevant time period at the Hospital, the nursing staff going off-shift would tape-record audio reports regarding patients for the oncoming staff to listen to at the beginning of their shift. (Doc. 24 ¶ 139; Doc. 26 ¶ 139.) If Plaintiff was assigned to 5 North at 11:00 p.m., following Vaillant's shift, staff would bring the tape recorders to a different floor of the Hospital where Plaintiff would listen to report until Vaillant had physically left the building. (Doc. 24 ¶ 140; Doc. 26 ¶ 140.)

On January 27, 2010, the Hospital became aware of allegations that Vaillant had been involved in a romantic relationship with a woman that began while she was a patient. (Doc. 24 ¶ 141; Doc. 26 ¶ 141.) Vaillant denied many of the allegations. (Id.) However, the Hospital determined that he would ...


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