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Lucinda Marie Jenks F/K/A Lucinda Marie Peterson, Personal v. Naples Community

November 7, 2011

LUCINDA MARIE JENKS F/K/A LUCINDA MARIE PETERSON, PERSONAL REPRESENTATIVE FOR THE ESTATE OF DORINE OLSON, PLAINTIFF,
v.
NAPLES COMMUNITY HOSPITAL, INC., AND NCH HEALTHCARE SYSTEM, INC., DEFENDANTS.



OPINION AND ORDER

This Cause is before the Court on Defendants, Naples Community Hospital, Inc. and NCH Healthcare System, Inc.'s Dispositive Motion for Summary Judgment (Doc. 41) filed on May 18, 2011, and the Plaintiff, Lucinda Marie Jenks, as Personal Representative for the Estate of Dorine Olson's Memorandum in Opposition to Defendants' Motion for Summary Judgment (Doc. 47) filed on June 8, 2011. The Defendants move for summary judgment on all claims brought by the Plaintiff. The parties consented to proceed before a United States Magistrate Judge and an Order (Doc. 66) was entered on September 27, 2011 approving the consent.

I. Standard for Summary Judgment

Under FED.R.CIV.P. 56(c) a motion for summary judgment is proper "if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." The burden of establishing the absence of a genuine material fact is on the moving party. Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986), Baby Buddies, Inc. v. Toys R Us, Inc., 611 F.3d 1308, 1314 (11th Cir. 2010) (citation omitted). An issue is "genuine" if there is sufficient evidence such that a reasonable jury could return a verdict for either party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A fact is "material" if it may affect the outcome of the suit under governing law. Id.

Once this burden is met the nonmoving party must "go beyond the pleadings and by her own affidavits, or by the 'depositions, answers to interrogatories, and admissions on file, designate specific facts showing that there is a genuine issue for trial.'" Celotex Corp., 477 U.S. at 324, Rice-Lamar v. City of Ft. Lauderdale, Fla., 232 F.3d 836, 840 (11th Cir. 2000). In order to avoid the entry of summary judgment, a party faced with a properly supported summary judgment motion must come forward with extrinsic evidence, i.e., affidavits, depositions, answers to interrogatories, and/or admissions, which are sufficient to establish the existence of the essential elements to that party's case, and the elements on which that party will bear the burden of proof at trial. Celotex, 477 U.S. at 322, Hilburn v. Murata Elecs. N. Am., Inc. 181 F.3d 1220, 1225 (11th Cir. 1999). When the nonmoving party fails to make a sufficient showing of an essential element of the case to which the nonmoving party has the burden of proof, the moving party is entitled to a judgment as a matter of law. Anderson, 477 U.S. 248.

In making this determination, the Court must view all of the evidence and draw all reasonable inferences in a light most favorable to the non-moving party. Scott v. Harris, 550 U.S. 372, 378, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007); Tana v. Dantanna's, 611 F.3d 767, 772 (11th Cir.2010). The Court does not weigh conflicting evidence or make credibility determinations. Hilburn, 181 F.3d at 1225 (11th Cir. 1999). "If the record presents factual issues, the court must not decide them; it must deny the motion and proceed to trial." Tullius v. Albright, 240 F.3d 1317, 1320 (11th Cir. 2001), citing, Clemons v. Dougherty County, Ga., 684 F.2d 1365, 1369 (11th Cir. 1982).

II. Undisputed Facts for Summary Judgment Purposes

Dorine Olson, the decedent, began her employment with the Defendant, Naples Community Hospital, Inc.*fn1 ("Hospital") from August 20, 1990 through the date of her death on June 12, 2010.*fn2 (Doc. 48, Thigpen Decl. Exh. A, ¶4, 7). Ms. Olson had various non-managerial positions with the Hospital throughout her career there, including Unit Secretary, Certified Nursing Assistant in The Nursing Registry ("TNR"), and Patient Care Technician. (Doc. 48, Thigpen Decl. Exh. A, ¶4,5). In December 2003, Ms. Olson transferred to the non-managerial position of Staffing Assistant, which title was changed to Administrative Assistant in TNR in 2005. (Doc. 48, Thigpen Decl. Exh. A, ¶5). Ms. Olson had received commendations and excellent employee reviews prior to taking her first managerial job as TNR Coordinator. (Doc. 48, Exh. D).

