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Butler v. Cardiff Healthcare, Inc.

United States District Court, D. Utah

August 8, 2019

BRIAN BUTLER, Plaintiff,



         Before the court are two motions for summary judgment: (1) a motion filed by defendants Cardiff Healthcare, Inc. and the Ensign Group, Inc. (collectively, “Defendants”) and (2) a motion filed by plaintiff Brian Butler (“Butler”). The court DENIES both motions.


         Butler began working for Defendants in April 2009 as a certified nursing assistant. In or around 2011 or 2012, Butler accepted the position of plant manager at the Paramount Health and Rehabilitation Center (“Paramount”). Prior to November 2016, Butler's duties as plant manager included supervision of Paramount's maintenance, housekeeping and laundry departments. Butler also oversaw van driving and central supply, which involved ordering supplies for the Paramount facility. Butler supervised four to five employees, including an assistant and housekeeping and laundry staff. Butler had the authority to hire and fire these employees.

         In November 2016, Paramount hired a new executive director, Mark Nelson (“Nelson”). Nelson was Butler's direct supervisor. Butler testified that Nelson told him that he was no longer authorized to hire or fire other employees without Nelson's direction or approval. Additionally, Butler was no longer in charge of van driving. Notwithstanding these changes, Butler retained his title and pay and continued to supervise the housekeeping and laundry departments, which consisted of three full-time employees and one part-time employee. Throughout his time as plant manager, Butler was always compensated on a salary basis in an amount not less than $455 per week.

         On November 21, 2016, Butler had the following text message exchange with Paramount's receptionist, Ali Christensen:

Ali: Brian did you just hire for your housekeeping position? I am posting ads so I just wondered if you need one or not
. . .
Brian: . . . Yes waiting for her background ok On May 9, 2017, Butler signed a new hire form as “Manager” for a new housekeeping employee.

         On that same day, he also signed an offer letter as “Supervisor, ” offering that housekeeping employee a position of employment at Paramount. On July 24, 2017, Butler again signed as “Manager” for another new housekeeping employee. Each time that Butler signed as “Manager, ” the signature line for “Executive Director” was left blank.

         The record contains contradictory evidence regarding whether these employees were actually hired on Butler's authority or recommendation. In his affidavit, Nelson stated that Butler did not select employees between October 2016 and September 2017. But K.C. Ellis (“Ellis”), who replaced Nelson as interim executive director on or around September 13, 2017, stated in his deposition that “[b]oth of the employees referenced in these documents were actually hired to be Paramount housekeeping employees on Mr. Butler's authority.” On March 6, 2017, Butler was placed on a Performance Improvement Plan (“PIP”) by Nelson. According to the PIP, Butler's performance areas or issues requiring improvement were as follows: “Organization & cleanliness. Office area needs to be cleaned and organized. Maintenance related assignments need to be followed through and completed in a timely hour. Need to have better communication if assignments/tasks cannot be completed as planned.” The PIP further states: “Failure to correct and meet performance expectations . . . will result in further disciplinary action, up to and including, employment termination.” Although the PIP states that Nelson and Butler had “discussed these things multiple times, ” Butler testified that the PIP was the first time Nelson had spoken with Butler about issues concerning his work performance.

         Following placement on the PIP, Butler's organization and cleanliness improved. On the second page of the PIP, there is a note that is initialed by Nelson dated March 17, 2017. It states: “Reviewed progress from previous week Brian has shown good improvement. Office is neat and organized. W/C log caught up Brian doing well.” A second note, dated March 28, 2017, follows and states: “Brian doing [sic] still organized and clean. Great attitude and contributing to good culture.”

         On April 25, 2017, Nelson sent Butler a formal disciplinary warning via email. The email states: “In reviewing your mileage log you submitted for March, your mileage you are claiming is not accurate.” The email continues: “This is dishonest and in my eyes is theft. Brian, I need to be able to trust you as an employee and this only shows me that you are dishonest and trying to take advantage of your independence in the workplace. Consider this a formal disciplinary warning.” Butler and Nelson subsequently discussed the mileage and Butler informed Nelson that he would calculate his mileage without writing down each separate destination. Butler testified that after speaking with Nelson, “everything was fine” and he therefore didn't consider the email to constitute a formal disciplinary warning. In his affidavit, Nelson also stated that this issue was later “cleared up.”

