Fry v. Ascension Health Ministry Services

CourtDistrict Court, E.D. Wisconsin
DecidedMay 3, 2021
Docket2:18-cv-01573
StatusUnknown

This text of Fry v. Ascension Health Ministry Services (Fry v. Ascension Health Ministry Services) is published on Counsel Stack Legal Research, covering District Court, E.D. Wisconsin primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Fry v. Ascension Health Ministry Services, (E.D. Wis. 2021).

Opinion

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WISCONSIN

WILLIAM L. FRY,

Plaintiff,

v. Case No. 18-CV-1573

ASCENSION HEALTH MINISTRY SERVICES d/b/a COLUMBIA ST. MARY’S,

Defendant.

DECISION AND ORDER ON DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

William Fry sues his former employer, Ascension Health Ministry Services, d/b/a Columbia St. Mary’s (“Columbia” or the “hospital”), for discrimination based on sexual orientation in violation of Title VII of the Civil Rights Act of 1964.1 Columbia moves for summary judgment dismissing Fry’s complaint. For the reasons explained below, Columbia’s motion is granted and this case is dismissed.

1 In Fry’s second amended complaint, he sued Columbia for discrimination based on sexual orientation in violation of Title VII and 42 U.S.C. § 1981 (Count One), religious discrimination in violation of Title VII and the First Amendment (Count Two), retaliation for opposing sex and religious discrimination in violation of Title VII and § 1981 (Count Three), age discrimination in violation of the Age Discrimination in Employment Act of 1967 (Count Four), negligent supervision (Count Five), and violation of the Wisconsin Fair Employment Act (Count Six). Columbia moved to dismiss Counts Two, Three, Five, Six, and any claims alleged under § 1981 and the First Amendment, pursuant to Fed. R. Civ. P. 12(b)(6). The motion was granted (Docket # 27) and Fry was allowed to proceed on Count One (pursuant to Title VII) and Count Four (ADEA discrimination). Columbia now moves for summary judgment as to Fry’s Title VII and ADEA discrimination claims. Fry does not respond to Columbia’s motion as to the ADEA claim. As such, Fry concedes this claim and I will only address the Title VII claim for discrimination based on sexual orientation. See Palmer v. Marion Cty., 327 F.3d 588, 597–98 (7th Cir. 2003) (holding that claims not addressed in a summary judgment opposition brief are deemed abandoned). UNDISPUTED FACTS William Fry was hired to work as a registered nurse in Columbia’s Medical/Surgical department in October 2003. (Def.’s Proposed Findings of Fact (“DPFOF”) ¶ 3, Docket # 36 and Pl.’s Resp. to DPFOF (“Pl.’s Resp.”) ¶ 3, Docket # 44.) Fry voluntarily resigned in

about January 2004, but was re-hired by Columbia in May 2005 to work as a registered nurse in Psychiatry. (Id. ¶¶ 4–5.) Fry was transferred to a full-time position as a Clinic Triage Registered Nurse for Ascension’s Northpoint Medical Clinic in January 2006 and in August 2007 was promoted to RN Clinic Coordinator for Ascension’s Columbia East Clinic. (Id. ¶¶ 6–7.) In July 2008, Fry was promoted to Clinic Manager for Ascension’s Prospect Medical Commons. (Id. ¶ 8.) In August 2011, Fry “wanted to get back into mental health” and asked if any mental health nursing positions were available. (Id. ¶ 9.) Fry was given a position as Clinical Nurse 2 in Psychiatry at Columbia. (Id.) In April 2012, Fry was promoted to Manager of Patient Services for the Behavioral Health units for the Columbia