On February 2, 2009, Human Resources at the Hospital received Ms. Olson's request for Family and Medical Leave Act ("FMLA") leave due to her diagnosis of breast cancer. (Doc. 48,Thigpen Decl. Exh. A, ¶6, Doc. 42, Exh. C). Ms. Olson's physician, Joel Grossman, M.D. requested intermittent leave on Ms. Olson's behalf, stating that Ms. Olson had advanced breast cancer and would require leave for chemotherapy and "aggressive treatments." (Doc. 48, Thigpen Decl. Exh. A, ¶6, Doc. 42, Exh. C, FMLA form). On February 4, 2009, the Hospital approved Ms. Olson's FMLA leave. (Doc. 42, Exh. C). Human Resources notified Ms. Olson's supervisors, Barry Hawthorne, the interim Assistant Chief Nursing Officer and Director of TNR, and Linda Gipson, Vice President and Chief Nursing Officer of Ms. Olson's FMLA leave so they could allow her to leave work as needed. (Doc. 48, Thigpen Decl. Exh. A, ¶6). Ms. Olson shared her medical problems with other employees at the Hospital and her diagnosis and treatments were common knowledge of the Hospital staff. (Doc. 48, Thigpen Decl. Exh. A¶6).

Ms. Olson used her FMLA leave as needed throughout the remainder of her employment with the Hospital. (Doc. 48, Thigpen Decl. Exh. A ¶7). Ms. Olson had not exhausted her entitlement to FMLA leave before she passed away in June 2010. (Doc. 48, Thigpen Decl. Exh. A ¶7). Human Resources has no record of Ms. Olson ever complaining that she was unable to use or take leave as needed. (Doc. 48, Thigpen Decl. Exh. A ¶7). Ms. Olson was treated at the Hospital and ultimately passed away there. (Doc. 48, Thigpen Decl. Exh. A ¶7).

In 2009, Barry Hawthorne was the interim Director of TNR at the Hospital. (Doc. 42, Gipson Depo. Exh. 1, p. 8). Linda Gipson, Chief Nursing Officer and Hawthorne's supervisor determined that TNR needed significant "process improvement" at that time. (Doc. 42, Gipson Depo, Exh. 1, p. 8; Doc. 48, Hawthorne Decl. Exh. F, ¶3). Gipson asked Hawthorne to focus on staffing processes and procedures and updating them when needed. (Doc. 48, Hawthorne Decl. Exh. F, ¶3). Hawthorne determined that a new mid-level managerial position in TNR needed to be created, titled "TNR Coordinator" and this position would report directly to him. (Doc. 48, Hawthorne Decl., Exh. F, ¶3, Doc. 42, Gipson Depo. Exh. 1, p. 8). He obtained approval for the position. (Doc. 48, Hawthorne Decl. Exh. F, ¶3). TNR ensures that the right staff in the right quantities is at the right place at the right time throughout the hospital. (Doc. 42, Gipson Depo. Exh. 1 p. 43). TNR Coordinator ensures that the staffing is appropriate to properly care for patients, while at the same time balances the financial requirements of the staffing so as not to overstaff and cause a financial deficit for the Hospital. (Doc. 42, Gipson Depo, Exh. 1, p. 44). It is a managerial position, and was much more challenging than Ms. Olson's prior position as TNR Administrative Assistant. (Doc. 42, Gipson Depo, Exh. 1, p. 44; Doc. 42, Thigpen Decl. Exh. 7. ¶8).

