Hester v. University of Alabama Birmingham Hospital
MEMORANDUM OPINION. Signed by Magistrate Judge John E Ott on 11/30/2018. (KAM)
2018 Nov-30 AM 11:56
U.S. DISTRICT COURT
N.D. OF ALABAMA
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
UNIVERSITY OF ALABAMA
Case No.: 2:16-cv-1899-JEO
Plaintiff Christopher Hester filed a complaint in this court1 alleging he was
terminated because of his race in violation of Title VII of the Civil Rights Act of
1964. (Doc. 1). 2 The court has before it the June 29, 2018 motion for summary
judgment filed by Defendant The University of Alabama Board of Trustees
(“UAB”).3 (Doc. 26). The motion has been fully briefed (docs. 27, 33, 38), and is
now ripe for decision. For the reasons set forth below, the motion is due to be
The parties have consented to the exercise of dispositive jurisdiction by a magistrate judge
pursuant to 28 U.S.C. § 636(c). (Doc. 18).
All evidentiary citations refer to the document and page number provided by CM/ECF, the
court’s electronic document filing system, except for citations to depositions, which refer to the
page number provided on the deposition transcript, and affidavits, which refer to the paragraph
number in the affidavit.
The answer states the Defendant was incorrectly named as University of Alabama Birmingham
Hospital in the complaint. (Doc. 5 at 1).
STATEMENT OF FACTS4
Plaintiff Christopher Hester, an African-American, began his employment
with UAB on March 3, 2011, as a patient observer. (Doc. 28-1 (“Hester Dep.”) at
31). In December of 2013, Hester applied for a Patient Care Technician (“PCT”)
position and was accepted. (Id. at 36). He was transferred to the Jefferson Tower
North 5 (JTN5) unit of the Center for Psychiatric Medicine (CPM) on March 22,
2015. (Id. at 38.) The JTN5 unit serves as an inpatient unit for psychiatric patients
committed by a probate court. (Doc. 28-3 (“Hand Dep.”) at 7). Employees
working in the unit provide long-term care to patients suffering from psychiatric
disorders making them a danger to either themselves or the public. (Id. at 53-54).
PCTs are trained in venipuncture, vital signs monitoring, and blood sugar
monitoring. (Id. at 12). As a PCT, Hester reported to the Assistant Nurse Manager
in CPM on the JTN5 Unit, Daniel Nash. (Doc. 28-9 (“Nash Dep.”) at 8, 13).
Nash reported directly to the Nurse Manager in CPM on the JTN5 Unit, Wren
Hand. (Id. at 11; Hand Dep. at 9). Hand reported directly to the Administrative
Director of Nursing over the CPM, Steve Nasiatka. (Doc. 28-5 (“Nasiatka Dep.”)
at 12, 29; Hand Dep. at 11). The Administrative Director of Nursing is the highest
ranking employee at the CPM facility.
These are the facts for purposes of summary judgment only. This case involves video
evidence. District courts review video evidence de novo and when a video recording blatantly
contradicts a party’s testimony, the testimony is rejected on summary judgment. See Scott v.
Harris, 550 U.S. 372, 380 (2007); Pourmoghani-Esfahani v. Gee, 625 F.3d 1313, 1315 (11th
Cir. 2010); Lewis v. City of West Palm Beach, 561 F.3d 1288, 1290 n.3 (11th Cir. 2009).
All employees working at UAB must follow certain guidelines and
procedures found in the UAB Code of Conduct and UAB Employee Behavior
Policy. (Doc. 28-7 (“Mayer Dep.”) at 14). In addition, all CPM employees must
complete and operate using the Crisis Prevention Institute (CPI) training. (Id.).
The CPI training program focuses on “safe management of disruptive and
assaultive behavior.” (Doc. 28-2 at 105). UAB uses the CPI training to maintain
safety for patients and employees that operate within CPM. (Hand Dep. at 18-19).
