Deborah L. Partain v. Sta-Home Health Agency of Jackson, Inc.
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2003-CA-00804-COA
DEBORAH L. PARTAIN
APPELLANT
v.
STA-HOME HEALTH AGENCY OF JACKSON, INC.
DATE OF TRIAL COURT JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEYS FOR APPELLANT:
ATTORNEYS FOR APPELLEE:
NATURE OF THE CASE:
TRIAL COURT DISPOSITION:
DISPOSITION:
MOTION FOR REHEARING FILED:
CERTIORARI FILED:
MANDATE ISSUED:
APPELLEE
3/31/2003
HON. W. SWAN YERGER
HINDS COUNTY CIRCUIT COURT
MYLES A. PARKER
ALICIA KATE MARGOLIS
DONALD JAMES BLACKWOOD
THOMAS L. KIRKLAND
CIVIL - OTHER
DEFENDANT’S MOTION FOR DIRECTED
VERDICT GRANTED.
AFFIRMED - 10/12/2004
BEFORE KING, C.J., IRVING AND MYERS, JJ.
MYERS, J., FOR THE COURT:
¶1.
Deborah L. Partain appeals from a final judgment of the Circuit Court of Hinds County in
favor of the defendant, Sta-Home Health Agency of Jackson, Inc., granting a motion for directed
verdict. Partain appeals raising the following issues:
I. WHETHER THE TRIAL COURT ERRED IN GRANTING STA-HOME HEALTH
AGENCY’S MOTION FOR DIRECTED VERDICT.
II. WHETHER THE TRIAL COURT ERRED IN EXCLUDING EVIDENCE OF DAVID
HERRINGTON’S PREGNANCY RELATED COMMENTS.
III. WHETHER THE TRIAL COURT ERRED IN DENYING PARTAIN’S MOTION
IN LIMINE AND OTHER EVIDENTIARY RULINGS.
Finding no error, we affirm.
STATEMENT OF FACTS
¶2.
Debbie Partain began working for Sta-Home Health Agency of Jackson, Inc. as a secretary
in April 1992. After being employed by Sta-Home for a period of approximately three years, StaHome agreed to pay Partain’s tuition to Hinds Community College to earn a degree as a registered
nurse. In December 1996, Partain graduated with her nursing degree and began working in this
capacity for Sta-Home in January 1997. One requirement of the employment and tuition agreement
was for Partain to complete 192 hours of clinical work in a hospital of her choosing.
¶3.
During Partain’s employment, the economic climate for Medicare and Medicaid reimbursed
healthcare organizations such as Sta-Home became unstable. This instability was brought about by
the Balanced Budget Act of 1997, in which Medicare and Medicaid expenditures were significantly
decreased. As a result of lower Medicare and Medicaid budgets, organizations such as Sta-Home
were forced to reorganize their operations in order to survive.
¶4.
The reorganization of Sta-Home involved the elimination of roughly thirty positions from
the company’s 300 person workforce, an approximate ten percent reduction. In order to determine
which employees would be released, Sta-Home conducted an evaluation which ranked each
employee on a scale of negative three to three. In making their determination, Sta-Home used three
criteria which were given a value of negative one to one, and the score was tallied giving a range
from negative three to three. The criteria included skill level, productivity, and overall performance.
Partain ranked poorly on her evaluation, in which her failure to complete the required 192 hours of
clinical work was noted. Partain was one of thirty employees dismissed.
¶5.
Partain brought a claim against Sta-Home under Title VII of the Civil Rights Act of 1964
in which she alleged that her termination was motivated by her gender and her pregnancy. Partain
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alleged that Ronald Thorp, a male nurse with less experience and skill, was retained in her position.
Upon the close of Partain’s case-in-chief, Sta-Home moved for a directed verdict which was granted.
LEGAL ANALYSIS
I. WHETHER THE TRIAL COURT ERRED IN GRANTING STA-HOME HEALTH
AGENCY’S MOTION FOR DIRECTED VERDICT.