Hawthorne decided to promote Ms. Olson to the new position of TNR Coordinator. (Doc. 48, Hawthorne Decl. Exh. F ¶4). He consulted with Ms. Gipson prior to promoting Ms. Olson. (Doc. 48, Hawthorne Decl. Exh. F ¶4). Ms. Gipson had concerns about promoting Ms. Olson to this position including whether Ms. Olson was a good fit for the increased responsibilities of the new position and her other concern was that Ms. Olson had not previously been in a managerial position. (Doc. 42, Gipson Depo. Exh. 1, p. 16; Doc. 48, Hawthorne Decl. Exh. F, ¶4). Hawthorne "campaigned" for the promotion for Ms. Olson truly believing that she could handle the new position, and agreeing to provide supervision, support and education to her. (Doc. 42, Gipson Depo. Exh. 1, p. 16; Doc. 48, Hawthorne Decl. Exh. F, ¶4). Hawthorne did express concerns to Gipson that Ms. Olson may not have had the cognitive ability, the mathematical skills, and the anticipatory skills to be successful in the position because she had never had the opportunity to use these skills in her prior positions. (Doc. 42, Gipson Depo. Exh. 1, p. 16-17). Hawthorne was hopeful that Ms. Olson would be able to handle the new position, and he was going to take her "under his wing and teach her." ((Doc. 42, Gipson Depo. Exh. 1, p. 17).

On March 15, 2009, Ms. Olson was promoted to the new position of TNR Coordinator. (Doc. 42, Thigpen Decl. Exh. 7, ¶8). In accordance with Hospital policies, Ms. Olson began a 90-day introductory/probationary period. (Doc. 42, Thigpen Decl. Exh. 7, ¶9). The purpose of the introductory/probationary period is to determine whether the new employee is a good fit for the position, and whether the employee likes the new job. (Doc. 42, Thigpen Decl. Exh. 7, ¶9). During the probationary period, Hawthorne interacted with Ms. Olson almost every day, and he observed her performance closely. (Doc. 48, Hawthorne Decl. Exh. F, ¶5). Hawthorne found Ms. Olson to be struggling with the position from the outset. (Doc. 48, Hawthorne Decl. Exh. F, ¶6). TNR Coordinator required "flexibility, forethought, and strategic planning" and according to Hawthorne, Ms. Olson never managed to transition to this "higher level functioning." (Doc. 48, Hawthorne Decl. Exh. F, ¶6).

Hawthorne found that Ms. Olson's performance did improve over the 90-day probationary period, but he continued to be concerned that she would not succeed in her new position. (Doc. 48, Hawthorne Decl. Exh. F, ¶7). Hawthorne consulted Thigpen in the Hospital's Human Resources Department about the possibility of extending Ms. Olson's probationary period. (Doc. 48, Hawthorne Decl. Exh. F, ¶7; Doc. 42, Thigpen Decl. Exh. 7, ¶10). Hawthorne told Thigpen that he wanted to continue the probationary period because Ms. Olson was struggling to meet the essential job requirements and he wanted to give her additional time to improve her performance. (Doc. 42, Thigpen Decl. Exh. 7 ¶ 10). Thigpen approved Hawthorne's request for extension of the probationary period, and Ms. Olson's probationary period was extended for an additional 60 days. (Doc. 42, Thigpen Decl. Exh. 7, ¶10).

On June 29, 2009, Hawthorne extended the introductory/probationary period, and met with Ms. Olson to extend the probationary period and review her performance and the areas where she was not meeting the standards of the job. (Doc. 48, Hawthorne Decl. Exh. F, ¶8). Hawthorne did not "sugar coat" the issues and was explicit in setting forth Ms. Olson's deficiencies in her job performance and Hawthorne's expectations for improvement. (Doc. 48, Hawthorne Decl. Exh. F, ¶8)*fn3 . Ms. Olson's Extension of Introductory Period form signed by Hawthorne and Ms. Olson had a check mark on the statement that "[t]his employee has exhibited satisfactory progress and met the requirements in the performance of his/her job description, accountabilities, and standards of behavior." (Doc. 48, Exh. A of Exh. M). Further the box was checked as to "[c]ompleted the skills checklist and department checklist." (Doc. 48, Exh. A of Exh. M). In addition, Hawthorne listed the following areas in the Extension of Introductory Period form in the section "TO BE COMPLETED ONLY IF INTRODUCTORY PERIOD EXTENDED: Accountabilities, performance, and/or standards of behavior requiring further development or improvement."