The CPI training teaches employees the escalation model of patient behavior which
includes identifying early warning of behavior escalation and how to protect
themselves and other patients from a patient whose combative behavior has
escalated. (Nash Dep. at 19-20). CPM employees initially receive 8 hours of CPI
training in the same month they are hired and then receive 4 hours of
recertification training in addition to CPI drills. (Hand Dep at 20-23). After an
employee has successfully completed CPI training, the employee is issued a CPI
Blue Card to signify completion of the training. (Doc. 28-2).
particularly difficult patients does not alleviate the burden on UAB employees
from adhering to the CPI training and following other UAB policies and
procedures. (Hand Dep. at 31). Hester received CPI training and his CPI Blue
Card in December of 2011, and attended a refresher course on March 26, 2015.
(Hester Dep. at 35, 38-39).
UAB utilizes a progressive discipline policy for a large number of
deficiencies and offenses. (Doc. 28-8 at 2). In other words, in the absence of an
act warranting immediate termination, discipline normally begins at a lower level
and increases with each additional disciplinary action. (Id.). However, the
Employee Behavior policy enumerates a number of offenses that can lead to
“incompetence in patient care” and “dishonesty.” (Id.). Further, the UAB Code of
Conduct proscribes the “fabricat[ion] of information” and “misrepresent[ation] of
events.” (Id. at 4). In addition, it requires that UAB employees “provide the
highest quality of care by reaching for excellence.” (Id.).
A. October 27, 2015 Incident
On the morning of October 27, 2015, in exercise of his work responsibilities,
Hester woke patient C.L. from his sleep and told him that breakfast was ready.
(Hester Dep at 105). Hester then took a seat in a chair placed on the JTN5 floor in
the same common area where C.L. awaited breakfast. (Doc. 28-13 (“Incident
Video”); Nasiatka Dep. at 23). Before breakfast, C.L. refused to allow his vitals to
be taken and refused to ingest his prescribed medication. (Hester Dep. at 56). As a
result and in accordance with hospital policy, C.L.’s breakfast was delayed until
C.L decided to cooperate. (Id. at 55-56). C.L. became agitated when he had not
received his breakfast and began to speak to himself and to the hospital staff using
violent and manic language. (Id. at 56-57). He paced the JNT5 floor occasionally
speaking with Hester and other members of the staff. (Id. at 122; Incident Video).
He demanded that Hester provide breakfast.
(Id.). When Hester refused to
provide breakfast, C.L. slowly approached Hester while addressing him verbally.
(Incident Video). Throughout the entire approach, the C.L.’s hands were at his
side. (Id.). As C.L. drew close, Hester quickly rose from his chair with his hands
extended in front of his body and wrestled the patient to the ground. (Id.). After a
brief period of wrestling on the floor, another hospital employee ended the
encounter. (Id.). The entire event lasted only a few seconds. (Id.).
B. Investigation and Termination
Shortly after the altercation, the Human Resources Department initiated a
review of the incident. (See Doc. 28-23 at 2). As part of that investigation, Hester
completed a written statement relating his version of the events. (Doc. 28-2 at
125-26). In the statement, Hester asserted that he was attacked by C.L. (Id. at
125). Specifically, Hester stated:
[C.L.] became combative and started threatening staff. My staff
members and I remained calm and stated quiet until [C.L.] could calm
down; then [C.L.] turned to me, and asked could he have his tray. I
remained calm, and said to him I didn’t want to engage in a power
struggle, with my head slightly down. I didn’t want to make eye
contact while [C.L.] was upset, and that’s when he attacked me, and
hit me with a closed fist while I was sitting down. I stood up as I was
getting hit to descalate [sic] the situation I was in, and tried to hold
[C.L.’s] left arm so I could inform CPI than [C.L.] and I legs got
tangled. We fell to the floor and as we were falling [C.L.] took his
arm and put it around my neck . . . .
(Id. at 125-26).
Hester was terminated on November 10, 2015. (Doc. 28-18 at 3). The
stated reasons for his termination include a “violation of You and UAB 7.3.1
‘Inappropriate behavior toward, or discourteous treatment of, patients,’” as well as
not following the core value “Do Right.” (Id.). The counseling record specifically
stated Hester “went beyond what is appropriate becoming involved in an
altercation with the patient rather than utilizing CPI techniques,” the “physical
altercation . . . was not part of CPI training for safely managing a patient’s physical
aggression,” and his action posed a risk to the patient’s safety. (Id.). Additionally,
the counseling record noted that Hester’s written statement did not accurately
reflect the incident. (Id.).
