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Burke v. TSG Resources, Inc.

United States District Court, D. New Mexico

December 4, 2018



         On May 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 dismissed.


         The record, viewed in the light most favorable to Plaintiff Kathleen Burke ("Plaintiff or "Burke") and drawing all inferences in her favor, shows the following.

         Plaintiff 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.

         HPP 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.

         In 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.

         Lafayette 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.

         When 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.

         Plaintiff 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. 24-1.[1]

         At some 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. 43:18-24.

         On 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.

         On 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. Id. 69:14-17.

         On 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 ...

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