¶6.
Partain asserts that the trial court erred in granting Sta-Home’s motion for directed verdict.
In making this determination, this Court must view the evidence in the same light as the trial court.
Thus, this Court must review the circuit court’s ruling de novo. Fulton v. Robinson Indus., Inc., 664
So. 2d 170, 172 (Miss. 1995).
¶7.
Upon the close of Partain’s case, Sta-Home moved for directed verdict pursuant to rule 50(a)
of the Mississippi Rules of Civil Procedure. In making a determination, the trial court may grant
a directed verdict for the defendant at the close of the plaintiff’s case if, in the opinion of the court,
the plaintiff has failed to present credible evidence establishing the necessary elements of his or her
right to recover. Thomas v. Smith, 786 So. 2d 418, 419 (¶2) (Miss. Ct. App. 2001). When the
defendant moves for a directed verdict at the close of the plaintiff’s case-in-chief, the court must
consider the evidence before it at that time in the light most favorable to the plaintiff, giving the
plaintiff the benefit of all favorable inferences that reasonably may be drawn from that evidence.
Benjamin v. Hooper Electronic Supply Co., 568 So. 2d 1182, 1187 (Miss. 1990). Only, when
viewed in the light most favorable to the plaintiff, should the court determine that the matter is so
overwhelmingly in favor of the defendant that no reasonable juror could find for the plaintiff, should
the court direct a defendant’s verdict. Id.
¶8.
In making its determination for directed verdict on a matter concerning Title VII of the Civil
Rights Act of 1964, the trial court will apply the burden shifting test prescribed by McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973). In making his or her prima facie case, the plaintiff
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must show (i) he or she is a member of a protected class, (ii) he or she was qualified for the position
lost, (iii) he or she suffered an adverse employment action, and (iv) that others similarly situated
were more favorably treated. Urbano v. Continental Airlines, Inc., 138 F. 3d 204, 206 (5th Cir.
1998) (citing McDonnell Douglas, 411 U.S. at 792-793). Upon presentation of the plaintiff’s prima
facie case, the burden then shifts to the employer to articulate some legitimate, nondiscriminatory
reason for the adverse employment action. McDonnell Douglas. Id. at 804. If there is a showing of
some legitimate, nondiscriminatory reason for the action, the burden shifts back to the plaintiff who
must demonstrate that the proffered reason(s) for the action were merely “pretext” for a decision
made based upon discriminatory criteria. Id. at 804.
¶9.
In determining whether the plaintiff has met his or her burden of proving a prima facie case,
the court views the four factors outlined above. In the case sub judice, Partain has not proven all
of the necessary elements of a prima facie case. Partain, as a pregnant woman, falls within a
protected class. Partain also has suffered adverse employment action by losing her position with
Sta-Home. Thus, factors one and three have arguably been met.
¶10.
Where Partain fails to meet her burden of proof is with the second factor, that she is qualified
for the position lost. Partain argues that previous employment reports were conducted giving her
very high marks. Though positive peer reviews occurred, the peer reviews do not ultimately
determine whether one is or is not qualified for the position lost. The fact remains that Partain has
failed to meet an express requirement of her tuition agreement and employment contract; therefore,
she can not completely meet the second prong of this four part test.
¶11.
Partain next fails to meet the fourth prong of the McDonnell Douglas test, that others
similarly situated were more favorably treated. Partain contends that she was replaced by someone
similarly situated, namely Ronald Thorp, a member of Partain’s graduating class. Though both
Partain and Thorp may have possessed their degrees for the same duration, Thorp obtained over 600
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hours of clinical work, in comparison with Partain’s zero hours. Secondly, the trial record does not
indicate that there was any direct comparison made between Partain and Thorp, and in fact it
indicates the converse, that there was never a direct comparison made between the two. The record
indicates only that each nurse was evaluated on a scale of negative three to three and comparisons
of the nurses were made cumulatively. There was a reduction in personnel at Sta-Home. Partain
did not meet all of the employment requirements. Thorp did meet all of the employment
requirements. In making the decision on which employees to retain and which employees to dismiss
for the cutback, Sta-Home retained those which were most qualified for each position. Sta-Home
felt that other nurses were more qualified for the available positions than Partain.