Nasiatka maintained the final responsibility for the termination decision;
however, Kelly Mayer and Greg Erwin5 from Human Resources were in agreement
as to the decision to terminate Hester. (Nasiatka Dep. at 16-17, 23; Mayer Dep. at
27-28; Doc. 28-10 (“Erwin Decl.”) ¶ 21). The decision was based on their review
of the video footage and their resulting conclusion that Hester had failed to adhere
to UAB policies and his CPI training. (Nasiatka Dep. at 17). Specifically, the
Kelly Mayer was the Manager of Employee Relations and Greg Erwin was a human resources
consultant with UAB at all relevant times. (Mayer Dep. at 9, 11).
reviewers found Hester failed to stand up and distance himself from the
approaching patient, and he did not take supportive stance, use interim control
position, block and move, or run away. (Nasiatka Dep. at 18, 32; Nash Dep. at 28;
Doc. 28-23 at 13). Nasiatka believed that Hester’s actions placed C.L., and other
people in the common area at risk. (Nasiatka Dep. at 34). In addition, Erwin
testified the inconsistency between the video evidence and Hester’s written
statement was another independent ground for termination because dishonesty is
prohibited by UAB handbook policies. (Erwin Decl. ¶ 24).
Neither Nash nor Hand participated in the ultimate termination decision,
although they played a role in the investigation. (Nash Dep. at 19-23, 28; Hand
Dep. at 88). In fact, Nasiatka testified he overruled Hand’s recommendation not to
terminate Plaintiff,6 but instead to issue a written warning and provide additional
education. (Nasiatka Dep. at 16; Doc. 28-6 at 2).
C. EEOC Charge and Notice of Right to Sue
Hester filed an EEOC charge on March 31, 2016, alleging discrimination on
the basis of his race. (Doc. 28-20 at 7). On August 30, 2016, the EEOC dismissed
the charge and issued Hester a Notice of Rights to sue. (Id. at 5-6). Hester timely
filed his complaint on November 28, 2016. (Doc. 1).
Initially, Hand was not in favor of terminating Hester’s employment even though she agreed
Hester had failed to use CPI training measures during the altercation. (Doc. 28-23 at 19.)
However, upon conducting a frame-by-frame analysis of the video of the encounter, she
supported the termination. (Hand Dep. at 90).
STANDARD OF REVIEW
Under Federal Rule of Civil Procedure 56(c), summary judgment is proper
“if the pleading 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 judgment as a matter of law.”
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The party seeking summary
judgment bears the initial burden of informing the court of the basis for its motion
and identifying the portions of the pleadings or filings which it believes
demonstrate the absence of a genuine issue of material fact. Id at 323. Once the
movant has met its initial burden, the non-moving party must go beyond the
pleading and by his own affidavits, or by the depositions, answers to
interrogatories, and admissions on file, designate specific facts showing that there
is a genuine issue suitable for trial. See id. at 324; see also Fed. R. Civ. Pro. 56(e).
Substantive law identifies which facts are material and which are irrelevant.
See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). All reasonable
doubts about the facts and all justifiable inferences must be resolved in favor of the
non-movant. See Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1115 (11th Cir. 1993).
A dispute is genuine “if the evidence is such that a reasonable jury could return a
verdict for the nonmoving party.” Anderson, 477 U.S. at 248. If the evidence is
merely colorable, or is not significantly probative, summary judgment may be
granted. See id. at 249.
Plaintiff’s complaint consists of a single count: race discrimination in
violation of Title VII of the Civil Rights Act of 1964. (Doc. 1 at 1). Defendant
contends summary judgment is proper because Hester has failed to establish a
prima facie case of race discrimination because he cannot identify a similarlysituated comparator. (Doc. 27 at 10-18). Even if he could establish a prima facie
case, Defendant contends summary judgment is proper because Hester was
terminated for legitimate, nondiscriminatory reasons and there is no evidence of
pretext. (Id. at 18-29). For the reasons stated below, the court concludes that there
are no material issues of fact in this case and Defendant is entitled to judgment as a
matter of law. See FED. R. CIV. P. 56.
