Opinion
Civil Action No: SA-04-CA-323-XR.
August 19, 2005
ORDER
On this date, the Court considered Defendant's Motion for Summary Judgment (docket no. 15). Plaintiffs sue their former employer for race discrimination under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e, et seq. For the reasons stated below, the Court GRANTS the Defendant's motion.
I. Background
Plaintiffs are sisters and LVNs who were employed at Skyview Living Center in San Antonio prior to its closure. Ross was employed from November 1999 to August 2002. Smith was employed from August 9, 2001 to March 19, 2002.
On March 19, 2002, "CM", an elderly resident at Skyview, suffered a seizure. The nurse, Plaintiff Smith, was summoned, concluded that by looking at CM's color and lips she was fine, and left the room. The Facility Director, Jennifer Ramirez Jasiczek, was notified of the situation. Ms. Jasiczek instructed Smith to assess the patient. Smith at that time told the staff they were poorly trained. Ms. Jasiczek instructed Smith that her verbal grumbling was inappropriate, and that after she completed her documentation she was to "clock out." Thereafter, an investigation was conducted by the Facility Investigator, Donnie Welker, who concluded that Smith did not complete (as instructed) an assessment on CM following her seizure, and that Smith failed to properly document which medications had been given CM. Based on the results of the investigation, Ms. Jasiczek terminated Smith's employment.
On August 16, 2002, Plaintiff Ross was instructed by Ms. Jasiczek to assess "JR", an elderly resident, who was vomiting and nauseous. Ross responded that she could tell "JR" was fine and that "JR" was an "attention seeker." After an investigation Ross was discharged for refusal to assess a patient and insubordination.
Ross apparently argues that she visually assessed "JR." In the alternative, she asserts that a non-Black employee (Stella Umphers) only received "write-ups" for not assessing a patient. Smith also asserts that she received disparate treatment because Ms. Umphers engaged in the same conduct but was not discharged.
Ross asserts that inasmuch as Ms. Jasiczek is not a nurse she lacked the knowledge to determine if the patient was suffering a true seizure. She further implies that Ms. Jasiczek does not realize that an assessment may consist solely of a visual inspection.
In addition to the above, Plaintiffs have tendered the affidavit of Stella Umphers. In the affidavit and supporting disciplinary warning notices, Ms. Umphers notes that she was issued written warnings on March 24, 1997 (failing to document a patient's health status), August 1998 (administering incorrect dosage), and again on December 20, 2001 (failing to document medication administration). On August 23, 2002, she was issued a written warning for failing to obtain an assessment on a patient prior to calling the physician. She resigned her employment on September 6, 2002.
II. Summary Judgment Standard
A summary judgment movant must show by affidavit or other evidence that there is no genuine issue regarding any material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). To establish that there is no genuine issue as to any material fact, the movant must either submit evidence that negates the existence of some material element of the nonmoving party's claim or defense, or, if the crucial issue is one for which the nonmoving party will bear the burden of proof at trial, merely point out that the evidence in the record is insufficient to support an essential element of the nonmovant's claim or defense. Lavespere v. Niagra Machine Tool Works, Inc., 910 F.2d 167, 178 (5th Cir. 1990), cert. denied, 510 U.S. 859 (1993). Once the movant carries its initial burden, the burden shifts to the nonmovant to show that summary judgment is inappropriate. See Fields v. City of South Houston, 922 F.2d 1183, 1187 (5th Cir. 1991).Summary judgment is required if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. FED. R. CIV. P. 56(c); Celotex Corp., 477 U.S. at 322. In order for a court to conclude that there are no genuine issues of material fact, the court must be satisfied that no reasonable trier of fact could have found for the nonmovant, or, in other words, that the evidence favoring the nonmovant is insufficient to enable a reasonable jury to return a verdict for the nonmovant. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 n. 4 (1986). In making this determination, the court should review all the evidence in the record, giving credence to the evidence favoring the nonmovant as well as the "evidence supporting the moving party that is uncontradicted and unimpeached, at least to the extent that evidence comes from disinterested witnesses" and disregarding the evidence favorable to the nonmovant that the jury is not required to believe. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 152 (2000).
III. Analysis
A. Elements of a prima facie case of race discrimination
To survive a summary judgment motion, . . . [a Plaintiff] must establish, by a preponderance of the evidence, a prima facie case of intentional discrimination. Shackelford v. Deloitte Touche, LLP, 190 F.3d 398, 404 (5th Cir. 1999). To establish an inference of discrimination, consistent with McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-03, 93 S. Ct. 1817, 36 L. Ed.2d 668 (1973), a plaintiff must show a prima facie case by establishing that the (1) plaintiff is a member of a protected class; (2) plaintiff is qualified for the position; (3) plaintiff suffered an adverse employment action, and (4) plaintiff was replaced with a person who is not a member of the protected class. Bauer v. Albemarle Corp., 169 F.3d 962, 966 (5th Cir. 1999) (citing McDonnell Douglas, 411 U.S. at 802, 93 S. Ct. 1817). After a prima facie case is made, the defendant must articulate a non-discriminatory reason for its actions. Martineau, 203 F.3d at 912. If this is done, the plaintiff must then prove (1) that the defendant's proffered reasons were false, and (2) that the real reason for his discharge was because he was a member of a protected class.Pegram v. Honeywell, Inc., 361 F.3d 272, 281 (5th Cir. 2004).
