By Joy P. Waltemath, J.D. Unhappy with the change in course between a discharged nurse’s deposition, where she said she didn’t know of any other nurses who were treated more favorably after receiving patient and coworker complaints, and her later affidavit attesting to personal knowledge of two white nurses who had neither been fired nor disciplined after patient complaints, the Seventh Circuit found she had not even established a prima facie case of race or age discrimination. The court upheld summary judgment granted to her hospital employer, finding the lack of admissible evidence of similarly situated comparators doomed her case (Simpson v. Franciscan Alliance, Inc., dba Franciscan St. James Health, June 28, 2016, Manion, D.). According to the hospital, multiple complaints from patients and their families, as well as from a physician, resulted in four "employee corrective action reports" within a year. The first two noted that further corrective action could include termination. The third reprimand was based on multiple patient complaints from which the nurse filed a formal appeal but did not allege discrimination; that appeal was unsuccessful. She was discharged after a patient complained that the nurse had confronted her "and removed her morphine pump prematurely after learning about the patient’s complaint that [the nurse] never brought her ice as promised." That final disciplinary action cited hospital policy authorizing discharge for "[d]iscourteous, abusive or inconsiderate treatment of patients." In opposing her employer’s motion for summary judgment on her Title VII and ADEA claims, the nurse had argued that its reliance on the four disciplinary reports was pretextual and that she had been held to a higher standard than employees who were not African-American or were younger than 40. Simpson disputed the truth of the accusations from patients and family members recounted in the reprimands but did not dispute that the accusations had been made. But the lower court found that, although she had made out a prima facie case, she lacked evidence of pretext. Relying on the nurse’s deposition testimony as well as affidavits from the nurse and a coworker, the Seventh Circuit found the nurse had not made out a prima facie case for either age- or race-based discrimination because the record did not contain admissible evidence that a similarly situated employee outside of her protected class was treated more favorably. Comparator evidence. The court first cited the nurse’s deposition, during which she could not identify any potential comparator, essentially conceding that she did not have evidence of similarly situated coworkers being treated more favorably: "Everything that’s written in the office is between you and the manager … I just know about myself." She also submitted her own affidavit attesting to personal knowledge of two white nurses, one of them under age 40, who had not been fired or even disciplined after complaints from patients. One of those nurses, the nurse said, had been accused by a patient of being rude and unprofessional; the other allegedly had received five or six patient complaints in one day. And another nurse’s affidavit claimed personal knowledge of two other nurses who were not disciplined, one after failing to monitor a patient and the other despite chronic tardiness. But, said the appeals court, this was not admissible evidence of other nurses receiving favorable treatment, nor had the nurse supplied a foundation for her claims of having personal knowledge of the alleged misconduct and the employer’s disciplinary response—or lack thereof. Instead, she had "only vague, conclusory assertions about incidents outside her personal knowledge." Evidentiary contradictions. The nurse’s affidavit did not explain how she possibly could possess personal knowledge of the patients’ complaints or the reaction to those complaints by hospital management. Her earlier testimony was she did not know of any similarly situated employee who was not disciplined after engaging in comparable misconduct, and that personnel information was between employee and management. She could "not contradict these admissions without explaining the basis of her personal knowledge in a later affidavit in order to survive summary judgment." One complaint does not a similarly situated comparator make. Specifically addressing one email in the record discussing a patient’s complaint that the nurse and another nurse had been rude, the court questioned whether it could even accept the nurse’s claim that the other nurse had not been disciplined (how would she know?). The court also pointed out there was no evidence of the other nurse’s disciplinary history and performance record with which to compare. Stressing that the nurse’s reprimand for this episode "came after she allegedly went back and confronted the patient upon learning of the patient’s complaint," the appeals court pointed to a lack of evidence the other nurse "compounded her initial rudeness in a similar way." And the nurse here had received two other complaints from patients or family members that same month, in addition to the three previous reprimands. Thus, overall there was a lack of admissible evidence of any similarly situated comparator. Nor did the nurse dispute that the hospital had received four complaints from patients and family members, or that a physician had initiated the first reprimand. Even though she questioned the underlying accusations, the relevant inquiry was whether the stated reason for her discharge was in fact why the hospital fired her, "not whether the action was free of mistake or even fair." Her speculation as to comparators was insufficient.
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