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Lorna Nurse v. Lutheran Medical Center

February 27, 2012

LORNA NURSE,
PLAINTIFF,
v.
LUTHERAN MEDICAL CENTER,
DEFENDANT.



The opinion of the court was delivered by: Matsumoto, United States District Judge:

MEMORANDUM AND ORDER

Plaintiff Lorna Nurse ("Nurse" or "plaintiff"), a former employee of defendant Lutheran Medical Center ("LMC" or "defendant"), brought this action alleging that she was terminated from her job as a Nurse Practitioner based on her race (Black) and national origin (Barbadian), in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. Presently before the court is defendant's motion for summary judgment pursuant to Federal Rule of Civil Procedure 56. For the reasons set forth below, defendant's motion is granted.

BACKGROUND

I.Facts

The following facts are undisputed unless otherwise noted. The court has considered whether the parties have proffered admissible evidence in support of their positions and has viewed the facts in the light most favorable to the non-moving plaintiff.

A.Plaintiff's Employment with Lutheran Medical Center

Plaintiff is a Black woman who was born in Barbados, immigrated to the United States in 1975 at the age of 13, and thereafter naturalized. (ECF No. 26-8, Defendant's Statement of Uncontested Facts Pursuant to Rule 56.1 of the Local Civil Rules, dated 4/5/2011 ("DSOF") ¶ 1; ECF No. 27-7, Plaintiff's Response to Defendant's Statement of Uncontested Facts Pursuant to Local Rule 56.1, dated 5/5/2011 ("PSOF") ¶ 1; ECF No. 26, Affirmation of Roger H. Briton in Support of Defendant's Motion for Summary Judgment, Ex. 1, Deposition of Lorna Nurse, dated 7/27/2010 ("Nurse Dep.") at 37.)*fn1 In 1992, plaintiff commenced employment as a nurse for defendant LMC. (DSOF ¶ 3; PSOF ¶ 3; ECF No. 12, Amended Complaint, filed 6/30/2010 ("Compl.") ¶ 7.) LMC is a health care system consisting of various medical facilities and programs, including a School Health Program. (DSOF ¶ 6; PSOF ¶ 6.) In 1996, plaintiff applied for and obtained a transfer to LMC's School Health Program as a Nurse Practitioner ("NP") at P.S. 10. (DSOF ¶ 4; PSOF ¶ 4.) As an NP, plaintiff's duties were, inter alia, to care for and examine students at P.S. 10, interact with school administrators, students, and their families, and supervise the Medical Assistant ("MA") assigned to P.S. 10. (DSOF ¶¶ 9-10, 12; PSOF ¶¶ 9-10, 12.) The MA's duties included preparing patients for the NP to examine, administering first aid, scheduling examinations, bookkeeping, and contacting students and their families. (DSOF ¶ 11; PSOF ¶ 11.) Although MAs were represented by a union, NPs were not. (DSOF ¶ 13; PSOF ¶ 13; ECF No. 26-11, Affidavit of Patricia Schwimer in Support of Defendant's Motion for Summary Judgment Pursuant to Rule 56.1, dated 3/30/2011 ("Schwimer Aff.") ¶ 8; ECF No. 28-2, Reply Affidavit of Fred Jordan in Support of Defendant's Motion for Summary Judgment Pursuant to Rule 56.1, dated 5/20/2011 ("Jordan Reply Aff.") ¶ 4.) From September 2003 to February 2005, the MA assigned to P.S. 10 was Daisy Garcia. (DSOF ¶¶ 39, 83; PSOF ¶¶ 39, 83.)