¶12.
Partain raises the issue that the length of time that an employee has with the company was
a factor in determining which employees would be discharged. It is undisputed that Partain worked
at Sta-Home for a considerably greater amount of time than Thorp. It is also clear that the length
of time consideration would act as a “tie-breaker” in the event that a determination had to be made
between which of two employees to retain. Such was not the case, as the decision of Sta-Home was
never between retaining Thorp or Partain.
¶13.
If Partain had proven each element of her prima facie case, Sta-Home would then have to
prove some legitimate, non-discriminatory reason for its actions. Though a prima facie case was not
presented, Sta-Home has accomplished this task. Sta-Home presented five legitimate, nondiscriminatory reasons for Partain’s dismissal. First, Sta-Home adduced evidence that Partain’s
release was in response to budget setbacks caused by the Balanced Budget Act of 1997. Second,
Sta-Home followed a consistent procedure in making evaluations regarding which employees should
be retained. Three factors, skill and certification level, overall productivity, and overall performance
were weighted and given a score of negative one to one to arrive at a composite score for each
employee. Retention decisions were based upon each employee’s overall score. This was a neutral
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method for making this determination. Third, Partain was in breach of her tuition agreement with
Sta-Home. Partain never acquired the requisite number of clinical hours as agreed upon in
paragraph four of her tuition agreement with Sta-Home. In this tuition agreement, Sta-Home agreed
to pay for all tuition costs Partain would incur during pursuit of her nursing degree in consideration
for Partain’s promise to work for a period of up to three years, to begin work within thirty days after
completion of her State Board exams, to accept market pay, to complete at least 192 hours in an
acute care setting within the first year after graduation, and should the student be unable to continue
employment with Sta-Home, to pay back tuition expenses. Fourth, Sta-Home referenced specified
problems Partain was having in handling her patient load, a result of time management difficulties
and failure to keep her paperwork up to date. Fifth, Sta-Home presented evidence that Partain had
difficulties in communicating with her supervisors regarding schedule changes.
¶14.
Upon proof of some legitimate, non-discriminatory reasoning for Partain’s dismissal, the
burden then shifts back to Partain to show that the reasons proffered by Sta-Home were a mere
pretext for discrimination. Any reasoning presented by Partain showing that Sta-Home’s actions
were a mere pretext for discrimination must be shown by substantial evidence. Reeves v. Sanderson
Plumbing Products, Inc., 530 U.S. 133, 146 (2000). To rebut the non-discriminatory reasons offered
by Sta-Home, Partain must procure offerings which negate the proffered reasoning set forth by StaHome. Partain’s evidence is “not so persuasive so as to support an inference that the real reason was
discrimination.” Rubinstein v. Admin’r of Tulane Educ. Fund, 218 F. 3d 392, 400 (5th Cir. 2000).
¶15.
Partain offered the performance evaluations of Thorp and herself to rebut Sta-Home’s
reasons for termination, citing the reports as stating Partain’s performance as “very successful” and
Thorp’s performance as “successful.” Testimony at trial indicated that performance evaluations
were conducted by fellow nurses and that performance evaluations were normally overwhelmingly
positive. Though it is undisputed that Partain received higher marks on her performance evaluation
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than Thorp, testimony and evidence presented showed that performance evaluations were not
factored into retention decisions, nor were any direct comparisons made between Partain and Thorp.
