Banks v. Jackson Hospital & Clinic, Inc. et al
OPINION. Signed by Honorable Judge Myron H. Thompson on 6/27/2012. (dmn, )
IN THE DISTRICT COURT OF THE UNITED STATES FOR THE
MIDDLE DISTRICT OF ALABAMA, NORTHERN DIVISION
VIOLA H. BANKS,
JACKSON HOSPITAL & CLINIC, )
CIVIL ACTION NO.
Plaintiff Viola H. Banks brought this lawsuit against
defendant Jackson Hospital & Clinic, Inc., alleging raceand age-based discrimination in violation of Title VII of
the Civil Rights Act of 1964, 42 U.S.C. §§ 1981a & 2000e
Jurisdiction is proper under 28 U.S.C. §§ 1331 and 1343,
29 U.S.C. § 626(c), and
42 U.S.C. § 2000e–5(f)(3).
case is now before the court on the hospital’s motion for
For the reasons that follow, that
motion will be granted.
“The court shall grant summary judgment if the movant
shows that there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter
Fed. R. Civ. P. 56(a).
The court must view the
admissible evidence in the light most favorable to the
non-moving party and draw all reasonable inferences in
that party’s favor.
Matsushita Elec. Indus. v. Zenith
Radio Corp., 475 U.S. 574, 587 (1986).
Banks, an African-American female was 57 years old
when she applied to work at Jackson Hospital in the fall
submitted to a drug test, which came back negative.
was then hired, given a copy of the hospital’s drug
distributing medication to patients.
The hospital used Omnicell (an automated pharmacy
distribution of medication to patients.
report for April 2010 indicated an usually high number of
To determine the cause of that spike, the hospital
obtained a “Transactions by User Report” (TUR), which
offered specific information about the name and quantity
of each narcotic that Banks retrieved from the Omnicell
cart, the date and time of each retrieval, and the name
of the patient for whom the medication was intended.
TUR was then compared to the various patients’ medical
charts in order to determine whether the medication Banks
retrieved from the cart was actually administered.
analysis uncovered numerous inconsistencies, including
instances where Propoxyphene, a narcotic available under
the trade names Darvon or Darvocet, was retrieved from
the cart, but not administered to any patient, and times
when Banks failed to record the amount of Propoxyphene
Although Banks insists that she was never told about
these discrepancies, she offers absolutely no evidence
that would undermine the reports offered by the hospital.
reasonableness of the hospital’s assumption that she was
taking Propoxyphene from the cart and either using it
herself or dealing it to others.
When Banks was confronted about her potential drug
use, she denied having a drug problem and informed Human
Resources that she had a Darvocet prescription.
supervisor, James Epperson, informed her that a “valid”
prescription would shield her from a positive drug test
and ordered her to undergo testing at an independent lab.
Banks Decl. ¶ 10 (Doc. No. 36-1).
The hospital’s TUR report analysis had
revealed four retrievals of Propoxyphene by Banks between
patient’s record suggested irregularities (three failures
to document any distribution to a patient and a fourth
time where the specific number of tablets administered
was not recorded).
An independent Medical Review Officer
confirmed Banks’s positive drug test.
There is no admissible evidence demonstrating that
Banks ever provided a copy of a valid prescription to
either her supervisor or the independent drug-testing
facilities. Indeed, during her deposition, Banks readily
admitted that any prescription she might have had for
Darvocet “was old.”
Banks Dep. 162:2-3 (Doc. No. 25-1).
Banks was terminated in May 2010.
filled by Dimple Patrick.
Her position was
Patrick, an African-American
female, was 60 years old at the time she began work at
Both Banks’s race-discrimination claim and her agediscrimination
burden-shifting analysis set forth in McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973).
See Chapman v. AI
Transp., 229 F.3d 1012, 1024 (11th Cir. 2000) (applying
McDonnell Douglas in the age-discrimination context);
Crawford v. Carroll, 529 F.3d 961, 975-76 (11th Cir.
2008) (noting McDonnell Douglas’s application in the
Under McDonnell Douglas,
A prima-facie case requires “evidence
Int’l Bhd. of Teamsters v. United States,
431 U.S. 324, 358 (1977).
A prima-facie case raises a
presumption of illegal discrimination, Texas Dep’t of
Cmty. Affairs v. Burdine, 450 U.S. 248, 254 (1981), and
shifts the burden of production to the defendant who must
rebut the presumption of discrimination by articulating
Chapman, 229 F.3d at 1024.
evidence that the stated reason did not in fact motivate
the adverse-employment action,
but was rather a “pretext
Burdine, 450 U.S. at 253.
defendant is appropriate.
For purposes of resolving this motion for summary
judgment, the court assumes, but does not find, that
Banks has made out a prima-facie case of both race and
That Banks tested positive for the
precise narcotic disappearing from her Omnicell cart,
thereby giving the hospital reason to believe she had
stolen and then used illicit narcotics, is obviously a
See Pears v. Mobile County, 645 F. Supp. 2d
1062, 1090 (S.D. Ala. 2009) (Steele, J.) (finding that a
positive drug test is “unquestionably” a “legitimate
nondiscriminatory reason” for discharging an employee).
Banks does not argue otherwise.
Instead, she insists
that the stated justification was a mere pretext for
racial and age-based animus.
Banks’s central argument on
standard” when deciding her fate than it did to two
younger, white employees. This argument is unpersuasive.
The policy in question states that an employee who
“receive[s] a confirmed positive test for the presence of
an ... unauthorized substance may be terminated from
Policy at 1 (Doc. No. 36-1).
standard” was applied to two white women who either
admitted to using or tested positive for narcotics, but
harsher standard that is not found in the [hospital’s]
policies and procedures.”
Pl.’s Sup. Brief in Opp. to
Def.’s Mot. for Summ. J. at 4 (Doc. No. 55).
argument mistakenly equates flexibility with leniency.
The mere fact that Banks did not receive the lightest
possible punishment does not mean that she was judged
under a harsher standard than her peers were: the policy
does not require clemency, it merely permits it.
case, there is absolutely no evidence that the hospital’s
actions were motivated by anything other than what it
perceived to be Banks’s theft of illicit narcotics and
subsequent positive drug test and the policy plainly
states that termination is a proper punishment for such
The two so-called comparators--the younger, white
medication distribution practices, they each admitted
substance-abuse problem, and consented to entering into
Alabama Board of Nursing to help nurses struggling with
addiction reenter the profession.
Admission to that
program requires the nurse first to admit to his or her
Darrington Aff. ¶ 5 (Doc. No. 58-1).
Banks made no such concession, she did not qualify for
It is therefore unreasonable for her to
rehabilitation in lieu of termination: her own actions
precluded her participation in that program.
See Nix v.
WLCY Radio/Rahall Commc’ns, 738 F.2d 1181, 1186 (11th
Cir. 1984) (“If an employer applies a rule differently to
quotation marks and alterations omitted)).
In sum, Banks has offered no evidence tending to show
that her termination was motivated (even in part) by
either race or age.
She has therefore failed to carry
her burden under McDonnell Douglas and the hospital is
For the foregoing reasons, summary judgment will be
entered in favor of Jackson Hospital and against Banks.
An appropriate judgment will be entered.
DONE, this the 27th day of June, 2012.
/s/ Myron H. Thompson
UNITED STATES DISTRICT JUDGE
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