JOINT PROPOSED PRETRIAL ORDER. This parties do not dispute that the court has jurisdiction pursuant to 28 U.S.C. 1331

Transcription

1 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF TENNESSEE AT NASHVILLE BEVERLY D. MCMAHON, Plaintiff, v. No. 3: JUDGE CRENSHAW METROPOLITAN GOVERNMENT OF NASHVILLE AND DAVIDSON COUNTY, TENNESSEE, Defendant. and JOINT PROPOSED PRETRIAL ORDER Plaintiff Beverly McMahon and Defendant Metro submit this proposed pretrial order. I. Jurisdiction and Venue. This parties do not dispute that the court has jurisdiction pursuant to 28 U.S.C II. Pleadings. All pleadings are hereby amended to conform to this Pretrial Order and this Order supplants the pleadings. III. Parties Theories. Plaintiff s Theory: In the spring and summer of 2011, Metro Public Health Nurse Beverly McMahon was suffering from anxiety and depression with associated physical symptoms as a result of being harassed by a supervisor. Ms. McMahon submitted {N } 1 Case 3:13-cv Document 85 Filed 06/08/16 Page 1 of 5 PageID #: 667

2 documentation from her providers recommending transfer away from the Lentz Clinic. Two days after Ms. McMahon filed a charge of discrimination with the EEOC, Metro transferred her out of Lentz to the Woodbine Clinic as a reasonable accommodation. Ms. McMahon was succeeding in her new work environment, but, after two months, Metro suddenly terminated the reasonable accommodation agreement and returned Ms. McMahon to the Lentz Clinic against her expressed wishes. Ms. McMahon relapsed shortly after her return to Lentz. Metro refused Ms. McMahon s documented request for leave, and instead charged Ms. McMahon with job abandonment and initiated disciplinary proceedings that Ms. McMahon reasonably believed were going to result in the termination of her employment. Ms. McMahon quit to avoid being fired. Ms. McMahon asserts that Metro 1 failed to reasonably accommodate her as required by the ADA when it sent her back to Lentz; 2 unlawfully retaliated against her in violation of Title VII by returning her to Lentz after she filed a charge of discrimination with the EEOC; and 3 constructively discharged her (forced her to quit. She claims back pay and emotional distress damages. Defendant s Theory: As stated above in the Plaintiff s Theory, Ms. McMahon makes two claims under the ADA, first that Metro did not reasonably accommodate a disability that Ms. McMahon claims to have had and second that she was constructively discharged because of the disability. She also includes a retaliation claim: that her transfer from the Woodbine Clinic to {N } 2 Case 3:13-cv Document 85 Filed 06/08/16 Page 2 of 5 PageID #: 668

3 the Preventative Health Clinic at Lentz was done out of retaliation for filing her earlier EEOC charge (the one filed In June 2011, Ms. McMahon requested to be moved from the Sexually Transmitted Disease clinic at the Lentz facility to a different department or clinic. Because Ms. McMahon had recently made 3 major errors resulting in a Performance Improvement Plan ( PIP any placement required that she be actively supervised. Since Ms. Johnson, the supervisor at the Preventative Health Clinic at Lentz, was on maternity leave Ms. McMahon was temporarily placed in the Preventative Health Clinic at Woodbine displacing another employee. At the time, and even several months after resigning (as evidenced by the statements in her May & July 2012 EEOC charges, Ms. McMahon had stated that she did not want to be transferred to Woodbine because she did not want to work with children. But, the Health Department placed Ms. McMahon with an excellent trainer who taught her techniques for working with children, so her fear of working with children had been addressed. With this lawsuit, she changed her story, claiming instead that she was succeeding in her new work environment and wished to stay at Woodbine as a way of accommodating her alleged disability (as she now says above in Plaintiff s Theory. But her assignment to Woodbine was temporary until the supervisor for the Preventative Health Clinic at Lentz, Ms. Johnson, returned from maternity leave. In October 2011, once Ms. Johnson returned (and could serve as Ms. McMahon s supervisor Ms. McMahon was placed at the Preventative Health Clinic at Lentz. The transfer between the Preventative Health Clinics at Woodbine and Lentz is {N } 3 Case 3:13-cv Document 85 Filed 06/08/16 Page 3 of 5 PageID #: 669

4 not a materially adverse employment action because the job duties, pay, and all other benefits of employment were the same between both jobs. In November 2011, Ms. McMahon then requested indefinite leave. Metro denied her request and set a hearing because, by then, she was AWOL. At the hearing, she could have appeared with a representative and put on her case. The Health Dept. needed a timeframe for her return. She refused to provide a timeframe. Her health care providers opined that it was impossible to say when she would be able to work again. She resigned the day before her hearing. Ms. McMahon is not protected under the ADA because she insisted upon indefinite leave. Attendance is an essential job function of the job of Public Health Nurse. In sum, Metro did not constructively discharge Ms. McMahon, and no retaliatory actions were taken against her because of her filing her EEOC charge (re: sex and religion. IV. Statement of the Issues. The Parties agree that these issues are presented in this lawsuit: A. Did the Metropolitan Government retaliate against Ms. McMahon for filing her July 2011 EEOC charge when it transferred her from Woodbine to Lentz in violation of Title VII of the Civil Rights Act? (jury question B. Did the Metropolitan Government constructively discharge Ms. McMahon in violation of the Americans with Disabilities Act? (jury question {N } 4 Case 3:13-cv Document 85 Filed 06/08/16 Page 4 of 5 PageID #: 670

5 C. Did the Metropolitan Government breach a duty to provide reasonable accommodation to Ms. McMahon in violation of the ADA when it transferred her from the Woodbine Clinic and returned her to the Lentz Clinic on or about September 29, 2011? (jury question V. Evidentiary Issues. The parties motions in limine have been resolved by Order dated June 6, 2016 (Docket No. 81. VI. Anticipated Length of Trial. The Parties anticipate that this trial will last two to three days. IT IS SO ORDERED. WAVERLY D. CRENSHAW, JR. UNITED STATES DISTRICT JUDGE {N } 5 Case 3:13-cv Document Filed 06/08/16 Page 5 of 65 PageID #: