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Kittles v. HealthCare Staffing, Inc.

United States District Court, Southern District of Georgia, Brunswick Division

March 18, 2015

ERICA D. KITTLES, Plaintiff,



Plaintiff Erica Kittles, a black woman employed by Defendant Healthcare Staffing, Inc., complained to her superiors when Anthony Barnett, a black employee the staffing agency had placed at a nursing facility, was terminated from that placement. Plaintiff was fired a short time later. In this action, Plaintiff brings claims for discriminatory termination and retaliation under Title VII and § 1981 against Defendants Healthcare Staffing and its employees, Bonita Mikel and Cindy Ackerman. She also brings a § 1985(3) claim against Defendant Vanessa Shearer, Human Resources Coordinator at the nursing facility that fired Barnett, along with Defendants Healthcare Services, Mikel, and Ackerman. Finally, Plaintiff brings a state law claim for intentional infliction of emotional distress, and a claim for attorney's fees. Defendant Shearer has filed a motion for summary judgment (Dkt. no. 29), as have Defendants Healthcare Staffing, Mikel, and Ackerman (Dkt. no. 31).[1]


Plaintiff Erica D. Kittles was employed as a staffing coordinator by Defendant Healthcare Staffing ("HCS"). Dkt. no 29-3 ("Kittles Dep."), 39:1-4. HCS is a Georgia for-profit corporation, and Plaintiff worked in its Brunswick office. Dkt. no. 1, ¶ 18. As a staffing coordinator, Plaintiff was responsible for attracting potential employees. When potential employees applied for work through the agency, Plaintiff would administer various tests to the employees to measure their aptitude in different nursing-related skills. Kittles Dep. 39:5-25. In addition to the knowledge-based nursing skills tests, Plaintiff would administer the "First Advantage" test, which was designed to test an applicant's personality and integrity. Id. at 39:12-41:6.

All applicants for healthcare-related positions were required to take the First Advantage Test and receive a passing score before they could be considered for employment. Id. at 69:16-20; Dkt. no. 31-1 ("Mikel Decl."), ¶ 9. While the knowledge-based tests could be taken more than once by an applicant, the First Advantage Test was designed to only be taken once. Kittles Dep. 112:8-12. If an applicant were to take the test multiple times, he could manipulate the test. Mikel Decl. ¶ 11. For this reason, the training manual for the First Advantage Test states "under no circumstances will an applicant be allowed to retake the test once it is completed." Id.

Plaintiff admits that she was regularly reminded that the First Advantage Test could not be given to an applicant more than one time, and that she was forwarded an email on February 9, 2012, that made this point. See Dkt. no. 31-2 (HCS Defendants' Statement of Undisputed Facts, or "HCS SUF"), ¶ 15; Dkt. no 42-2 (PL's Resp. to HCS SUF), ¶ 15. She also admits that Hayley Barr, who also worked at HCS's Brunswick office, emailed Plaintiff on her work email account on March 8, 2012, stating:

Just an FYI in case we haven't discussed this, when applicant takes the First Advantage Test we are not allowed to discuss their scores with them and they are not allowed to retake it should they score poorly on it. If they do not score well enough to be considered then we just have to send them a NO HIRE letter.

HCS SUF ¶ 16; PL's Resp. to HCS SUF ¶ 16. However, Plaintiff claims that despite these reminders to only give the First Advantage Test once per applicant, she was frequently instructed by her supervisors to allow some applicants to take the test multiple times. Plaintiff testified, "[w]e were told they could take it once. But if it was somebody that we thought would be a good candidate, we had to get permission from the supervisor [to allow them to retake the test], and that's what I always did." Kittles Dep. 68:23-69:3. Plaintiff says she does not have any written documentation of her asking a supervisor to allow an applicant to retake the First Advantage Test. Id. at 69:11-15.

On July 17, 2012, Plaintiff was given a written warning for poor job performance. Pi's Resp. to HCS SUF ¶¶ 20-22. The warning did not mention anything about allowing applicants to retake the First Advantage Test. Instead, it admonished Plaintiff for excessive absences and substandard job performance, and attributed the poor performance issues to Plaintiff allowing personal matters to interfere with her job duties. HCS SUF ¶ 21. The written warning further stated, in all capital letters:


Id. ¶ 22.

Around the time Plaintiff received this warning, a nurse whom HCS had placed at a nursing facility named Gateway was terminated from his position. Gateway is a public, non-profit, community-based organization created under Georgia law to provide disability services to people with developmental disabilities, mental illness, and addictive diseases. See Dkt. no. 29-1, p. 1; Ga. Code Ann. §§ 37-2-6, 37-2-6.1. Defendant Vanessa Shearer is the Human Resources Director at Gateway. Dkt. no. 29-2, ¶ 4.