Disparate treatment of similarly situated employees is one way to demonstrate unlawful discrimination. See Smith v. Wal-Mart Stores, 891 F.2d 1177, 1180 (5th Cir. 1990). To raise an inference of discrimination, the plaintiff may compare his treatment to that of nearly identical, similarly situated individuals. Mayberry v. Vought Aircraft Co., 55 F.3d 1086, 1090 (5th Cir. 1995). To establish disparate treatment, a plaintiff must show that the employer gave preferential treatment to another employee under "nearly identical" circumstances. Okoye v. Univ. of Tex. Houston Health Sci. Ctr., 245 F.3d 507, 514 (5th Cir. 2001).
B. "Nearly identical" circumstances
Defendant first argues that Plaintiffs' circumstances and Umpher's are not identical because their actions were reviewed by different supervisors. Little v. Republic Refining Co., Ltd., 924 F.2d 93 (5th Cir. 1991). Defendant argues that Umphers' write-ups were administered by Theresa Ricord (a lower ranking manager), whereas Plaintiffs were directly fired by the Facility Administrator. The Court is unconvinced by this mere distinction. Under this theory an employer could avoid liability for a discriminatory act by delegating ultimate employment actions to various supervisory personnel. More convincing is the argument that Plaintiffs and Umphers did not engage in "nearly identical" misconduct. Defendant asserts that Plaintiffs refused to assess a patient after being instructed to do so. Umphers, on the other hand, did not refuse to assess a patient. Umphers received a lesser disciplinary action because she failed to obtain an assessment on a patient prior to calling the physician. Umphers did not neglect the patient's condition. Plaintiffs also argue that Umphers was the recipient of numerous written warnings and was not discharged despite her cumulative poor performance. Plaintiffs argue that they had "fewer previous disciplinary actions taken against them . . ." This argument, however, is misplaced. Plaintiffs were terminated because their employer had the impression (correct or not) that Plaintiffs had refused to assess their patients. At no time was Ms. Umphers accused of refusing to assess a patient after being instructed to do so. The Court finds that Plaintiffs have failed to show that their former employer gave preferential treatment to another employee under "nearly identical" circumstances. Bryant v. Compass Group USA Inc., 413 F.3d 471, 478-79 (5th Cir. 2005); Okoye v. Univ. of Tex. Houston Health Sci. Ctr., 245 F.3d 507, 514 (5th Cir. 2001).
The Court notes that Ms. Umphers signed an affidavit that states in paragraph 3 the following: "I was given a Disciplinary Warning Notice on August 23, 2002, for poor work performance and insubordination for failing to assess a patient. The insubordination was eventually crossed out because of a misunderstanding." The attached Disciplinary Warning Notice, however, states: "Poor work performance — failed to obtain an assessment on SA 246 prior to calling physician. Without assessment, proper information could not have been given to physician." The insubordination statement was struck through.
C. Defendant's articulated non-discriminatory reasons for its actions
As stated above, Defendants assert that Plaintiffs refused to assess a patient after being instructed to do so. Accordingly, Plaintiffs must then prove (1) that the defendant's proffered reasons were false, and (2) that the real reason for their discharge was because of their race (Black).
Plaintiffs argue in paragraph 10 of their Response (docket no. 17) that they were familiar with their patients, they assessed the patients and determined that they were not in danger, they are experienced nurses and the Facility Administrator is not a nurse, and the Facility Administrator "instructed Plaintiffs to perform duties that were not necessary or previously performed." Plaintiffs, however, provide no evidence refuting the employer's position — that they were instructed to assess a patient and they refused to follow the instruction. Regardless of whether they previously visually assessed their patients, their employer was within its prerogative to demand that they assess (again) the patients. Plaintiffs provide no evidence that they complied with the directive (no matter how absurd they thought the directive to be). Other than the above, Plaintiffs merely provide their subjective belief that race discrimination was the cause of their discharge. However, it is well established that such a belief is not competent summary judgment evidence.
Defendants respond that during the period Plaintiffs were employed at Skyview, 73% of its workforce consisted of African-Americans.
Conclusion
The Court concludes that, for the reasons stated above, Defendant's motion for summary judgment (docket no. 15) is GRANTED. This case is DISMISSED with prejudice. The Clerk is ORDERED to prepare a judgment consistent with this Order.