Scott v. Saline Memorial Hospital Auxiliary
ORDER granting 21 deft's Motion for Summary Judgment. Signed by Judge Billy Roy Wilson on 5/26/11. (kpr)
IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
SALINE COUNTY MEDICAL CENTER
Pending is Defendant’s Motion for Summary Judgment (Doc. No. 21). Plaintiff has
responded,1 and Defendant has replied.2 As set forth below, the Motion is GRANTED.
Plaintiff worked as a registered nurse in Defendant’s surgical department from August
18, 2008, until November 18, 2008. She alleges that she was denied proper training, subjected to
less favorable working conditions, and terminated on account of her race (African-American),
sex (female), and age (52).4
Defendant’s nursing manager, Tanya Shelnut, hired Plaintiff based in part on her fifteen
years of experience in surgical nursing. On her first day, Plaintiff attended an orientation
required for all new employees. On her second and third days, Plaintiff attended an orientation
Doc. No. 32.
Doc. No. 38.
Unless otherwise noted, the information in the background section is taken from the
parties’ Statements of Facts (Doc. Nos. 23, 36).
Doc. No. 6.
for nurses.5 After these orientations, Plaintiff began working the 7:00 p.m. to 7:00 a.m. shift,
Monday through Wednesday.
New nurses—including experienced ones—are to be assigned a preceptor to mentor them
through an orientation period. Plaintiff contends that she was not assigned a preceptor until
October 20, 2008, approximately two months after she started working for the Defendant.
Plaintiff also contends that she was assigned a full load of five patients starting with her first
shift, although the hospital’s orientation plan calls for a more gradual increase to a full load of
patients. Plaintiff’s orientation period was extended, and on October 20, 2008, she was moved
to the 3:00 p.m. to 11:00 p.m. shift to work more closely with Judy Kindy, the clinical
coordinator or “charge” nurse. According to Plaintiff, Kindy was hostile and refused to provide
On November 3, 2008, Plaintiff met with Shelnut and Kindy regarding on-going
concerns about her job performance and several alleged patient complaints. On November 10
and 11, 2008, Defendant allegedly received several more complaints from patients about
Plaintiff’s performance. On November 12, Plaintiff was placed on final step discipline, which
specified that any other patient complaints or issues with patient care would result in immediate
termination. That night, Plaintiff was assigned a diabetic patient who was to receive insulin,
with food, at 9:00 p.m. Plaintiff did not give the patient his insulin until around 11:10 p.m. She
was terminated by Tanya Shelnut on November 18, 2008, the day of her next scheduled shift.
Plaintiff filed a Charge of Discrimination with the Equal Employment Opportunity
Commission (“EEOC”), alleging that she was being discriminated against on account of her race,
Although she disputes this at one point, Plaintiff appears to concede that she received the
hospital-wide training for nurses; she complains that she did not receive unit orientation.
age, and sex. She received a right-to-sue letter dated August 24, 2009,6 and filed her complaint
on November 24, 2009.7
Summary judgment is appropriate only when there is no genuine issue of material fact, so
that the dispute may be decided on purely legal grounds.8 The Supreme Court has established
guidelines to assist trial courts in determining whether this standard has been met:
The inquiry performed is the threshold inquiry of determining whether there is the
need for a trial -- whether, in other words, there are any genuine factual issues that
properly can be resolved only by a finder of fact because they may reasonably be
resolved in favor of either party.9
The Court of Appeals for the Eighth Circuit has cautioned that summary judgment is an
extreme remedy that should be granted only when the movant has established a right to the
judgment beyond controversy.10 Nevertheless, summary judgment promotes judicial economy
by preventing trial when no genuine issue of fact remains.11 I must view the facts in the light
most favorable to the party opposing the motion.12 The Eighth Circuit has also set out the burden
of the parties in connection with a summary judgment motion:
[T]he burden on the party moving for summary judgment is only to demonstrate,
i.e.,“[to point] out to the District Court,” that the record does not disclose a genuine
dispute on a material fact. It is enough for the movant to bring up the fact that the
record does not contain such an issue and to identify that part of the record which
Doc. No. 6, Exhibit B.
Doc. No. 1.
Holloway v. Lockhart, 813 F.2d 874 (8th Cir. 1987); Fed. R. Civ. P. 56.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986).
Inland Oil & Transport Co. v. United States, 600 F.2d 725, 727 (8th Cir. 1979).
Id. at 728.
Id. at 727–28.
bears out his assertion. Once this is done, his burden is discharged, and, if the record
in fact bears out the claim that no genuine dispute exists on any material fact, it is
then the respondent’s burden to set forth affirmative evidence, specific facts,
showing that there is a genuine dispute on that issue. If the respondent fails to carry
that burden, summary judgment should be granted.13
Only disputes over facts that may affect the outcome of the suit under governing law will
properly preclude the entry of summary judgment.14
Although summary judgment is to be used sparingly in employment discrimination cases,
it is appropriate where a party has failed to present evidence sufficient to create a jury question
as to an essential element of her claim.15
Age and Sex Discrimination
Plaintiff has provided no argument or evidence regarding her age or sex discrimination
claims. Therefore, Defendant’s Motion for Summary Judgment is GRANTED as to these
To establish a prima facie case of race discrimination, Plaintiff must show: (1) she is a
member of a protected class, (2) she was meeting her employer’s legitimate job expectations, (3)
she suffered an adverse employment action, and (4) similarly situated employees outside the
protected class were treated differently.16 The burden then shifts to Defendant to articulate a
Counts v. MK-Ferguson Co., 862 F.2d 1338, 1339 (8th Cir. 1988) (quoting City of Mt.