Hospital in Milwaukee and for Columbia St. Mary’s Ozaukee, another hospital in the Ascension Health family. (Id. ¶ 10.) A few months later, Fry was promoted to Director of Patient Services for Behavioral Health. (Id. ¶ 11.) As Director of Behavioral Health, Fry was responsible for inpatient and outpatient Behavioral Health services at Columbia and Columbia St. Mary’s Ozaukee. (Id. ¶ 12.) Fry’s promotion was the result of his suggestion to eliminate an outside contractor and to hire two managers at each location to report to Fry. (Id. ¶ 13.) Fry selected Pamela Elgin to be the manager of Outpatient Behavioral Health and selected Susan Leuck to be the manager of Inpatient Behavioral Health. (Id.¶¶ 14–15.) In February 2017, Katherine McEwen became

Vice President of Patient Care and Fry’s direct supervisor. (Id. ¶ 16.) In 2016, Columbia announced a new policy that would require persons holding the position of Director to have a master’s degree as of January 2018. (Id. ¶ 18.) Fry did not have a master’s degree, and decided to seek a different role before the requirement went into effect in 2018. (Id. ¶ 19.) Sometime in 2017, after McEwen became Fry’s supervisor, he “put

[a] plan into place” to transition to a new role before the master’s degree requirement went into effect. (Id. ¶ 20.) Fry disliked reporting to McEwen because he believed she performed poorly in her role. (Id. ¶ 21.) Fry requested that a new position be created in his department for him that would have Fry reporting to his then-subordinate, Elgin. (Id. ¶ 22.) The new position of clinical nurse was created, and Elgin hired Fry to fill it. (Id. ¶¶ 23, 25.) Fry’s new position was effective June 3, 2017. (Id. ¶ 27.) The Joint Commission on Accreditation of Healthcare Organizations (the “Joint Commission”) is an independent organization that accredits healthcare facilities throughout the country. (Id. ¶ 29.) The Joint Commission conducts unannounced on-site surveys of

healthcare facilities during pre-planned windows of time every three years. (Id. ¶ 30.) A healthcare facility can lose its accreditation (and, therefore, its Medicare funding) if a Joint Commission survey identifies a serious threat to public or patient safety and it is not mitigated within 72 hours. (Id. ¶ 31.) The Joint Commission conducted an unannounced survey at Columbia beginning on May 2, 2017. (Id. ¶ 32.) Prior to the Joint Commission arriving, Columbia received information regarding certain areas its surveyors would focus on, one of which was suicide risk mitigation in Behavioral Health. (Id. ¶ 34.) Columbia was also informed that the Joint Commission had taken an “extreme position” on “ligature risk,” (i.e., items that can be used for self-strangulation) and were specifically looking at ligature risk. (Id. ¶ 35.) Based on this information, Fry and his staff performed a “ligature risk assessment” two weeks before the Joint Commissioner’s survey of Columbia. (Id. ¶ 36.) On the first day of the survey, the Joint Commission identified various ligature risks in Columbia’s Inpatient Behavioral Health Unit. (Id. ¶ 37.) After identifying these risks, the

Joint Commission began to scrutinize the entire hospital more closely, which resulted in the identification of additional issues in other departments. (Id. ¶ 38.) During the survey, the Joint Commission asked Columbia to produce a report regarding safety events by 7:30 a.m. the next morning. (Id. ¶ 40.) Fry asserts that McEwen sent him a text message asking him to compile the report at 8:00 p.m. the night before the report was due. (Id.) Fry called McEwen and told her that he would arrive to work early the next morning to prepare the report. (Id. ¶ 42.) The next morning, while Fry was working on the report, a surveyor identified a ligature risk on an unattended medical cart in the Inpatient Behavioral Health Unit, and a

staff member called Fry to come to the floor where the cart and surveyor were. (Id. ¶ 43.) Fry told the staff member to handle the identified risk as he was working on the report McEwen asked him to complete the night before. (Id. ¶ 45.) Fry told the staff member that he “can’t be in two places at once.” (Id. ¶¶ 44–45.) The surveyor heard Fry’s statement that he “can’t be in two places at once” after being called about the cart and suggested to McEwen that it was demonstrative of the cultural problem he observed in Behavioral Health. (Id.

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Fry v. Ascension Health Ministry Services, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fry-v-ascension-health-ministry-services-wied-2021.