Analysis of a Title VII disparate treatment claim based on circumstantial
evidence as the one presented here requires the application of the framework
established in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See
Wilson v. B/E Aerospace, Inc., 376 F.3d 1079, 1087 (11th Cir. 2004). Under this
framework, a plaintiff must establish a prima facie case of disparate treatment by
showing: (1) he is a member of a protected class; (2) he was subjected to adverse
employment action; (3) his employer treated similarly situated employees outside
his class more favorably; and (4) he was qualified to do the job. See Maniccia v.
Brown, 171 F.3d 1364, 1368 (11th Cir. 1999). After the plaintiff meets this initial
burden, the employer has the burden to articulate a legitimate, nondiscriminatory
reason for the employment decision. Wilson, 376 F.3d at 1087. This burden
involves no credibility determination, St. Mary’s Honor Center v. Hicks, 509 U.S.
502, 509 (1993), and has been characterized as “exceedingly light.” Perryman v.
Johnson Prod. Co., 698 F.2d 1138, 1141 (11th Cir. 1983).
As long as the
employer articulates “a clear and reasonably specific” non-discriminatory basis for
its actions, it has discharged its burden of production. Texas Dept. of Community
Affairs v. Burdine, 450 U.S. 248, 254-55 (1981). After an employer articulates one
or more legitimate, non-discriminatory reasons for the employment action, the
plaintiff must show the proffered reason was a pretext for illegal discrimination.
Id. If the proffered reason is one that might motivate a reasonable employer, a
plaintiff cannot simply recast the reason but must “meet that reason head on and
rebut it.” Chapman v. AI Transp., 229 F.3d 1012, 1030 (11th Cir. 2000).
The court is mindful that the Eleventh Circuit has clarified that the
framework is not the only way for the plaintiff to survive summary judgment in a
discrimination case. See Smith v. Lockheed-Martin Corp., 644 F.3d 1321, 1328
(11th Cir. 2011). Rather, the plaintiff can survive summary judgement “if he
presents circumstantial evidence that creates a triable issue concerning the
employer’s discriminatory intent.” Id. A triable issue of fact exists if the record,
viewed in a light most favorable to the plaintiff, presents a convincing mosaic of
circumstantial evidence that would allow a jury to infer intentional discrimination
by the decision-maker. Id.
A. Plaintiff’s prima facie case of discrimination
Plaintiff’s prima facie case fails because he cannot identify a similarly
situated comparator who was treated more favorably than he was treated.
Employees identified by a Title VII plaintiff as comparators must be similarly
situated in all relevant respects. Wilson, 376 F.3d at 1091. Under Eleventh Circuit
precedent, “the comparator must be nearly identical to the plaintiff.”
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.”
Maniccia, 171 F.3d at 1368 (quotations omitted). Thus, the Eleventh Circuit
requires that the “quantify and quality of the comparator’s misconduct be nearly
identical to prevent courts from second-guessing employers’ reasonable decisions
and confusing apples with oranges.” Id. Material differences in ranks and
responsibilities are relevant for considering whether an employee of the defendant
is a proper comparator. See Rioux v. City of Atlanta, Ga., 520 F.3d 1269, 1280
(11th Cir. 2008).
Examined in a light most favorable to the Plaintiff, the evidence in the
record reveals no suitable comparator. Plaintiff points to Daniel Nash as a suitable
comparator. (Hester Dep. at 63).
This comparison fails for numerous reasons.
First, Nash is not a PCT. Rather, he is the assistant nurse manager for JNT5 and
Plaintiff’s direct supervisor. Hester admitted in his deposition that PCTs and
nurses have different job duties. (Hester Dep. at 86). Material differences in ranks
and responsibilities undermine the comparator analysis, and the substantial
difference in responsibilities in this case weighs heavily against Nash’s eligibility
as a comparator. See Rioux, 520 F.3d at 1280 (11th Cir. 2008).
Second, there is no evidence that Nash was accused of similar conduct but
disciplined differently. Plaintiff testified that Nash put a female patient in a choke
hold and was not disciplined. (Hester Dep. at 62-65). Nash denies this incident
occurred, (Nash Dep. at 37), and there is no document evidence in the record to
support Plaintiff’s allegation.