1. Improve and get ahead of evaluations getting completed ahead of schedule.

2. Develop plan & implement change to staffing office to 24/7. Reassess current work/projects/assignments.

3. Improve system of sec'y [secretary] support for ACNO through self/staffing specialists.

4. Implement education/training/Performance Improvement Plan wi th current team.

5. AcuStaff timeline & plan of action, with ACNO & Nursing leadership team to improve consistency.

Comments: Ms. Olson started the TNR Coordinator 90 days ago and while she has grown and shown improved performance, the true impact of this role is just now solidifying. Some slips (evals, per diem position, staff encounters, etc.) but learning well from each case. These next 60 days need to solidify her performance & on-going success! I'm supportive of Dorine excelling these next 60 days & being successful w/ [with] this role. (Doc. 48, Hawthorne Decl. Exh. F, ¶8; Doc. 48, Exh. A of Exh. M). Ms. Olson received a copy of the Extension of Introductory Period form and showed it to her co-worker Louis LaFemina. (Doc. 42, Louis LaFemina Depo. Exh. 3, p. 28-29).

Shortly thereafter, on July 31, 2009, Hawthorne left the employ of the Hospital. (Doc. 48, Hawthorne Decl. Exh. F, ¶9). Prior to leaving the Hospital, Hawthorne met with Gipson, and the new interim Director for TNR, Melody Bacon. (Doc. 48, Hawthorne Decl. Exh. F, ¶9, 10). Gipson recalls that Hawthorne regretted offering TNR Coordinator position to Ms. Olson because despite his help, he did not feel that she was able to meet the job expectations that the department required. (Doc. 42, Thigpen Depo. Exh. 1, p. 25). Hawthorne told Gipson that he extended Ms. Olson's probation hoping that she could meet the expectations of her new supervisor, but he felt that he had made an error in recommending her. (Doc. 42, Thigpen Depo. Exh. 1, p. 25). He apologized to Ms. Gipson for selecting Ms. Olson for the position as he was afraid that she would never be able to succeed and he would not be at the Hospital "to manage the process through to the end, whatever that ended up being." (Doc. 48, Hawthorne Decl. Exh. F, ¶9).

In his meeting with Bacon, the new interim Director for TNR, Hawthorne told Bacon about Olson's extension of probation. (Doc. 48, Hawthorne Decl. Exh. F, ¶10). Hawthorne told Bacon about the areas where Ms. Olson was deficient, and together they reviewed the Extension of Introductory Period form. (Doc. 42, Bacon Decl. Exh. 5, ¶4). Bacon wanted to ensure that she evaluated Ms. Olson on the areas listed as deficient in the Extension of Introductory Period form.

(Doc. 42, Bacon Decl. Exh. 5, ¶4). When she accepted the position as interim Director for TNR, Bacon knew that Ms. Olson had breast cancer as it was common knowledge at the Hospital, Ms. Olson was open about her diagnosis, and the Hospital had numerous fundraisers and drives for Ms. Olson. (Doc. 42, Bacon Decl. Exh. 5, ¶5).

After taking the interim Director for TNR position, Bacon interacted with Ms. Olson virtually every day. (Doc. 42, Bacon Decl. Exh. 5, ¶7). Bacon found that Ms. Olson was "over her head" meaning that TNR Coordinator position required a person to multi-task and Ms. Olson was unable to keep up with the requirements of the position. (Doc. 42, Bacon Decl. Exh. 5, ¶7). Thigpen knew that Bacon was following Hawthorne's action plan as she supervised Ms. Olson's performance in the specific areas listed by Hawthorne. (Doc. 48, Thigpen Decl. Exh. A, ¶12). Bacon developed a chart to track Ms. Olson's performance on a daily basis. (Doc. 42, Bacon Decl. Exh. 5, ¶8). On this chart, Bacon listed the following areas where Ms. Olson was deficient:

With respect to evaluations, a Unit Secretary had to wait 45 minutes on August 4 after Ms. Olson forgot about her evaluation, and Ms. Olson did not complete the evaluation process until the end of the month, August 25.

With respect to our education and training goals, on August 4, I asked Ms. Olson to schedule staff for cross training on a our electronic Bed Board (a system that shows room occupancy) and on August 5, I asked her to update the evaluation forms for TNR staff and provide me with a list of cross-trained employees (as that assists us with staffing needs throughout the ...


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