On the evaluations upon which the decision to retain or dismiss employees were based, Partain
scored lower than Thorp. Partain’s performance review was conducted in April 1997, less than four
months after beginning work as a nurse for Sta-Home, whereas the final evaluation of Partain
occurred in November 1997. Partain’s performance review was not solely rating her nursing skills,
her secretarial skills were also included in the evaluation. Considering Partain’s work after the
performance review was conducted, and looking solely at her nursing skills, from June 1997 to
October 1997, Partain’s patient visitations decreased from ninety-three to sixty-one, a decrease in
visitation productivity of thirty-four percent.
¶16.
Partain offered testimony that she was never confronted by Sta-Home’s management
regarding poor performance or negative feedback and that she was never confronted regarding the
required 192 hours of clinical work. This simply is not true. Partain’s contention that she was never
confronted by Sta-Home’s management regarding performance or negative feedback nor was she
confronted regarding the required 192 hours of clinical work is disputed by a writing signed by
Partain, her supervisor Patricia Gaines, as well as her team leader Becky Cook on September 17,
1997. This document indicates that Partain had been having scheduling problems as well as needing
to obtain 192 hours of clinical work. Partain further testified that she felt as though she “had it easy”
with regard to conflicting testimony that she was falling behind in her duties. Again, the decrease
in patient visits from June through October 1997 refute this assertion. Therefore, we find this issue
is without merit.
II. WHETHER THE TRIAL COURT ERRED IN EXCLUDING EVIDENCE OF DAVID
HERRINGTON’S PREGNANCY RELATED COMMENTS.
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¶17.
Partain argues that the trial court erred in excluding evidence of David Herrington’s
pregnancy related comments. The standard of review regarding the admission or exclusion of
evidence is abuse of discretion. Tatum v. Barrentine, 797 So. 2d 223, 230 (¶12) (Miss. 2001) (citing
Thompson Mach. Commerce Corp. v. Wallace, 687 So. 2d 149, 152 (Miss. 1997)).
¶18.
On November 18, 1997, when Partain was dismissed, the termination notice was given by
David Herrington, the administrator of Sta-Home. In his administrative capacity, Herrington
administers and coordinates the daily activities of the corporation, which presumably includes the
releasing of employees. Upon notification of her dismissal, Partain became visibly upset and
Herrington made comments to her which included “think about the baby” and “not get so upset.”
Partain states that excluding this evidence was error.
¶19.
In order for a remark to be used as evidence of a pretext for discrimination, two factors must
be met. The remark must (1) demonstrate discriminatory animus and, (2) be made by a person
primarily responsible for the adverse employment action or by a person with influence or leverage
over the formal decision maker. Laxton v. Gap Inc., 333 F. 3d 572, 583 (5th Cir. 2003). This
statement is inadmissible as evidence of a pretext for discrimination because it does not suggest that
Partain was being dismissed for her pregnancy nor does it suggest any type of discriminatory intent.
The statement, which Partain alleges Herrington made, is one of concern for the well being of
Partain and her child. “Think about the baby” and “not get so upset” does not indicate that Partain
was released by Sta-Home because of her pregnancy, rather this was a statement of compassion for
Partian’s feelings. This statement does not satisfy both prongs of the Laxton two part test and
exclusion of the statements was proper. Therefore, we find this issue is without merit.
III. WHETHER THE TRIAL COURT ERRED IN DENYING PARTAIN’S MOTION
IN LIMINE AND OTHER EVIDENTIARY RULINGS.
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¶20.
Partain raises three evidentiary issues in which she contends the trial court erred. The
standard of review regarding the admission or exclusion of evidence is abuse of discretion. Tatum
v. Barrentine, 797 So. 2d 223, 230 (¶12) (Miss. 2001) (citing Thompson Mach. Commerce Corp.
v. Wallace, 687 So. 2d 149, 152 (Miss. 1997)).
¶21.