In fact, Hand, Nasiatka, Mayer, and Erwin denied
ever receiving any report that Nash put a female patient in a choke hold. (Hand
Dep. at 88-89; Nasiatka Dep. at 36; Mayer Dep. at 29; Erwin Decl. ¶¶ 13-14).
Plaintiff’s vague, self-serving contention that Nash was once involved in a
chokehold incident with a female patient does not provide the information
necessary to determine whether Nash was similarly situated yet treated differently.
Indeed, there is a complete failure to attempt to demonstrate “nearly identical”
quantity and quality of the alleged misconduct. There is no evidence as to where
or when the alleged event occurred, the identity of the alleged patient, if there were
other witnesses to the alleged event, or if it was ever reported to anyone. Instead,
Hester merely “guesses” that the event was reported to Hand, Nash’s superior. (Id.
at 63-65). But there is no evidence before the court that any such incident was ever
reported. As such, even if some sort of incident occurred between Nash and a
patient, Plaintiff’s assertions fail to establish that Nash’s alleged contact was
similar or identical to the degree of his own behavior. See Floyd v. Fed. Exp.
Corp., 423 F. App’x 924, 930 (11th Cir. 2011) (holding that two employees
involved in a fight were not similarly situated when one attempted a punch and the
other put his finger in the other’s face). On the evidence before the court, Nash is
not a suitable comparator as a matter of law.
Because Plaintiff failed to establish a similarly situated comparator who was
treated more favorably than he was treated, he did not establish a prima facie case.
That being said, “[i]f a plaintiff fails to show the existence of a similarly situated
employee, summary judgment is appropriate where no other evidence of
discrimination is present.” Holifield, 115 F.3d at 1562 (citing Mack v. Great Atl. &
Pac. Tea Co., 871 F.2d 179, 182 (1st Cir. 1989) (emphasis added)). The court,
therefore, turns to Plaintiff’s evidence of discrimination and pretext argument.
B. Legitimate, nondiscriminatory reasons and pretext
Defendant has carried its “exceedingly light” burden of articulating
legitimate, nondiscriminatory reasons for Hester’s termination. As discussed
above, Hester was terminated because, after a joint review of the video footage and
Hester’s written statement, Nasiatka, Mayer and Erwin concluded that he violated
UAB policies, specifically in that he failed to adhere to his CPI training and made
dishonest statements inconsistent with the video evidence. (Nasiatka Dep at 23;
Erwin Decl. ¶ 24). According to UAB policy, these actions are expressly subject
to immediate termination rather than progressive discipline.
Because Defendant satisfied its burden of production of a legitimate,
nondiscriminatory reason for Plaintiff’s termination, Plaintiff must come forward
with evidence sufficient to permit a reasonable fact finder to conclude the reasons
Defendant gave were pretextual. Burdine, 450 U.S. at 253. Plaintiff may do so by
demonstrating “such weaknesses, implausibilities, inconsistencies, incoherencies,
or contradictions in [Defendant’s] proferred legitimate reasons for its actions a
reasonable factfinder could find them unworthy of credence.” Springer v.
Convergys Customer Mgmt. Group, Inc., 509 F.3d 1344, 1348-50 (11th Cir. 2007).
It is important to note that conclusory allegations of discrimination, without more,
are insufficient to show pretext. Mayfield v. Patterson Pump Co., 101 F.3d 1371,
1376 (11th Cir. 1996). “A reason is not pretext for discrimination unless it is
shown both that the reason was false, and that discrimination was the real reason.”
Brooks v. County Comm’n of Jefferson County, 446 F.3d 1160, 1162 (11th Cir.
To show pretext, a plaintiff may not merely quarrel with the wisdom of the
employer’s reason, but must instead meet the reason head on and rebut it. See
Alvarez v. Royal Atl. Developers, Inc., 610 F.3d 1253, 1264 (11th Cir. 2010). The
inquiry into pretext is based on “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). The question is not whether the employee actually had
performance problems but “whether [his] employers were dissatisfied with [him]
for these or other non-discriminatory reasons, even if mistakenly or unfairly so …”
Alavarez, 610 F.3d at 1266.
