Nurse fired for refusing orders to avoid coworker who complained about her, not for later reporting him as a harasser
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Friday, August 2, 2019

Nurse fired for refusing orders to avoid coworker who complained about her, not for later reporting him as a harasser

By Marjorie Johnson, J.D.

Hospital management properly handled an intractable feud between coworkers, each claiming they were harassed by the other. But the nurse who was fired disregarded management’s repeated directive to avoid any contact with her foe that was not related to patient care.

A hospital did not violate Title VII by suspending and then discharging a female nurse who, despite repeated directives to avoid any contact with a male coworker that did not involve patient care, kept engaging in non-work-related communications with him after he complained about her unprofessional behavior. Dismissing her entire lawsuit on summary judgment, a federal court in Indiana found that the hospital could not be liable for any hostile work environment that she claimed the coworker had created because it took reasonable corrective action by trying to stop the two from having contact with each other. Her gender bias and retaliation claims also failed; her coworker did not engage in the same misconduct and therefore was not similarly situated, and there was no evidence in the record suggesting pretext (Marshall v. Ascension Health, July 25, 2019, Sweeney, J.).

Coworker complains first. In 2009, the nurse started working with the coworker, a male nurse-anesthetist, in the surgery department. Though she didn’t complain about his alleged harassment until May 2014, he began complaining about her in August 2013, when he reported that she was putting unsolicited notes in his locker and arguing with him unprofessionally. In response, she was told to avoid any communication with him that was not specifically related to a patient.

Ignores warnings. A month later, she purportedly approached him about his "nerve to complain about her." He complained and their supervisor escalated the matter to the hospital’s administrator who, along with the HR manager, issued her a warning for disregarding instructions against speaking with the coworker about personal issues.

Altercation. The two then had a disagreement in April 2014 during which he told her "Don’t tell me how to do my f**king job." After they each complained, she was issued another written warning for failing to follow the directive not to engage him personally. Management also held a joint meeting with them on May 5, at which she complained about his ongoing harassment and he expressed his belief that she had romantic feelings toward him. She was subsequently directed to seek counseling from the employee assistance program.

Transfer doesn’t solve problem. On January 29, 2015, he again complained after she allegedly asked him why he was mad at her and could not forgive her. Management met with them to discuss the matter but disbelieved the nurse’s claim that the discussion regarded patient care. She was placed on an unpaid suspension and later transferred to a different department so that the two would not be in contact. However, HR soon received complaints that she was making others uncomfortable by speaking about their relationship, and he complained that she was defaming him.

Discharged. The HR manager and administrator interviewed numerous employees, and the nurse admitted that she had spoken with several people about her history with him and asked them to pray for them. She was consequently terminated based on her continued failure to follow instructions regarding appropriate workplace conduct and interactions with the coworker.

Claims coworker was harasser. The nurse alleged that it was widely known that the coworker had "anger management problems" and had yelled at her during her training. His interactions then turned "sexual" when he allegedly stared at her with a "beet red" face and stated, "you’re my problem." She also claimed that he made sexual remarks at least two other times. First, when she said she was going to "take all of this off," referring to heart monitor leads hooked up to patient, he allegedly responded, "I’ve been waiting to hear [you] say that for a long time." Second, when he leaned over her shoulder and said, "I see something," she claimed that he was referencing his view down her shirt.

She also generally alleged that he "darted in front of her," stared at her from down the hallway, "flipped off" her and her coworkers, and struck her worktable to get her attention. She claimed that all of this behavior occurred before her initial discipline in August 2013, but she could not recall whether she reported any of the harassment prior to the meeting on May 5, 2014.

No liability for coworker’s harassment. Even if the nurse’s hostile work environment claim was not time-barred pursuant to the continuing violation doctrine, the hospital could not be held liable for the coworker’s harassment. First, there was no evidence that he directed her day-to-day work: He was not her supervisor. Therefore, the hospital could only be held vicariously liable for his harassment as a coworker since it responded reasonably.

Hospital did everything right. Under Seventh Circuit precedent, it was a reasonable response to separate the two individuals involved in the dispute. When it was first put on notice of an issue between them in August 2013, the nurse’s supervisors acted by restricting their interactions to patient issues and then separating them into different departments in early 2015. This response was both reasonable and effective "but for" the nurse’s failure to comply with management’s instructions.

The hospital also responded reasonably by investigating both the nurse’s and coworker’s complaints after the May 5 meeting by interviewing several employees. Private meetings were also held between the nurse, the coworker, and hospital executives regarding her allegations, and management conducted staff-wide meetings to discuss sexual harassment policy.

No discrimination. The court also tossed her sex discrimination claim. The record overwhelmingly showed that the adverse actions were taken against her because she consistently ignored specific directions regarding contact with the coworker and appropriate workplace conduct. She couldn’t show that he engaged in similar misconduct: There was no evidence that he was ever found to have ignored a supervisor’s orders, inappropriately approached her in the workplace, or made his coworkers uncomfortable in a comparable manner.

No retaliation. Finally, the nurse’s retaliation claim also failed because she could not establish a causal connection between her complaint at the May 2014 meeting and her unpaid suspension and subsequent termination in February and August 2015. The lapse of time did not preclude her from establishing a causal connection; rather, it meant that additional proof was necessary. However, she failed to provide any evidence to rebut the hospital’s nonretaliatory reasons for both suspending and firing her.

The case is No. 1:17-cv-02211-JRS-DML.

Attorneys: Michael Shaun Dalrymple (Michael S. Dalrymple, Attorney at Law) for Stacy Marshall. Alan L. McLaughlin (Littler Mendelson, PC) for Ascension Health, St. Vincent Medical Group and St. Vincent Salem Hospital, Inc.

Companies: Ascension Health; St. Vincent Medical Group; St. Vincent Salem Hospital, Inc.

Cases: CoverageLiability Discrimination SexDiscrimination SexualHarassment Procedure Retaliation IndianaNews

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