As an NP at P.S. 10, plaintiff reported directly to two NP Co-Coordinators: Patricia Schwimer, a Caucasian woman, and Sharon Daisley, an African-American woman. (DSOF ¶¶ 14, 16; PSOF ¶¶ 14, 16.) Ms. Schwimer had more direct supervision over NPs, including plaintiff, and Ms. Daisley had more direct supervision over MAs. (PSOF ¶ 17; ECF No. 27, Affirmation of Robert J. Valli in Opposition to Defendant's Motion for Summary Judgment, Ex. C, Deposition of Sharon Daisley, dated 11/12/2010 ("Daisley Dep.") at 15.) Ms. Schwimer and Ms. Daisley reported to Joan Burns, an African-American woman, who served as Director of Operations for, inter alia, the School Health Program. (DSOF ¶ 18; PSOF ¶ 18.) Fred Jordan, an African-American man, was the Director of Human Resources at LMC and was responsible for providing human resources assistance to the School Health Program. (DSOF ¶ 20; PSOF ¶ 20.) At all relevant times, the physician assigned to oversee medical care at P.S. 10 was Dr. Karen Modeste, a Black woman from Trinidad. (DSOF ¶ 15; PSOF ¶ 15.) In addition, the Principal at P.S. 10 was Concetta Ritorto and the Assistant Principal was Laura Scott. (DSOF ¶ 86; PSOF ¶ 85; ECF No. 26, Affirmation of Roger H. Briton in Support of Defendant's Motion for Summary Judgment, Ex. 3, Plaintiff's Exhibit ("PX") 3 at LMC000280; ECF No. 26, Affirmation of Roger H. Briton in Support of Defendant's Motion for Summary Judgment, Ex. 2, Defendant's Exhibit ("DX") 27.)

Between October 1997 and 2004, Ms. Schwimer prepared periodic performance appraisals in which plaintiff routinely received an overall rating of "superior" or "exceeds expectations." (DSOF ¶ 46; PSOF ¶ 46; DX 8-12.)

B.Lutheran Medical Center's Progressive Discipline Policies

At all times relevant to the instant action, LMC had a published anti-discrimination policy and procedures. (DSOF ¶ 31; PSOF ¶ 31; DX 3.) In addition, LMC's "Human Resources Policies and Procedures" (the "Policies") prescribed the rules of conduct and guidelines for taking corrective action with employees. (PCOF ¶ 14; PX 2 at LMC000669.) The Policies "generally" provided for progressive discipline, pursuant to which "[r]eprimands should normally be issued" in the following order: (i) oral counselings; (ii) first written warning notice; (iii) follow-up warning notices; (iv) suspension/discharge. (PCOF ¶ 18; PX 2 at LMC000673-74.) The Policies further provided that "[g]enerally, no action involving suspension without pay (or discharge) should be taken with an employee who has not first received a written warning." (DSOF ¶ 128; PSOF

¶ 128; PCOF ¶ 22; PX 2 at LMC000674.)

Nevertheless, the Policies set forth a non-exhaustive list of infractions for which discharge without prior warnings was permitted, including but not limited to insubordination, behavior which endangers employee or patient welfare, and fighting. (DSOF ¶ 128; PSOF ¶ 128; PCOF ¶ 22; PX 2 at LMC000674.) Further, at the end of the Policies was a chart listing 30 types of infractions and the corresponding recommended disciplinary action. (PCOF ¶¶ 23-29; PX 2 at LMC000676.) For example, the recommended action was suspension or discharge for "[a]ny harassing conduct in the workplace" (number 21), "[r]efusal to follow instructions of supervisors including refusal to accept legitimate job assignment" (number 23), and "[i]mmoral, indecent or disorderly conduct of any nature" (number 24). (PCOF ¶¶ 27-29; PX 2 at LMC000676-77.) The Policies also stated that "there may be other circumstances which require immediate suspension or discharge." (PX 2 at LMC000674.)

The Policies provided that "neither suspension nor dismissal can be administered without prior review of the recommended action with the Vice President Human Resources or his/her designee." (PSOF ¶ 128; PCOF ¶ 16; PX 2 at LMC000669 (emphasis in original in bold).)

