United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER
7, 2018, Defendant filed a Motion for Summary Judgment and
Memorandum in Support (ECF No. 24). The Court, having
considered the motion, briefs, evidence, argument, relevant
law, and otherwise being fully advised, concludes that the
motion for summary judgment should be granted and the case
record, viewed in the light most favorable to Plaintiff
Kathleen Burke ("Plaintiff or "Burke") and
drawing all inferences in her favor, shows the following.
began working for Hospital Physician Partners
("HPP") in 2009 as a medical scribe in Albuquerque,
New Mexico. Defi's Mot., Undisputed Fact
("Defi's UF") ¶ 1, ECF No. 24. When
Plaintiff began working for HPP, she provided medical
scribing services at Lovelace's downtown hospital and her
supervisor was Johnathon Hartnett. Id. UF
¶¶ 2-3. Mr. Hartnett was in charge of recruiting
new scribes to HPP; he recruited Plaintiff to HPP; and during
the negotiations, he agreed orally that she would not work
night shifts. Hartnett Aff ¶¶ 2-3, ECF No. 28-2.
Plaintiff was only willing to take the job with the
understanding she would not work nights. Burke Dep. 31:16-22,
ECF No. 28-1. While Mr. Hartnett worked at HPP, he never
assigned Plaintiff to work a night shift. Hartnett Aff ¶
4, ECF No. 28-2.
later expanded their scribing services to additional Lovelace
facilities. Def's UF ¶ 5, ECF No. 24. David Wright
eventually took over Mr. Hartnett's position as
Plaintiffs supervisor. Id. ¶ 6. On November 7,
2013, Mr. Wright sent an email to Plaintiff and two other
scribes containing the following information:
The scribe team needs to adapt and become more flexible to
better serve the needs of our providers and the hospitals in
which they work.
As of 12/1/2013, all scribe team members may be scheduled to
work at any of the hospitals within the Lovelace system. As
support of our physician partners is a 24 hour / 7 day
commitment, you will be expected to be available to be
scheduled to work day, evening, or night shifts. I will
continue to be as flexible as I can in scheduling shifts, but
the needs of the hospitals must take priority.
Def's Ex. 3, ECF No. 24-1. Because of Plaintiff s oral
agreement made with Mr. Hartnett, she believed the company
policy change did not apply to her. See Burke Dep.
59:4-10, ECF No. 24-1.
April 2014, Jason Lafayette took over scheduling of the
scribes in Albuquerque. Def's UF ¶ 9, ECF No. 24. At
that time, Plaintiff was the most senior scribe at the
Albuquerque location. Burke Aff. ¶ 7, ECF No. 28-3. The
other scribes she worked with were substantially younger than
her. Burke Dep. 48:15-16, ECF No. 28-1.
advised Plaintiff in April 2014 that scheduling of scribe
coverage would be based on priority and that scribes would be
expected to be available to be scheduled to work day, evening
or night shifts based on the priority needs of HPP's
providers. Lafayette Decl. ¶ 9, ECF No. 24-1. Lafayette
made schedules for the Albuquerque scribes between April 2014
and September 2014. Def's UF ¶ 11, ECF No. 24. Burke
only saw Lafayette in person three or four times.
Id. ¶ 27.
Lafayette scheduled Plaintiff for a night shift, she would
inform her superiors, including Lafayette, that she had a
long-standing agreement not to work nights and she would not
work the night shift. Burke Dep. 57:12-21, ECF No. 24-1;
Burke Aff. ¶¶ 5 & 9, ECF No. 28-3. Plaintiff
would not go to the night shift, nor would she always get
coverage for it because she believed it was not her
responsibility. See Burke Dep. 57:18-23, ECF No.
24-1. Most of the time, however, she would try to get the
shift covered by contacting other scribes. Burke Aff. ¶
9, ECF No. 28-3. Lafayette continued to schedule Plaintiff on
night shifts throughout the entire time he was her
supervisor. Id.¶\0. Lafayette would send
Plaintiff emails telling her that she was required to work
night shifts. Id.¶\\. When Plaintiff would
respond that she had an agreement not to work nights, he
would state that all scribes were required to work nights.
Id. Lafayette informed Plaintiff that each employee,
once scheduled for a shift, was responsible for the coverage
of the assigned shift. Lafayette Decl. ¶ 12 & Ex. 4,
ECF No. 24-1 at 13, 28 of 49; Burke Dep. 52:7-10, ECF No.
24-1. Plaintiff was informed that even trades were an option
if she could not make a scheduled shift. See
Def.'s Ex. 7, ECF No. 24-1 at 38 of 49.
does not know whether the younger scribes refused to work for
their assigned shifts or whether they did not show up for
their scheduled shifts. Def.'s UF ¶¶ 16-17, ECF
No. 24. She also did not know whether her fellow scribes were
ever scheduled for a shift during which they had something
else going on. Burke Dep. 51:23-52:1, ECF No.
point, Plaintiff temporarily agreed to help train physicians
on electronic medical records ("EMR"), despite that
it was not her job, to help the company get over a rough spot
when it did not have enough employees to do the training.
See Burke Dep. 40:9-41:18, ECF No. 24-1; Burke Dep.
39:10-40:8, ECF No. 28-1. EMR trainers were paid nearly twice
the amount Plaintiff was as a scribe, yet she never received
an increase in pay to train doctors on the EMR system. Burke
Aff ¶ 16, ECF No. 28-3. Because she did not feel like
she was adequately trained or being adequately paid to be a
trainer, she sent an email to Lafayette indicating that she
did not want to do EMR training anymore because it was not in
her job description. See id; Burke Dep. 40:9-41:24,
ECF No. 24-1; Burke Dep. 50:23-51:3, ECF No. 28-1; Def.'s
Ex. 4B, ECF No. 24-1 at 18-19 of 49. Plaintiff never
witnessed any younger scribes being required to train doctors
on the EMR system. Burke Aff. ¶ 16, ECF No. 28-3.
Lafayette believed that EMR training was a logical task for
Plaintiff, but she disagreed. Burke Dep. 43:11-15, ECF No.
24-1. Nevertheless, they stopped scheduling Plaintiff to
train physicians on the use of the EMR. Id.
April 10, 2014, Lafayette set up a meeting with Burke and was
vague and unwilling to give her an answer about the purpose
of the meeting. See Burke Dep. 78:6-24, ECF No.
24-1; April 10, 2014 Email, ECF No. 24-1 at 18 of 49.
Lafayette walked her into a room where he had a vice
president on the phone. Burke Dep. 78:6-24, ECF No. 24-1. The
meeting concerned trying to make Plaintiff work nights.
See Id. 80:9-16.
April 16, 2014, Lafayette acted domineering, hostile, and
passive-aggressive toward Plaintiff in the ERby using an
angry, raised voice in the presence of staff and patients.
Burke Dep. 66:20-67:18, ECF No. 28-1. She does not remember
why he was angry. Id. 68:9-11. The encounter lasted
between one and five minutes. Id. 69:11-13.
Lafayette stood a few feet away and did not touch her.
April 18, 2014, Lafayette exhibited hostile behavior toward
Plaintiff in the ER in the presence of other employees,
staff, patients, and patient families by being domineering
and rude, using an angry and raised voice. Burke Dep.
71:19-73:22, ECF No. 28-1. Lafayette was angry with her while
discussing a decrease in her hours by 30%. See Id.
73:14-19. To end the conversation, Burke informed him firmly
while pointing her finger at the desk that the conversation
was over. Id. 72:25-73:5. The incident lasted