Byars v. UAB Hospital Management LLC et al

Filing 31

MEMORANDUM OPINION Signed by Judge William M Acker, Jr on 9/25/15. (SAC )

FILED
2015 Sep-25 PM 04:07
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
TERRY BYARS,

}
}
Plaintiff,
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v.
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UAB HOSPITAL MANAGEMENT, LLC, }
}
}
Defendant.
}

CIVIL ACTION NO.
2:14-CV-1338-WMA

MEMORANDUM OPINION
On August 6, 2015 defendant UAB Hospital Management, LLC
(“UAB”) filed a motion for summary judgment challenging the sole
remaining claim brought by plaintiff Terry Byars.

Her surviving

claim alleges race discrimination in violation of Title VII of
the Civil Rights Act of 1964. (Doc. 25; Doc. 26).

Byars filed

her response to UAB’s motion on August 28, 2015 (Doc. 29) and UAB
filed a reply on September 11, 2015 (Doc. 30).

The motion is now

under submission.
For the reasons stated below, defendant’s motion for summary
judgment will be granted.
“[C]onsidering all of the evidence and the inferences it may
yield in the light most favorable to the nonmoving party . . .
[s]ummary judgment is appropriate where the evidence shows ‘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.” Ellis
v. England, 432 F.3d 1321, 1325 (11th Cir. 2005) (quoting Fed. R.
1

Civ. Proc. 56(c)) (citation omitted).

“For factual issues to be

considered genuine, they must have a real basis in the record . .
. mere conclusions and unsupported factual allegations are
legally insufficient to defeat a summary judgment motion.” Id. at
1326 (citations omitted).
I.

Prima facie case

“When a plaintiff lacks direct evidence of discrimination,
courts use the burden-shifting framework in McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973), to analyze circumstantial
evidence of discrimination.” Wellons v. Miami Dade Cnty., 611 F.
App'x 535, 538 (11th Cir. 2015) (citing McCann v. Tillman, 526
F.3d 1370, 1373 (11th Cir. 2008). “To make out a prima facie case
of racial discrimination a plaintiff must show (1) she belongs to
a protected class; (2) she was qualified to do the job; (3) she
was subjected to adverse employment action; and (4) her employer
treated similarly situated employees outside her class more
favorably.” Crawford v. Carroll, 529 F.3d 961, 970 (11th Cir.
2008) (emphasis added).
“In determining whether employees are similarly situated for
purposes of establishing a prima facie case, it is necessary to
consider whether the employees are involved in or accused of the
same or similar conduct and are disciplined in different ways.”
Silvera v. Orange Cnty. Sch. Bd., 244 F.3d 1253, 1259 (11th Cir.
2001) (citation omitted).

“The most important factors in the
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disciplinary context are the nature of the offenses committed and
the nature of the punishments imposed . . [and courts] require
that the quantity and quality of the comparator's misconduct be
nearly identical to prevent courts from second-guessing
employers' reasonable decisions and confusing apples with
oranges.” Maniccia v. Brown, 171 F.3d 1364, 1368 (11th Cir. 1999)
(citations omitted).
It is undisputed (1) that Byars is white (Doc. 27-1 at), (2)
that she was reasonably qualified for her research nurse position
(Doc. 27-1 at 10-12), and (3) that she was terminated for alleged
violations of UAB’s HIPAA policy (Doc. 27-1 at 18).

While Byars

identifies two African-American employees, Cheryl Womack and
Shelia Watkins (Doc. 27-1 at 20), who were not terminated for
violations of UAB’s HIPAA policy (Doc. 29 at 4), Byars fails to
establish her similarity to these two other employees to the
degree necessary to make out a prima facie case of
discrimination.
First, Byars was supervised by Dr. Vetter (Doc. 27-1 at 13)
whereas Womack and Watkins worked under a different supervisor
(Doc. 27-1 at 21-22). “Courts have held that disciplinary
measures undertaken by different supervisors may not be
comparable for purposes of Title VII analysis.” Jones v. Gerwens,
874 F.2d 1534, 1541 (11th Cir. 1989).