Pleasant v. Associated Elec. Coop., 838 F.2d 268, 273-74 (8th Cir. 1988) (citations omitted)).
Anderson, 477 U.S. at 248.
Whitley v. Peer Review Systems, Inc., 221 F.3d 1053, 1055 (8th Cir. 2000) (internal
Shanklin v. Fitzgerald, 397 F.3d 596, 602 (2005) (quotations omitted).
legitimate, nondiscriminatory reason for its action.17 Here, Defendant has met that “minimal
burden”18 by explaining that Plaintiff, a probationary employee, was not meeting reasonable
performance expectations and was late in administering medication while on final step
discipline. So, Plaintiff must show that the proffered nondiscriminatory reason is merely a
pretext for unlawful race discrimination.19 The showing of pretext necessary to survive summary
judgment requires more than merely discrediting an employer’s asserted reasoning for
terminating an employee.20
First, Plaintiff contends that she was denied proper training because she did not receive
orientation for her unit within the hospital. Similarly, she argues that Defendant did not follow
the Orientation Plan for experienced nurses and that this is evidence of disparate treatment.
Taking Plaintiff’s factual allegations as true, their relevance is minimal because Plaintiff was
never disciplined for or harmed by a lack of familiarity with any procedure or policy.
Plaintiff also asserts that she was subjected to less favorable working conditions than
employees outside the protected class, including having her patients switched often and being
assigned the most difficult patients. Records show that for most of the month of September
2008, Plaintiff was assigned two to four patients per shift, and sometimes she had the same
patient for more than one shift. Plaintiff’s allegations do not rise to the level of a hostile work
environment claim, and they do not provide evidence of discriminatory intent on the part of
Putman v. Unity Health System, 348 F.3d 732, 735 (8th Cir. 2003).
Johnson v. AT & T Corp., 422 F.3d 756, 763 (8th Cir. 2005).
Plaintiff raises several points regarding patient complaints. First, she denies that any
patients actually complained about her. While there may be a genuine issue of fact as to whether
patients complained about Plaintiff, the proper inquiry is not whether the complaints were true
(or actually made) but whether Defendant believed them to be true.21 There is no evidence that
the decision-maker, Tanya Shelnut, had any reason to doubt that patients made these complaints.
Second, Plaintiff points to other instances of nurses receiving patient complaints and asserts that
the alleged complaints against her “were not specific complaints reported on some type of
form.”22 A memo23 attached to Plaintiff’s final-step discipline form set out several patient
complaints made during her shifts on November 11 and 12. The memo also noted several
deficiencies in her work, including failing to draw a lab, drawing a lab late, and incomplete
charting. Finally, Plaintiff takes issue with being given a final step discipline without being
issued first and second step disciplinary forms. In fact, while some nurses were given verbal
counseling or first step discipline, several other nurses were placed on final step discipline for
patient complaints. Plaintiff has failed to show that she was treated differently from similarly
Plaintiff also claims disparate treatment regarding the medication error for which she was
terminated, pointing to medication errors by other nurses. Instances of disparate treatment can
support a finding of pretext, but Plaintiff has the burden of proving that she and the other nurses
were similarly situated in all relevant respects.24 The Eighth Circuit has two lines of cases on the
Id. at 762–63.
Doc. No. 33, p. 33.
Doc. No. 34-1, Plaintiff’s Exhibit P.
See Harvey v. Anheuser-Busch, Inc., 38 F.3d 968, 972 (8th Cir. 1994).
standard used to determine whether employees are similarly situated at the prima facie stage of
the McDonnell Douglas test.25 Even applying the less rigorous standard—requiring only that the
employees be “involved in or accused of the same or similar conduct and are disciplined in
different ways”26—Defendant’s motion should be granted. Defendant has explained that the
reason Plaintiff was terminated is that she made an error with a patient’s medication while on
final step discipline. Plaintiff’s claim that the patient was not harmed and her explanation as to
why she was late are irrelevant. Significantly, Plaintiff has not come forward with evidence that
this explanation is pretextual and that the real reason for dismissal was race discrimination.
Plaintiff also argues that statistical data supports her race discrimination claim. An
individual disparate treatment plaintiff may use statistical evidence regarding an employer’s
general practices at the pretext stage to help rebut the employer’s purported nondiscriminatory
explanation.27 Plaintiff argues that for each year of reporting28 Defendant’s white employees are
under-represented and black employees are over-represented in the number of terminations. The
supplied statistics are not useful, however, because the only evidence of the racial make up of
Defendant’s employees is as of February 25, 2011. Plaintiff failed to establish the percentage of
black/white employees during the years in question, so the percentage of those fired is
meaningless, without this proper background information.
Even assuming that Plaintiff met her initial burden of proving a prima facie case,
Plaintiff’s race discrimination claim cannot survive summary judgment. “The ultimate question
Wimbley v. Cashion, 588 F.3d 959, 962 (8th Cir. 2009).
Lyoch v. Anheuser-Busch Companies, Inc., 164 F.R.D. 62, 66 (E.D. Mo. 1995) (quoting
Hollander v. American Cyanamid Co., 895 F.2d 80, 84 (2d Cir. 1990)).
2005–2011. See Doc. No. 33-1, Exhibit E.
in every employment discrimination case involving a claim of disparate treatment is whether the
plaintiff was the victim of intentional discrimination.”29 Here, Plaintiff has failed to come
forward with evidence that Defendant’s legitimate, nondiscriminatory reasons for her
termination were pretextual or that the real reason was discrimination on account of her race.
For the reasons explained above, Defendant’s Motion for Summary Judgment is
IT IS SO ORDERED this 26th day of May, 2011.
/s/Billy Roy Wilson
UNITED STATES DISTRICT JUDGE
Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 153 (2000).
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