First, it is asserted that the court erred in not allowing cross-examination of Gaines regarding
the performance appraisal of Thorp as well as occasions where Partain contends she had to help
Thorp in his work. At trial, the exclusion of Thorp’s performance appraisal while cross-examining
Gaines was proper. There was no relevance, as throughout the trial it was stated repeatedly that
there was never a direct comparison made between Partain and Thorp, all nurses were compared
collectively. Relevance in this instance is lacking as Thorp’s performance appraisal was arguably
selected by Partain because he was male, he had worked for Sta-Home for a shorter duration of time
than Partain, and he and Partain were in the same graduating class. If looking at the facts broadly
on the basis of gender, experience, and length of service, it would appear that there would be some
form of relevance in Thorp’s performance appraisal. Though, viewing the circumstances in their
entirety, it is clear that the employment of Thorp and Partain are completely unrelated. Looking at
the matter in the same manner in which Sta-Home was forced to select which employees to retain,
we find the company evaluated that Thorp had acquired over 600 hours of clinical work to Partain’s
zero hours. From July to October, the only time period in which both Partain and Thorp were
visiting patients so that a comparison is possible, Thorp’s patient visits increased. Thorp’s patient
visits rose from sixty-seven in July, to eighty-two in August, eighty-three in September, and eightynine in October. Conversely, Partain’s patient load decreased over the same reference period from
seventy-nine in July, to seventy-one in August, seventy-seven in September, to sixty-one in October.
Even taking into consideration Partain’s eleven to twelve day absence from work in October due to
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pregnancy-related complications, Partain’s overall patient visits had decreased while Thorp’s had
increased.
¶22.
It was never stated anywhere within the record that Partain was a bad nurse. Sta-Home
obviously saw potential in Partain, as it agreed to pay her tuition to nursing school. This simply is
a case which focuses on the bottom line of economics. Thorp was a more productive nurse than
Partain and in deciding which employees were to be terminated, the decision was firmly rooted in
economics. The Mississippi Supreme Court has made it clear that “for a case to be reversed on the
admission or exclusion of evidence, it must result in prejudice and harm or adversely affect a
substantial right of a party.” Terrain Enters., Inc. v. Mockbee, 654 So. 2d 1122, 1131 (Miss. 1995)
(citing Hansen v. State, 592 So.2d 114 (Miss. 1991)). Even if Thorp’s performance appraisal had
never been admitted into evidence, no prejudice would have occurred and no substantial right would
have been affected. Thorp’s performance appraisal ultimately was admitted into evidence, just not
at Partain’s preferred moment in the hearing; therefore, we find no merit in this argument.
¶23.
Partain next argues that the trial court committed reversible error because it sustained Sta-
Home’s objections to her failure to lay a predicate during questioning of her expert witness
regarding the 192 hour clinical work requirement. The proper standard of review for exclusion of
such testimony is whether or not the trial court abused its discretion. Admission or rejection of
evidence is within the discretion of the trial judge and will not be reversed absent an abuse of that
discretion. K-Mart Corp. v. Hardy ex rel. Hardy, 735 So. 2d 975, 983 (¶21) (Miss. 1999) (citing
Broadhead v. Bonita Lakes Mall, Ltd. P’ship, 702 So. 2d 92, 102 (¶35) (Miss. 1997) (quoting
Sumrall v. Miss. Power Co., 693 So. 2d 359, 365 (Miss. 1997); Gen. Motors Corp. v. Jackson, 636
So. 2d 310, 314 (Miss. 1992); Walker v. Graham, 582 So. 2d 431, 432 (Miss. 1991)). For a case to
be reversed based on error in the admission or exclusion of evidence, the error must result in harm
and prejudice or adversely affect a substantial right of a party. Id. at 983 (citing Hansen, 592 So. 2d
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at 114 (1991)). Although the issue raised on appeal was whether Partain’s expert was incorrectly
prohibited from testifying regarding the actual impact of the 192 hours of clinical work on her skills
as a home health nurse, from the testimony, it appears as though the ultimate opinion sought was
elicited, as follows:
Mr. Fentress, there’s been a lot of talk about the 192 hours. In carrying out your
skills assessment of Debbie Partain, do you have an opinion as to whether the lack
of 192 hours in November of 1997 had any impact on her skills or abilities as a
registered nurse?