Additionally, the quantity

and quality of Byars’ alleged violations of UAB’s HIPAA policy
are distinct and dissimilar.

Womack was disciplined for
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accessing her own personal medical records to review her
appointment dates and medication list. (Doc. 27-1 at 79).
Watkins was disciplined for accessing a former patient’s medical
records to attempt to exonerate herself from improperly leaving a
tourniquet on that patient. (Doc. 27-1 at 81).

While both were

disciplined, neither Womack or Watkins were terminated for their
respective violations of UAB’s HIPAA policy. (Doc. 27-1 at 7982).

Unlike Womack and Watkins, Byars was terminated for

multiple alleged violations of UAB’s HIPAA policy.

First, Byars

admits that she accessed her own personal medical records
contrary to UAB policy. (Doc. 27-1 at 36).

Second, Byars admits

that she accessed her daughter’s medical records without written
authorization contrary to UAB policy. (Doc. 27-1 at 36-38).
Third, Byars admits to accessing the health records of a coworker
without authorization contrary to UAB policy. (Doc. 27-1 at 3739).

Compared to the single incidents by Womack and Watkins,

these three instances by Byars are dissimilar and cut against
establishing discriminatory intent by UAB. Jones v. Gerwens, 874
F.2d 1534, 1540 (11th Cir. 1989) (quoting Nix v. WLCY
Radio/Rahall Communications, 738 F.2d 1181, 1186 (11th Cir.
1984)) (“if an employer applies a rule differently to people it
believes are differently situated, no discriminatory intent has
been shown”).
Additionally, in the course of Byars’ work on a “Spine

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Psychology study” she allegedly accessed the entire electronic
health records, “IMPACT PowerNotes,” for two patients without the
required eligibility screening checklist forms as required by the
institutional review board’s approved protocol in compliance with
UAB’s HIPAA policy. (Doc. 26-7-9 and Doc. 27-3 at 4-6).

By

allegedly accessing the entire record, Byars accessed the “name,
date of birth, medical record number (“MRN”), health status,
medications, allergies, history, problems, vitals, plans and
dates” for these two patients (Doc. 27-5 at 3-4), which allegedly
was more patient health information than was necessary for the
pre-screening and confirmation of eligibility for the spine
study. (Doc. 27-3 at 5-6 and Doc. 27-5 at 3-4).

While Byars

asserts that accessing these complete records for research
purposes was well within hospital policy (Doc. 29 at 2), she
admits these alleged violations played a part in UAB’s decision
to terminate her (Doc. 29 at 4).

Therefore, taken together,

Byars multiple violations of UAB’s HIPAA policy are qualitatively
and quantitatively dissimilar from those of Womack and Watkins.
See McCann v. Tillman, 526 F.3d 1370, 1373-74 (11th Cir. 2008)
(brackets omitted)(“the misconduct for which the plaintiff was
discharged must be nearly identical to that engaged in by an
employee outside the protected class whom the employer
retained”).
Byars fails to present a prima facie case for racial
discrimination by failing to adequately identify similarly
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situated employees who were treated more favorably.

She offers

no direct evidence of racial animus towards whites.
II.

Pretext
Assuming only for the sake of argument that Byars could make

out a prima facie case of racial discrimination, she cannot show
that UAB’s articulated reasons for termination were pretextual.
“When a plaintiff has established a prima facie case of
discrimination, the burden of production then shifts to the
defendant to offer a legitimate, nondiscriminatory reason for the
adverse employment action.” Winborn v. Supreme Beverage Co. Inc.,
572 F. App'x 672, 674-75 (11th Cir. 2014) (citing

E.E.O.C. v.