Plaintiff offers three arguments for why pretext exists in this case. First, he
contends that witnesses provided inconsistent statements regarding his actions.
Specifically, he asserts that the witnesses who provided statements at the time of
the incident changed their statements as a result of viewing the video. (Doc. 33 at
10-12). Next, Hester asserts that UAB failed to follow its own discipline policy in
his case. (Id. at 13-14). Finally, Hester contends that “[t]ermination based on one
second video review requires a trial” and cites to statements made by Nasiatka in a
completely unrelated case to suggest that his action in this case was based on
discriminatory intent. (Id. at 15-17). The court addresses each argument in turn.
Plaintiff’s first argument centers on the statements of two witnesses to the
incident at issue. Michael Hodge, a PCT, and Elizabeth Larsen, a Registered
Nurse, both wrote statements shortly after the incident. (Doc. 28-11 (“Hodge
Decl.”) ¶¶ 6, 9; Doc. 28-12 (“Larsen Decl.”) ¶¶ 6, 9). Both of these statements
more closely follow the statement written by Hester, including that the patient was
the aggressor. (Hodge Decl. ¶ 12; Larsen Decl. ¶¶ 13-14). However, after the
litigation began, both Hodge and Larson viewed the video footage of the incident
and changed their statements to reflect that “[i]t was not until Hester began to
lunge out of his chair at C.L. that C.L. attempted to swing and hit Mr. Hester with
his hand.” (Hodge Decl. ¶ 18; Larsen Decl. ¶ 22).
Plaintiff asserts that these “inconsistent post hoc witness statements [are]
probative of pretext.” (Doc. 33 at 11). Plaintiff does not cite any law in support
of this statement and the court does not know of any. Instead, Plaintiff cited cases
where the Eleventh Circuit found shifting explanations by the decisionmaker were
evidence of pretext. See Bechtel Const. Co. v. Secretary of Labor, 50 F.3d 926,
935 (11th Cir. 1995); see also Howard v. BP Oil Co., Inc., 32 F.3d 520, 526-27
(11th Cir. 1994) (holding that inconsistent reasons for termination given by the
defendant is evidence for pretext). These statements, which were prepared after
they had an opportunity to review the video, are a consequence of being more fully
informed concerning the occurrence. They do not evidence pretext.
there is absolutely no evidence that Larsen and Hodge’s initial statements were
considered in the decision to terminate Hester.
Hester’s next pretext argument centers on a criticism of Defendant’s
discipline process. (Doc. 33 at 13-14). Hester essentially argues that he should
have been subjected to a lighter punishment given his history of adhering to UAB
policies and the availability of progressive discipline policies.
argument is unpersuasive. While failure to follow a progressive discipline policy
and immediately moving to termination may help the terminated employee
establish pretext and while flexibility in established procedures invites “increased
scrutiny,” see Morrison v. Booth, 763 F.2d 1366, 1373-74 (11th Cir. 1985),
Plaintiff has not shown that UAB departed from its normal procedures.
UAB utilizes a progressive discipline policy that is in operation for most onthe-job offenses. However, the UAB policy recognizes the right of decisionmakers
to terminate without warning and without strict adherence to the progressive
discipline steps for certain policy violations. Among those violations justifying
immediate discharge without notice are “incompetence . . . in patient care” and
“inexcusable . . . dishonesty.” (Doc. 28-8 at 2). Mayer testified Hester violated
both of these prohibitions during the altercation with C.L. (Mayer Dep. at 12-13).
As such, under the UAB policy, these violations resulted in Plaintiff’s immediate
discharge. There is simply no evidence that UAB failed to follow its own policy in
the decision to terminate Hester.7
What Plaintiff’s argument is really doing is requesting the court to substitute
its own business judgment for that of the defendant regarding reasonableness of
immediate termination in place of progressive discipline. However, the court has
no such authority. The Eleventh Circuit does not allow a plaintiff to simply recast
the defendant’s proffered nondiscriminatory reasons or substitute his business
judgment for that of the employer. So long as the proffered reason is one that
might motivate a reasonable employer to take the action in question, the plaintiff
must meet that reason head on and rebut it. The plaintiff cannot simply declare
that the reason is unwise or inaccurate. Chapman v AI Transit, 229 F.3d 1012,
1030 (11th Cir. 2000).