         On or around September 13, 2017, Nelson's employment with Paramount was terminated, and Ellis took over as interim executive director. On or around that same day, Butler applied for leave under the Family and Medical Leave Act (“FMLA”) for an upcoming neck surgery.

         On September 18, 2017, Butler formally met Ellis one-on-one and informed Ellis that he would be taking FMLA leave. Butler states that immediately after informing Ellis of his upcoming FMLA leave, Ellis “began to target [Butler], harassing him, discriminating against him, setting unreasonable expectations for [him] and treating him disparately.” Specifically, Butler claims that Ellis called him “white trash” and “filthy.” According to Butler, this harassment occurred “[o]nce a day.” Although Butler states that Ellis began harassing him on September 18, 2017 and continued to do so until Butler's termination on October 6, 2017, Butler was absent from work due to a vacation and a sick leave unrelated to FMLA from September 22, 2017 to October 2, 2017.

         Butler states that at some time between September 18, 2017 and September 21, 2017, he spoke with HR representative Julie Kump about the harassment that he felt had resulted from his application for FMLA. Julie Kump instructed Butler to call Paramount's Compliance Hotline and report the harassment. Butler testified that he did so at some point during his sick leave.

         On the morning of September 22, 2017, the day on which Butler was scheduled to depart on vacation, Ellis and Butler met to discuss concerns with Butler's work performance. Following the meeting, Ellis sent Butler an email, outlining those concerns. The email states:

“9/22/2017-We had a discussion about the poor performance that is happening currently at Paramount. During this meeting we discussed the following performance gaps that I am seeing in the facility right now: a) The whole facility is extremely dirty. As the manager of plant, housekeeping, and laundry it is your responsibility to maintain a clean and presentable facility. . . . b) We reviewed the floors in the facility. . . . The floors are not cleaned at this time. . . . c) We discussed that I have concerns that you do not follow up with what you are committing to complete. . . . d) We discussed that I wanted to give you the weekend to think about if this is a job that you currently want. It is an option to you that you can step down . . . . e) We discussed that your performance needs to improve immediately. . . . It was set as a clear expectation that if there is not improvement that your employment as a maintenance director would be terminated. f) We discussed the actions for you to take if you disagree with this final warning that you are receiving.”

         This email also includes an excerpt outlining a similar meeting that the email states occurred on September 19, 2017 between Butler and Ellis. But Butler testified that he and Ellis did not discuss any concerns with Butler's work performance on that day.

         On September 24, 2017, Butler returned from his vacation. The following day, Defendants approved Butler's FMLA request for medical leave beginning October 18, 2017 with an expected return date of December 2, 2017.[1] On September 25, 2017, Butler took sick leave unrelated to his FMLA leave.

         Butler returned from sick leave on October 2, 2017. On October 4, Butler met with Ellis and two other Paramount employees for a performance improvement review. During this meeting, Ellis walked Butler around the Paramount facility and pointed out to Butler a number of ongoing issues related to Butler's work performance. That afternoon, Ellis sent Butler an email recapping the meeting and outlining the ongoing issues that had been pointed out to Butler. The email states, in part: “You agreed that there is a pattern here of maintenance items not getting completed . . . . As discussed today we need to see improvement immediately or you [sic] employment could be terminated. . . . We will again review this list on Friday to monitor improvements.” Ellis testified that “[t]here was no time frame on when this needed to be done.” He continued to state that “[i]t was just that we needed to see some substantial action taken towards a majority of these in a reasonable time frame.” During his deposition, Butler was asked whether he recalled receiving a copy of this email on or about October 4, 2017, to which he responded “[n]o.” He testified that he “never saw [the October 4, 2017] email.”

         On the morning of October 5, 2017, Butler hit his head on a door while working and filled out an incident report. He was diagnosed with a ...

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