By Lorene D. Park, J.D. An African-American nurse who was fired after several instances of poor patient care in a single day had her Title VII race discrimination revived on appeal after the D.C. Circuit found questions of fact concerning whether non-African-American nurses who worked under the same supervisors and committed similar infractions were not fired. Based on this and other evidence of pretext, summary judgment for the hospital was reversed (Wheeler v. Georgetown University Hospital aka Medstar – Georgetown Medical Center, February 12, 2016, Wilkins, R.). Bad patient care. According to the reports of four nurses who worked on the clinical nurse’s same unit on December 27, 2009, the employee (who was working as a floater on the ICU that day) made a number of significant mistakes. Reports included that she: left a patient’s IV bag empty; set an IV to deliver the wrong medication; failed to properly record patient vital signs for at least two patients; left one patient, who could not make intentional movements, in an awkward position slouched over, so that she soaked her gown and sheets through with her own oral secretions; and twice left patients lying in their own dried stool. Investigation and termination. On December 30, the clinical manager (who was the employee’s immediate supervisor) and the clinical director spoke with the nurse to notify her that she was suspended pending an investigation. Each of the four nurses who made the reports was interviewed; the employee was asked to provide a written explanation for the incidents, which she provided in two emails to a human resources representative. The decision was made to terminate the employee and she was notified on January 8, 2010. The notification letter stated that she was being terminated because her actions on December 27 “reflected a serious lack of clinical judgment and jeopardized the health and safety of [the Hospital’s] patients.” Were non-African-American nurses treated better? The employee filed suit alleging race discrimination in violation of Title VII and the court tossed her claim out on summary judgment. Reversing, the D.C. Circuit found questions of fact on whether the performance-based reason for the employee’s termination was pretextual. It first noted evidence that similarly situated nurses who were not African-American were disciplined less harshly for their own misconduct. Specifically, the employee identified six other nurses whom she believed were similarly situated but treated more favorably than she was despite their “gross misconduct.” She claimed that three of the comparators administered the wrong dosage of heparin; the fourth nurse failed to document a patient’s changed mental status and delayed treatment; the fifth withheld prescribed sickle cell medication in contradiction to the doctor’s orders; and the sixth nurse failed to provide a patient with a needed bite block. However, unlike the employee, these nurses were not fired. Comparators similarly situated. In the appellate court’s view, a jury could find that these six nurses were similarly situated enough to be proper comparators for a disparate treatment analysis. They were all registered nurses working in the same or a comparable unit of the hospital, and there were at least questions of fact on whether they were subject to the same decisionmakers, including the same clinical manager and/or clinical director involved in the employee’s termination decision. For example, the evidence showed that the employee’s supervisor also supervised the nurse who discontinued sickle cell anemia medication contrary to a doctor’s order yet chose to merely counsel this employee rather than firing her. Comparable misconduct. The appeals court also found a triable question on whether the comparators’ alleged misconduct was of comparable seriousness to the employee’s. One category of misconduct that could lead to termination by the hospital without prior discipline was “gross misconduct,” including “severe work performance problems.” The hospital’s corporate representative testified that negligence in the care of a patient and negligent medicine administration could fall within this category. Based on this testimony, it would be reasonable to view the employee’s termination for “poor work performance and failure to follow hospital policy and procedure” as coming within the “gross misconduct” category, but it would also be reasonable to view the actions of the proposed comparators as rising to that level. Indeed, when asked about some of the comparators’ mistakes, the corporate rep testified that those circumstances could be characterized as negligence in the care of a patient or negligent medicine administration. After-the-fact justification. Though the hospital tried to distinguish the employee from her comparators based on her prior history of performance issues, at least two of the comparator nurses also had prior performance issues that led to either counseling or discipline. Moreover, this appeared to the court to be an after-the-fact justification because the termination letter and the hospital’s interrogatory responses referred only to the events of December 27 as the basis for termination; the hospital did not mention past performance until the clinical manager testified in October 2013. This only bolstered the employee’s argument that her termination was pretextual, found the appeals court. Clinical manager’s history suggests pretext. What was also striking to the court was a list provided by the hospital identifying all the nurses disciplined by the clinical manager in the past five years. According to the employee’s testimony, none of the comparators she identified was on that list and no one on the list was white. A jury could therefore conclude that the clinical manager had a history of only disciplining non-white nurses.
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