Finally, the court rejects Hester’s last pretext argument. Hester argues that
termination based on the video requires a trial and cites to statements made by
Nasiatka in a completely unrelated case to suggest that his action in this case was
based on discriminatory intent.
(Doc. 33 at 15-17).
Plaintiff cites to and
extensively quotes from another case where a different judge denied summary
Additionally, there is no evidence that UAB inconsistently treated employees engaging in
physical altercations and violating CPI policy. In fact, the record provides multiple examples of
employees who were terminated for the same reasons Hester was terminated. (Nasiatka Dep. at
19; Erwin Dep. at 26-30).
judgment where Nasiatka was a witness and reviewed video of another employee
in the CPM. (Id.). The full facts, evidence, and legal arguments in that case are
not before the court here. As such, the decisions made therein do not establish
pretext and have no bearing on whether Plaintiff was terminated because of his
Additionally, Plaintiff references a statement allegedly made by Nasiatka in
yet another case.9 (Doc. 33 at 16-17). The reference amounts to nothing more than
an unabashed attempt to taint Nasiatka’s character. The alleged statement has
nothing to do with discrimination in this case and certainly is not probative as to
the issue of pretext.
Although not specifically enumerated by Hester as a pretext argument, he
contends throughout his brief that he followed all policies and procedures the day
of the incident with the patient. (Doc. 33 at 5). For purposes of Rule 56, however,
the court is not concerned with whether Hester actually committed the policy
violation but whether the decisionmakers honestly believed Hester engaged in the
However, even if that evidence was properly before this court, it is factually distinguishable.
In that case, United States District Judge Abdul Kallon found that the video evidence “before the
court skips over key portions of the footage from the camera” concerning the relevant incident.
(Doc. 33 at 16) (quoting Freeman v. Bd. Of Trustees of the Univ. of Alabama, No. 2:13-cv0816-AKK, 2015 WL 3604197, *6 (N.D. Ala. Jun. 8, 2015)). There is no such allegation, much
less, evidence of the same in this case.
The evidence is that in November 2009, Nasiatka yelled at LPN Elaine Harris in the presence
of other personnel. Specifically, he told her to “stay out management’s business.” Harris v.
UAB Health Sys., No. 2:11-cv-02446-VEH, 2013 WL 2338446, *3 (N.D. Ala. May 23, 2013).
misconduct. Damon v. Fleming Supermarkets of Fla., Inc., 196 F.3d 1354, 1363
(11th Cir. 1999).
The concern is “whether unlawful discriminatory animus
motivated” the decision to terminate. Alvarez, 610 F.3d at 1266.
Plaintiff failed to present any evidence that suggests Mayer, Erwin, and
Nasiatka did not believe that Hester improperly violated the CPI training and UAB
policy and then made a dishonest statement about the event. Plaintiff is free to
argue about whether their belief was correct or their decision was well-founded,
but such an argument does not work to satisfy the plaintiff’s burden. See Elrod v.
Sears, Roebuck and Co., 939 F.2d 1466, 1470 (11th Cir. 1991). The pretext
inquiry “centers on the employers’ beliefs…” rather than on “reality as it exists
outside of the decision-maker’s head.” Alvarez, 610 F.3d at 1266.
For these reasons, Plaintiff failed to establish that the reasons stated for his
termination were a mere pretext for race discrimination. Additionally, he has not
presented a convincing mosaic of circumstantial evidence that would allow a jury
to infer intentional discrimination by the decision-maker. As a result, Defendant is
entitled to summary judgement on Plaintiff’s disparate treatment claim.
For the foregoing reasons, Defendant The University of Alabama Board of
Trustees is entitled to judgment as a matter of law on the claim asserted in
Plaintiff’s complaint. As such, Defendant’s motion for summary judgment (Doc.
26) is due to be granted. A separate order will be entered.
DATED this 30th day of November, 2018.
JOHN E. OTT
Chief United States Magistrate Judge
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