C.Incidents Involving Plaintiff

i.January 20, 2005 Incident with Daisy Garcia

On January 20, 2005, plaintiff wrote to Ms. Schwimer complaining that her MA, Ms. Garcia, had disregarded plaintiff's instructions in connection with scheduling an appointment for a child. (DSOF ¶ 47; PSOF at ¶ 47; DX 16.) On January 24, 2005, Ms. Garcia sent Ms. Daisley a memorandum outlining her view of the interpersonal and other problems between plaintiff and Ms. Garcia. (DSOF ¶ 52; PSOF ¶ 52; ECF No. 26-10, Affidavit of Sharon Daisley in Support of Defendant's Motion for Summary Judgment Pursuant to Rule 56.1, dated 3/30/2011 ("Daisley Aff.") ¶ 4; DX 17.) On February 1, 2005, plaintiff attended a meeting with Ms. Schwimer, Ms. Daisley, and Dr. Modeste. (DSOF ¶ 54; PSOF ¶ 54.) Although plaintiff initially believed the meeting had been called so she could voice her concerns regarding Ms. Garcia's work performance, instead the discussion focused on how plaintiff communicated with and treated her MAs. (DSOF ¶ 54; PSOF ¶ 54.) At the conclusion of the meeting, which lasted 45 minutes to an hour, plaintiff was instructed to "go back and talk to [Ms. Garcia]." (DSOF ¶ 54; PSOF ¶ 54.) However, plaintiff did not follow up with Ms. Garcia. (DSOF ¶ 55; PSOF ¶ 55.)

ii.February 4, 2005 Incident with Daisy Garcia

On February 4, 2005, another incident occurred between plaintiff and Ms. Garcia regarding a telephone call that Ms. Garcia placed to a student's parent. (DSOF ¶ 56; PSOF ¶ 56.) Both plaintiff and Ms. Garcia wrote to Ms. Schwimer, Ms. Daisley, and others relaying their version of the events. (DSOF ¶¶ 56, 65; PSOF ¶¶ 56, 65; DX 18, 19, 23.)

According to plaintiff, the situation arose when Ms. Garcia failed to give a parent a complete telephone message from plaintiff while plaintiff was with a student. (DSOF ¶ 56; PSOF ¶ 56; DX 18, 23.) When plaintiff asked Ms. Garcia to relay the entire message, Ms. Garcia told plaintiff to relax and accused plaintiff of being racist. (DSOF ¶ 56; PSOF ¶ 56; DX 18.) According to plaintiff, Ms. Garcia was angry, but plaintiff was not. (DSOF ¶ 59; PSOF ¶ 59.) Plaintiff reported that Ms. Garcia then handed her the wrong chart, and plaintiff "tossed" the chart toward Ms. Garcia's empty chair. (DSOF ¶ 60; PSOF ¶ 60.) Plaintiff asserted that the chart started to slide, they both reached for it, and Ms. Garcia got to it first. (PSOF ¶ 60; Nurse Dep. at 154.) Plaintiff reported that she then picked up the phone, which was lying on Ms. Garcia's desk, and she briefly spoke to the parent. (DSOF ¶ 62; PSOF ¶ 62.) According to plaintiff, Ms. Garcia was no longer in the room when plaintiff spoke to the parent. (DSOF ¶ 62; PSOF ¶ 62.)

Immediately after the incident, Ms. Garcia called Ms. Daisley and recounted her own version of the incident, including that plaintiff had been physically aggressive toward her. (DSOF ¶ 64; Daisley Aff. ¶ 5.) In a memorandum dated February 7, 2005 to Mr. Jordan, Ms. Schwimer, Ms. Daisley, Ms. Burns, and others, Ms. Garcia wrote that plaintiff had spoken to her in a "very hostile and threatening manner," then "abruptly" come out of plaintiff's office "very angry," and "proceeded to grab [the phone] from [Ms. Garcia] almost hitting [Ms. Garcia's] face with the telephone." (DSOF ¶ 66; PSOF ¶ 66; DX 19.) Ms. Garcia further reported that plaintiff had "abusively poked her finger twice" at charts that Ms. Garcia was holding against her chest. (DSOF ¶ 66; PSOF ¶ 66; DX 19.) Ms. Garcia reported that she had become "very upset and nervous," that plaintiff had "placed [her] in a very hostile, threatening, abusive, irrational environment which is not safe and unproductive to work in," and that she had needed to see her physician "because of the stress [she] was under due to this incident," consequently missing work. (DSOF ¶ 66; PSOF ¶ 66; DX 19.)

