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Johnson v. Nebraska Methodist Hospital

United States District Court, D. Nebraska

August 4, 2016

CURTIS JOHNSON, an individual, Plaintiff,


          ROBERT F. ROSSITER, JR. United States District Judge.

         This matter is before the Court on the Motion for Summary Judgment (Filing No. 32) submitted by the Defendant The Nebraska Methodist Hospital (“Nebraska Methodist”). For the reasons stated below, the motion will be granted.

         I. BACKGROUND

         A. Plaintiff’s Claims

The Complaint sets forth the following claims:
1. Nebraska Methodist discriminated against Plaintiff Curtis Johnson (“Johnson”) on the basis of race and color in violation of Title VII of the Civil Rights Act of 1964, as amended (“Title VII”), 42 U.S.C. § 2000e-2;
2. Nebraska Methodist discriminated against Johnson on the basis of race and color in violation of the Nebraska Fair Employment Practice Act (“NFEPA”), Neb. Rev. Stat. § 48-1104;[1]
3. Nebraska Methodist retaliated against Johnson in violation of the anti-retaliation provisions of Title VII, 42 U.S.C. § 2000e(3)(a);[2] and
4. Nebraska Methodist retaliated against Johnson in violation of the NFEPA, Neb. Rev. Stat. § 48-1114.

         Johnson’s claims can be boiled down to the following:

1. Race and color discrimination based upon unfair discipline and termination;
2. Race and color discrimination based upon three failed requests by Johnson to transfer to day-shift positions; and
3. Retaliation for having filed an internal grievance regarding failed requests for transfer.

         Nebraska Methodist seeks summary judgment on each of these claims.

         B. Uncontroverted Facts

         Unless otherwise noted, the following facts were presented in the parties’ briefs and supported by pinpoint citations to admissible evidence in the record. The parties have admitted these facts, or have not properly controverted them[3] as required by NECivR 56.1[4] and Fed.R.Civ.P. 56.

         Nebraska Methodist is a non-profit corporation with its principal place of business in Omaha, Nebraska. Nebraska Methodist hired Johnson, a black male, on or about December 13, 2010, to work as a Security Officer primarily at Methodist Hospital, but also at Nebraska Methodist’s Women’s Hospital, and sometimes at Nebraska Methodist’s College of Nursing. Johnson began working full time on the night shift on March 24, 2011, and continued in that capacity until November 8, 2013. On November 8, 2013, Johnson was transferred, at his request, to a shift working 6:00 a.m. to 2:30 p.m. three days a week and 2:00 p.m. to 10:30 p.m. two days a week.

         The written job description for the position of Security Officer at Nebraska Methodist required that Security Officers obtain clearance from the Nuclear Regulatory Commission (“NRC”) to be able to work in Methodist Hospital-Johnson’s main duty station. In order to obtain such clearance, an employee must be continually found to be “trustworthy and reliable.” Security Officers are required by Nebraska Methodist to have this designation for a number of reasons, including the fact that they have access to secured data, systems, and equipment governed by or related to the NRC and the Nebraska Department of Health and Human Services. Maintenance of this “trustworthy and reliable” designation is, according to the Job Description, a stated function of the job as a Security Officer. Johnson admits knowing this clearance was necessary for his job.

         Andrew Whiteing (“Whiteing”), a white male, directly supervised Johnson as the Team Leader until April 29, 2013.[5] On or about April 29, 2013, another Team Leader, Jeffery Farmer (“Farmer”), a black male, became Johnson’s direct supervisor. Johnson’s position included following the direction of the Lead Security Officer, Ron Ware (“Ware”), a black male.

         In a performance evaluation Whiteing completed for Johnson dated March 21, 2013 (Employee Engagement Rating), Johnson received ratings of either “fair” or “good” on a scale of 1-4 (1 - “poor”, 2 - “fair”, 3 - “good”, 4 - “very good”). Johnson does not dispute the fairness or accuracy of the March 21, 2013, evaluation. On the same date of his evaluation, Johnson received a “Moving Organizational Performance Employee Conversation” which specifically addressed performance concerns, including Johnson being “slow to respond to calls to back up fellow officers, ” as well as failing to follow the uniform policy, failing to complete required reports, and other issues. That document also informed Johnson of the need to respond to security calls in a more expeditious manner. In addition, the document stated Johnson needed to improve his attitude and any further issues with patients or co-workers after March 21, 2013, would result in disciplinary action.

         In the midst of these performance issues and counseling, Farmer offered Johnson additional training to attempt to improve his performance and to allow him to obtain a certification by the International Association of Healthcare Safety and Security. Farmer provided some books to Johnson relating to the course, but Johnson eventually declined that offer of training.

         In or about October 2013, Johnson asked to be moved to the day shift. Linda Moore (“Moore”), a black female Team Lead Security Officer who had worked with Johnson, told the decision makers Johnson would not be a good fit for that position. Tom Pacura (“Pacura”), a white male, was moved to an open day shift rather than Johnson due to Moore having reported that Johnson lacked communication skills and seemed to lack motivation.

         On December 27, 2013, Farmer issued a “Misconduct Documentation Form” which documented a discussion with Johnson in which he was counseled about telephoning a female employee in the Methodist Health System at her residence. The employee complained she never gave Johnson her name or phone number and she was concerned and frightened about the call. The Documentation Form warned Johnson he would face additional disciplinary action if another incident of that nature occurred.[6]

         In February of 2014, Johnson applied for another open day-shift position. In this instance, Christine King (“King”), a white female, was awarded the position.[7]

         Johnson filed an internal grievance with Nebraska Methodist on or about February 25, 2014, challenging the decisions to award the day-shift positions to Pacura and King. Even though the grievance appeared to complain about the selection of Pacura, in the body of the written grievance, Johnson indicated that he was “fine with” the decision to hire Pacura because Pacura had more seniority than Johnson.

         Susan Maheux (“Maheux”), Director of Employee Relations at Methodist Health Systems, investigated the grievance. Following the completion of the investigation, Maheux met with Johnson on March 7, 2014, and told him her investigation had found the decision to hire King was appropriate because Methodist would benefit from having a female Security Officer on the day shift.[8] For example, if a sexual assault victim was brought to the hospital during the day, a female Security Officer could be present. In addition, Maheux informed Johnson one of the reasons he was not chosen for the day-shift position was due to his ongoing performance issues.

         Maheux then told Johnson that protocol was to send her findings to the Vice Presidents of Integrated Services and Human Resources at Nebraska Methodist as well as the President and Chief Executive Officer (“CEO”) of Methodist Health System for review and that the CEO would then make a final decision. On March 11, 2014, Johnson informed Maheux that he did not want to continue the grievance.[9] Significantly, nowhere in the grievance (or any other communication) did Johnson raise any issues with regard to his race or color being a reason or, even a suspected reason for his non-selection.

         On March 28, 2014, the Emergency Department informed security that a patient was missing-a “Code Adam” (possible child abduction). Ware instructed Johnson to respond immediately and attempt to find the patient. Ware concluded Johnson did not promptly respond to this Code Adam because Ware left the security office after Johnson but Ware actually arrived at the Emergency ...

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