Anthony Barnett, the nurse who was terminated from Gateway, is a black male. Because HCS had placed him at Gateway, many of his employment records were kept at HCS. His direct supervisor at Gateway, though, was a woman named Cathy Thompson. Plaintiff had heard from others that Thompson wanted Barnett removed from his position because he was not performing his job correctly. Kittles Dep. 127:5-17. Plaintiff agrees that there is no dispute that "Cathy Thompson was unhappy with [Barnett's] work performance." Kittles Dep. 131:24-135:3. However, Plaintiff believed that there had never been any written complaints or write-ups against Barnett and that no such documents existed in his file. See Kittles Dep. 192:1-193:7. Aside from a conversation she had directly with Barnett after he was terminated, Plaintiff never spoke with anyone at Gateway about how well employees, including Barnett, were performing. Kittles Dep. 118:6-9. Furthermore, she admits that any information she has on whether or not Barnett was performing his job well would be hearsay, and not based on firsthand knowledge. Id. at 125:15-25.

After Barnett was fired, he filed an EEOC claim against HCS alleging discrimination on July 20, 2012. Ackerman Decl. ¶ 15. Soon after HCS received the EEOC claim, Plaintiff says that Defendant Shearer called HCS and asked Plaintiff to look in Barnett's file to see what kind of records were kept in relation to his job performance. Kittles Dep. 116:23-117:9. Plaintiff refused to pull the file, and another employee had to do so. Id. at 126:5-127:4. While another employee was getting the file, Defendant Shearer was placed on speakerphone, and Plaintiff says she could hear the conversation between Shearer and the other employee. Id. Plaintiff says "they were trying to find something in his chart, and nobody could find anything. And at that time I felt the tension going. I stayed out of it, and I just didn't want any part of it because I felt like eventually it would come to this right here, " referring to her current deposition in her own wrongful termination lawsuit. Id.

A few weeks later, Defendant Cindy Ackerman, who is HCS's Corporate Director of Human Resources and works at the HCS corporate office in College Park, Georgia, went to the HCS Brunswick office to interview witnesses concerning Barnett's EEOC claim. Id. at ¶¶ 2-3, 16. In Brunswick, Defendant Ackerman met with Defendant Bonita Mikel, Director of the HCS Brunswick office, to conduct the interviews. Mikel Decl. ¶ 23. The two Defendants spoke with Plaintiff about Barnett's termination, and Plaintiff told them that she disapproved of Barnett's termination. Kittles Dep. 212:8-23.

Defendant Ackerman says that it is her practice, when traveling to a satellite office, to do a general audit of the office's hiring practices. Ackerman Decl. ¶¶ 17-18. When she visited the Brunswick office, she audited some applicant files to ensure that they were complete and that proper procedures were being followed. Id. ¶ 19. Defendant Ackerman discovered that many applicants had been given the opportunity to take the First Advantage Test, which is designed to only be taken once, several times, some as many as ten times. Id. ¶¶ 20-22. When Defendants Ackerman and Mikel confronted Plaintiff about this practice, she admitted to allowing applicants to take the First Advantage Test more than once. Dkt. no. 4 5-1 ("Ackerman Second Decl."), ¶ 4. Defendant Ackerman says she did not find any evidence that anyone except Plaintiff had been improperly allowing applicants to take the First Advantage Test multiple times. Id. ¶ 5. The HCS Defendants then terminated Plaintiff, the stated reason being that she had recently been reprimanded and warned that any violation of company policy could result in her termination, and her offering the First Advantage Test multiple times constituted such a violation.

Plaintiff maintains that she was terminated because she complained to her supervisors about what she perceived to be Barnett's discriminatory termination.


Summary judgment is required where "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. 56(a). A fact is "material" if it "might affect the outcome of the suit under the governing law." FindWhat Investor Grp. v., 658 F.3d 1282, 1307 (11th Cir. 2011) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). A dispute over such a fact is "genuine" if the "evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. In making this determination, the court is to view all of the evidence in the light most favorable to the nonmoving party and draw all reasonable inferences in that party's favor. Johnson v. Booker T. Washington Broad. Serv., Inc., 234 F.3d 501, 507 (11th Cir. 2000).

The party seeking summary judgment bears the initial burden of demonstrating the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). To satisfy this burden, the movant must show the court that there is an absence of evidence to support the nonmoving party's case. Id. at 325. If the moving party discharges this burden, the burden shifts to the nonmovant to go beyond the pleadings and present affirmative evidence to show that a genuine issue of fact does exist. Anderson, 477 U.S. at 257. The nonmovant may satisfy this burden in two ways: First, the nonmovant "may show that the record in fact contains supporting evidence, sufficient to withstand a directed verdict motion, which was 'overlooked or ignored' by the moving party, who has thus failed to meet the initial burden of showing an absence of evidence. Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1116 (11th Cir. 1993) (quoting Celotex, 477 U.S. at 332 (Brennan, J., dissenting)). Second, the nonmovant "may come forward with additional evidence sufficient to withstand a directed verdict motion at trial based on the alleged evidentiary deficiency." Id. at 1117. Where the nonmovant attempts to carry this burden instead with nothing more "than a repetition of is conclusional allegations, summary judgment for the defendants [is] not only proper but required." Morris v. Ross, 663 F.2d 1032, 1033-34 (11th Cir. 1981).


I. Title VII and 42 U.S.C. ยง 1981 Discrimination ...

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