Upon receiving plaintiff's and Ms. Garcia's conflicting accounts of the February 4 incident, including Ms. Garcia's report of physical aggression, Ms. Schwimer and Ms. Daisley consulted with Mr. Jordan and Ms. Burns to determine the appropriate next steps. (DSOF ¶ 67; Schwimer Aff. ¶ 19.) Mr. Jordan instructed Ms. Schwimer to refer plaintiff and Ms. Garcia to LMC's Occupational Health Department ("Occupational Health") for an evaluation of their fitness to work; Ms. Burns agreed with this course of action. (DSOF ¶ 68; ECF No. 26-9, Affidavit of Fred Jordan in Support of Defendant's Motion for Summary Judgment Pursuant to Rule 56.1, dated 3/29/2011 ("Jordan Aff.") ¶ 7.)

On February 9, 2005, plaintiff met with Ms. Schwimer and Ms. Daisley, and was shown a written complaint from Ms. Garcia, questioned about the incident, and referred to Occupational Health for an evaluation. (DSOF ¶ 69; PSOF ¶ 69.) At the conclusion of the February 9 meeting, plaintiff was directed not to report for work and understood she was "on suspension" with pay for three days pending her appointment with Occupational Health. (DSOF ¶ 70; PSOF ¶ 70; Nurse Dep. at 175-78.) On February 10, 2005, plaintiff met with an Occupational Health physician's assistant who asked her some questions about the February 4 incident and referred her to an LMC psychologist, Dr. Marc Rand. (DSOF ¶ 71; PSOF ¶ 71.) Plaintiff was subsequently allowed to return to work pending her appointment with Dr. Rand. (DSOF ¶ 72; PSOF ¶ 72; Nurse Dep. at 175-78.)

On February 11, 2005, plaintiff wrote to Ms. Burns, with copies to Mr. Jordan and Ms. Schwimer, setting forth her version of the February 4 incident and denying any physical contact with Ms. Garcia. (DSOF ¶ 74; PSOF ¶ 74; DX 23.) In a letter dated February 17, 2005, Ms. Schwimer gave plaintiff feedback on her letter, requesting that she correct some typographical and punctuation errors and resubmit the letter. (DSOF ¶ 74; PSOF ¶ 74; DX 24.) Ms. Schwimer's letter acknowledged that plaintiff was "attempting to present [her] case in a situation of potential serious disciplinary action, action that may cost one or both parties their job." (DX 24.) Plaintiff corrected the typographical errors and resubmitted the letter on February 18, 2011. (DSOF ¶ 74; PSOF ¶ 74; DX 23.)

Although plaintiff was scheduled for an evaluation by Dr. Rand on February 22, 2005, she cancelled the appointment without providing an explanation. (DSOF ¶ 77; PSOF ¶ 77.) Plaintiff later explained that she sought advice as to whether it was legal for her employer to subject her to a psychological evaluation. (DSOF ¶ 78; PSOF ¶¶ 77-78.) On March 2, 2005, plaintiff was evaluated by Dr. Rand. (DSOF ¶ 79; PSOF ¶ 79.) He told her that he thought she "needed a little bit" of "anger management classes," but cleared her to return to work. (DSOF ¶¶ 80-81; PSOF ¶¶ 80-81; DX 26.) Plaintiff was not disciplined in the aftermath of the February 4, 2005 incident. (DSOF ¶ 84; PSOF ¶ 84.)

Ms. Schwimer advised plaintiff that Ms. Garcia was in the process of being evaluated by a psychologist and that Ms. Garcia was deciding whether to file a charge against plaintiff because plaintiff was accused of hitting Ms. Garcia. (DSOF ¶ 76; PSOF ¶ 76; Nurse Dep. at 187-88.) Subsequently, plaintiff was advised that Ms. Garcia had declined to file a charge. (DSOF ¶ 76; PSOF ¶ 76; Nurse Dep. at 187-88.)

