Banks v. Jackson Hospital & Clinic, Inc. et al

Filing 67

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,

)
)
Plaintiff,
)
)
v.
)
)
JACKSON HOSPITAL & CLINIC, )
INC.,
)
)
Defendant.
)

CIVIL ACTION NO.
2:11cv462-MHT
(WO)

OPINION
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
through

2000e–17,

Employment

Act

and

of

the

1967,

Age
29

Discrimination

U.S.C.

§§

in

621–634.

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).

This

case is now before the court on the hospital’s motion for
summary judgment.

For the reasons that follow, that

motion will be granted.

I.
“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
of law.”

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).

II.
Banks, an African-American female was 57 years old
when she applied to work at Jackson Hospital in the fall
of

2009.

As

a

condition

of

her

employment,

Banks

submitted to a drug test, which came back negative.

She

was then hired, given a copy of the hospital’s drug
policy,

and

entrusted

with,

among

distributing medication to patients.

2

other

things,

The hospital used Omnicell (an automated pharmacy
inventory

and

tracking

program)

to

distribution of medication to patients.

monitor

the

The Omnicell

report for April 2010 indicated an usually high number of
medication
code.

distributions

under

Banks’s

identification

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.

The

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.

That

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

3

when Banks failed to record the amount of Propoxyphene
actually administered.
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.
Nor

does

Banks

offer

any

evidence

undermining

the

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.

Her

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).
Banks’s
Propoxyphene.

initial

screen

came

back

positive

for

The hospital’s TUR report analysis had

revealed four retrievals of Propoxyphene by Banks between

4

April

19

and

May

3,

2010,

where

the

corresponding

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
the hospital.

5

III.
Both Banks’s race-discrimination claim and her agediscrimination

claim

are

analyzed

under

the

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
race-discrimination context).
Banks

must

first

discrimination.

demonstrate

Under McDonnell Douglas,
a

case

of

A prima-facie case requires “evidence

adequate

to

create

an

inference

decision

was

based

on

a[n]

criterion.”

prima-facie

that

[illegal]

an

employment

discriminatory

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

6

rebut the presumption of discrimination by articulating
a

legitimate,

non-discriminatory

employment action.
a

reason

is

given,

reason

for

Chapman, 229 F.3d at 1024.
the

plaintiff

must

then

its

If such
produce

evidence that the stated reason did not in fact motivate
the adverse-employment action,
for discrimination.”
plaintiff

fails

to

but was rather a “pretext

Burdine, 450 U.S. at 253.
do

so,

summary

judgment

If the
for

the

defendant is appropriate.

IV.
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
age discrimination.

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
legitimate,

non-discriminatory

7

reason

for

her

See Pears v. Mobile County, 645 F. Supp. 2d

termination.

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.
this

issue

is

that

the

Banks’s central argument on

hospital

applied

“a

harsher

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
employment.”
on

the

word

Policy at 1 (Doc. No. 36-1).
“may”

and

insists

that

Banks focuses

this

“flexible

standard” was applied to two white women who either
admitted to using or tested positive for narcotics, but
were

not

terminated,

while

she

“was

judged

under

a

harsher standard that is not found in the [hospital’s]

8

policies and procedures.”

Pl.’s Sup. Brief in Opp. to

Def.’s Mot. for Summ. J. at 4 (Doc. No. 55).

That

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.

In this

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
an offense.
The two so-called comparators--the younger, white
employees

who

were

surfaced--aren’t
nurses

were

not

fired

comparable

confronted

at

about

when
all.

their

drug

use

When

those

two

discrepancies

in

their

medication distribution practices, they each admitted
their

misconduct,

confirmed

9

that

they

had

a

substance-abuse problem, and consented to entering into
a

treatment

program

established

and

operated

by

the

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
addiction.

Darrington Aff. ¶ 5 (Doc. No. 58-1).

Because

Banks made no such concession, she did not qualify for
the program.
complain

It is therefore unreasonable for her to

about

the

hospital’s

failure

to

offer

her

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
people

it

believes

discriminatory

are

intent

differently

has

been

situated,

shown.”

no

(internal

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

10

her burden under McDonnell Douglas and the hospital is
entitled

to

summary

judgment

on

her

discrimination

claims.

***
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