BY MR. KIRKLAND: If it please the Court, I object to that. I don’t think he knew
her at that point and time to assess whether or not that had any impact on her skills
as a nurse. He’s asking him now after review of her at a later point to transpose back
in time to say as of that date she was a good nurse without the 192 hours.
BY MR. PARKER: Your Honor, he conducted a skills assessment of this young
lady. He should be able to answer and entitled to answer this question.
BY THE COURT: If you lay a proper predicate.
BY MR. PARKER: I’m sorry?
BY THE COURT: If you lay a proper predicate.
BY MR. PARKER: (Continuing)
Q. Based on the information that you have reviewed and your interview with Ms.
Partain, do you have a professional opinion as to whether she was properly skilled
and qualified as a registered nurse in November of 1997?
BY MR. KIRKLAND: Same objection, Your Honor. He’s asking him to jump back
in time. There’s no predicate for that, and he would have no way of knowing in
November whether or not she was a qualified nurse with or without the 192 hours.
BY THE COURT: Sustained, again, unless there’s a proper predicate laid.
BY MR. PARKER: (Continuing)
Q. What is your opinion, sir, as to the skills and qualifications of Deborah Partain
as a registered nurse?
A. That she was highly skilled in her field working both in the home health field and
later as an RN in a hospital setting.
Finding no abuse of discretion, we find no merit to this issue.
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¶24.
The last issue Partain raises on appeal is whether or not the trial court erred in holding that
there was no violation of the rule of sequestration, or “the rule” as it is known in Mississippi. It is
well settled in Mississippi jurisprudence that when a violation of Rule 615 of the Mississippi Rules
of Evidence is alleged on appeal, this Court is limited to an abuse of discretion standard of review.
Woulard v. State, 832 So. 2d 561, 565 ( ¶13) (Miss. Ct. App.2002) (citing Douglas v. State, 525
So.2d 1312, 1318 (Miss. 1988)). There is no justification for reversal unless there is a showing of
prejudice sufficient to constitute abuse of discretion on the part of the trial judge in not ordering a
mistrial or not excluding testimony. Id.; Whittington v. State, 748 So. 2d 716 (¶19) (Miss. 1999).
¶25.
At issue is whether Partain was prejudiced by Mrs. Peggy Stewart’s return to the witness
room after having testified. During trial, Mrs. Stewart was called as an adverse witness as were
many of the defense witnesses during Partain’s case-in-chief. Upon being excused until Sta-Home’s
case-in-chief, witnesses were to go back to the witness room. There were instructions given each
witness that they were not to discuss any aspects of the testimony which they had given at trial. The
issue of a possible violation of Rule 615 was raised the second day of trial, prior to any further
testimony. The court allowed Partain to examine the witnesses regarding any communications
which may have been in violation of the rule.
¶26.
From the record, it does not appear that any material issue of the case was discussed.
Though the case was discussed generally, the record is devoid of a showing that any witness had
discussed his or her personal testimony with the others. Rule 615 was drafted to prevent witnesses
from tailoring their testimony to conform with one another. Although the Court recognizes the
serious nature of the subject matter the rule was drafted to prevent, we are of the opinion that the
actions which Rule 615 seeks to prevent are not present.
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¶27.
The trial court allowed Partain to examine the witnesses regarding any potential violation
and found that no violation had occurred. This decision was a proper exercise of the court’s
discretion. Therefore, we find the issue to be without merit.
¶28. THE JUDGMENT OF THE HINDS COUNTY CIRCUIT COURT IS AFFIRMED.
THE APPELLANT IS ASSESSED ALL COSTS OF THIS APPEAL.
KING, C.J., BRIDGES AND LEE, P.JJ., IRVING, CHANDLER AND GRIFFIS, JJ.,
CONCUR. BARNES AND ISHEE, JJ., NOT PARTICIPATING.
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