Ms. Garcia was evaluated by a psychologist and was also cleared to return to work.*fn2 (See DSOF ¶¶ 76, 82; PSOF ¶¶ 76, 82.) Ms. Garcia was subsequently reassigned to a different school, and plaintiff no longer worked with her. (DSOF ¶ 83; PSOF ¶ 83.)

iii.April 12, 2005 Incident with a Parent, the Principal, and Patricia Schwimer

Between April 8 and April 12, 2005, an incident occurred between plaintiff and a student's parent. (DSOF ¶ 86; PSOF ¶¶ 94-95; DX 27.) On April 8, the parent called plaintiff and angrily demanded to know why her son had been brought to plaintiff's office by another child. (DSOF ¶ 94; PSOF ¶ 94; Nurse Dep. at 215-16.) After plaintiff tried to reason with the parent, plaintiff hung up the telephone while the parent was still speaking. (DSOF ¶¶ 88, 94; PSOF ¶ 94; Nurse Dep. at 216-17.)

In a memorandum to Ms. Schwimer dated April 12, 2005, Concetta Ritorto, the Principal of P.S. 10, reported that the parents had "demanded to see the principal" and complained to her that plaintiff had been "[r]ude, had [an] attitude and spoke with disrespect" over the telephone. (DSOF ¶ 88; PSOF ¶ 88; DX 27.) Ms. Ritorto also reported that the parents were concerned that the student had told his parents - and subsequently told the Principal and the Assistant Principal, Laura Scott - that plaintiff had asked the student whether his "mom was good or bad" and that he was "afraid" and "nervous." (DSOF ¶ 88; PSOF ¶ 88; DX 27.)

On April 12, 2005, Ms. Ritorto and Ms. Scott held a meeting with plaintiff and the parent in an attempt to mediate their dispute. (DSOF ¶¶ 89, 95; PSOF ¶¶ 89, 95; DX 27.) During the meeting, the parent accused plaintiff of asking her son whether his mother was good or bad and violating her son's rights. (DSOF ¶¶ 89; PSOF ¶ 95; DX 27; Nurse Dep. at 219.) It is undisputed that plaintiff then asked the parent, "are you serious, lady?" (DSOF ¶¶ 89, 95; PSOF ¶¶ 89, 95.)

Following plaintiff's question, according to Ms. Ritorto, the parent and plaintiff proceeded to "speak over each other and the communication broke down." (DSOF ¶ 89; PSOF ¶ 89; DX 27.) Plaintiff admits that when the parent interrupted her, she told the parent to "be quiet." (DSOF ¶ 96; PSOF ¶ 96; Nurse Dep. at 220.) Ms. Ritorto further reported to Ms. Schwimer that when she "felt the conversation could not be brought to a resolution," she asked plaintiff to leave the room. (DSOF ¶ 89; PSOF ¶ 89; DX 27.) According to Ms. Ritorto, she asked plaintiff to leave three times before plaintiff finally left. (DSOF ¶ 89; PSOF ¶ 89; DX 27.) Ms. Ritorto reported that she requested that plaintiff leave because she felt the conversation could not be resolved, the parent needed to be calmed, and that because plaintiff was a professional, "she would understand that this was the best course of action for the moment." (DSOF ¶ 89; PSOF ¶ 89; DX 27.)

Plaintiff, on the other hand, acknowledges being "upset" and "angry," but denies arguing with or talking over the parent during the April 12, 2005 meeting. (DSOF ¶¶ 97, 99; PSOF ¶¶ 97, 99.) According to plaintiff, the parent yelled at her and threatened her with bodily harm. (DSOF ¶ 96; PSOF ¶ 96; Nurse Dep. at 219-20.) Plaintiff denies that Ms. Ritorto ever asked her to leave the room. (DSOF ¶ 98; PSOF ¶ 98.) Rather, plaintiff states that Ms. Ritorto interrupted her and told her that the meeting was over, so plaintiff left. (DSOF ¶ 98; PSOF ¶ 98.)

Ms. Ritorto and Ms. Scott then spoke with the child, who was brought into the room and stated, inter alia, that "[t]he nurse asked [me] questions if my mom was good ...


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