Joe's Stone Crabs, Inc., 296 F.3d 1265, 1272 (11th Cir. 2002)).
“If the defendant is able to do so, the burden shifts back to the
plaintiff to show that this reason is really a pretext for
unlawful discrimination.” Id at 675.
“The inquiry into pretext centers upon the employer's
beliefs, and not the employee's own perceptions of his
performance.” Holifield v. Reno, 115 F.3d 1555, 1565 (11th Cir.
1997). “Where an employee argues that he did not actually engage
in misconduct . . . an employer may rebut this allegation by
showing its good faith, honest belief that the employee violated
a rule.” Stone & Webster Const., Inc. v. U.S. Dep't of Labor, 684
F.3d 1127, 1136 (11th Cir. 2012). “If an employer terminates an
employee ‘because it honestly believed that the employee had

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violated a company policy, even if it was mistaken in such
belief, the discharge is not ‘because of race.’” Winborn v.
Supreme Beverage Co. Inc., 572 F. App'x 672, 674 (11th Cir. 2014)
(quoting Smith v. Papp Clinic, P.A., 808 F.2d 1449, 1452–53 (11th
Cir. 1987)).
Despite Byars’ assertion in her response brief that the
evidence shows she did not violate UAB’s HIPAA policy (Doc. 29 at
6), there is no support in the record for her assertion.

In her

brief, Byars points to a letter from the Alabama Board of
Nursing, which states that it “determined that [Byar’s] conduct
as described in the complaint does not constitute a provable
violation of the Nurse Practice Act.” (Doc. 29-1).

Yet the

probative value of the exhibit is diminished by the fact that
neither the attached letter or Byars’ brief itself makes any
argument or explanation as to how the Nurse Practice Act is
remotely analogous to the privacy standards in UAB’s HIPAA
policy.

See Daniels v. Twin Oaks Nursing Home, 692 F.2d 1321,

1324 (11th Cir. 1982) (quotation omitted) (“an inference is not
reasonable if it is only a guess or a possibility, for such an
inference is not based on the evidence but is pure conjecture and
speculation”).1
Even though Byars asserts that she did not violate UAB’s
1

Additionally, in her brief Byars states that “[t]he
evidence shows that the Plaintiff did not violate UAB’s HIPAA
policy” and cites to “Plaintiff’s Ex. B”, however no attachment
marked “Exhibit B” is attached. (Doc. 29).
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HIPAA policy (Doc. 27-1 at and Doc. 29 at 2, 6), her own EEOC
complaint states “I was terminated from my job for a HIPAA
violation; which I admitted” (Doc. 27-1 at 75).

Further, Byars

maintains this is not an admission to a HIPAA violation, she
admits she accessed her personal health records and the records
of her daughter and a co-worker without authorization, which she
admits is contrary to UAB’s HIPAA policy (Doc. 271- at 35-38).
Therefore, Byars fails to establish that UAB’s stated reason for
violations of its HIPAA policy was pretextual. See Combs v.
Plantation Patterns, 106 F.3d 1519, 1538 (11th Cir. 1997) (“the
district court must evaluate whether the plaintiff has
demonstrated “such weaknesses, implausibilities, inconsistencies,
incoherencies, or contradictions in the employer's proffered
legitimate reasons for its action that a reasonable factfinder
could find them unworthy of credence”).
Even if Byars were correct that she did not technically
violate the letter or spirit of UAB’s HIPAA policy, she
acknowledges that UAB believed she had violated its HIPAA policy.
(Doc. 29 at 4) (“Defendant admitted to terminating Plaintiff for
HIPAA violations”).

Byars does not dispute Dr. Vetter’s

statement that “[e]ven if Ms. Byars had not accessed her personal
medical record, her daughter’s medical record, and the medical
record of a co-worker, I would have still recommended termination
fo her employment for the IRB protocol deviations and HIPAA
violations.” (Doc. 27-3 at 6). Nor does Byars contest the
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findings of Dale Parks, a security and privacy coordinator for
UAB who conducted an investigation and audit of the alleged HIPAA
violations, which concluded that she violated UAB’s HIPAA policy
and created “a high risk of harm” to those whose information she
improperly accessed. (Doc. 27-5 at 4-5).

Therefore, summary

judgment is appropriate because Byars fails to show pretext
where, even if mistaken, UAB honestly believed Byars had violated
its HIPAA policy and terminated Byars for that reason.
CONCLUSION
For the reasons stated above, this court by separate order
will grant defendant’s motion for summary judgment.

DONE this 25th day of September, 2015.

_____________________________
WILLIAM M. ACKER, JR.
UNITED STATES DISTRICT JUDGE

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