Gordon v. Holy Cross Hospital Germantown
Filing
71
MEMORANDUM OPINION. Signed by Judge Theodore D. Chuang on 5/29/2019. (c/m 5/29/19 km4s, Deputy Clerk)
UNITED STATES DISTRICT COURT
DISTRICT OF MARYLAND
PEGGY GORDON,
Plaintiff,
v.
Civil Action No. TDC-18-1306
HOLY CROSS HOSPITAL
GERMANTOWN, INC.,
Defendant.
MEMORANDUM OPINION
Peggy Gordon, a former employee of Holy Cross Hospital Germantown, Inc. ("Holy
Cross"), has filed this civil action alleging that Holy Cross discriminated against her in violation
of Title VII ofthe Civil Rights Act of 1964 ("Title VII"), 42 U.S.C.
42 U .S.C.
S 1981; and the Maryland
State Gov't
S 20-606
SS 2000e
to 2000e-17 (2012);
Fair Employment Practices Act ("MFEPA"), Md. Code Ann.,
(West 2015). Pending before the Court is Holy Cross's Motion for Summary
Judgment. Having reviewed the submitted materials, the Court finds that no hearing is necessary.
See D. Md. Local R. 105.6. For the reasons set forth below, the Motion will be granted.
BACKGROUND
The following facts are presented in the light most favorable to Gordon, the non-moving
party. Gordon, who is African American, began working as an Emergency Room Technician at
Holy Cross in April 2012.
After she was hired, Gordon participated in a week-long training
program on Holy Cross's
policies and procedures
and received copies of Holy Cross's
Confidentiality Policy and Code of Conduct. From November 2016 until Gordon was terminated
on February 23,2017, Bridget Plummer, Holy Cross's Director of the Emergency Department and
Behavioral Health, served as Gordon's direct supervisor. Plummer is white. Gordon states, and
Holy Cross does not dispute, that until the events which led to her termination, she maintained a
spotless employment record and was never disciplined by Holy Cross.
On February 22,2017, at approximately 8:30 or 9:00 p.m., Gordon went into Emergency
Room 9 to prepare to draw the blood of a white female patient ("the Patient") who was
accompanied by a white male family member ("the Family Member").
The Patient was crying,
and when Gordon put the tourniquet on the Patient's arm, before she inserted the needle, the Patient
began screaming at Gordon, "Take it off, take it off. You don't know what you're doing. I want
you to go find me somebody else who knows what they're doing. You need to get out and go
away." Gordon Dep. at 64, ECF No. 70-1. Gordon took the tourniquet off the Patient, apologized
to her, and exited the room. She went to the nursing station to report that the Patient was very
upset and asked the charge nurse, Patty Cleavenger, to go talk to the Patient. Cleavenger agreed
to do so.
While Gordon was at a computer at the nurse's station, the Family Member, who was
dressed in a United States Army uniform, came out of the Patient's room and began walking
towards Gordon, waving his hands and yelling at Gordon that she had left the room without helping
the Patient, that no one was helping the Patient, and that someone needed to come back in and help
her. Gordon informed the Family Member that she had left the room because the Patient had asked
her to do so, but the Family Member continued yelling that Gordon was supposed to help the
Patient and not leave her. According to Gordon, at this point, she looked to Cleavenger as well as
a Montgomery County police officer ("the Officer") who was on duty and observing the situation,
to intervene. Both failed to do so. Both Cleavenger and the Officer are white.
2
When the Family Member saw that the Officer was not going to intervene, he continued
berating Gordon and finally closed his fist and yelled, "I will bang your head in." Id. at 72. Then,
another Holy Cross employee, Maggie Lanham, who is white, came out from between Rooms 9
and 10, stepped between Gordon and the Family Member, put up her hands and told the Family
Member that he needed to go back to the Patient's room. For a few minutes, she attempted to
convince him that he did not have to behave the way he was acting. The Family Member then
went back into Room 9 with the Patient.
A short time later, the Family Member stepped outside Room 9 again and yelled for
someone to come in and help the Patient. Again, Gordon went to Cleavenger and asked her to
help the Patient or call the night supervisor. Cleavenger told Gordon that she would call the night
supervisor later, so Gordon tried to call the night supervisor herself, but no one answered the
phone. At some point during this exchange, a different nurse went into the Patient's room to help
the Patient.
Although the Family Member did not physically threaten her again, Gordon still perceived
him as posing a threat to her safety. She turned to the Officer and asked why he had not helped
her and noted that whenever white employees are engaged in a conflict with patients or visitors,
the Officer always steps in. According to Gordon, the Officer stated that he would not intervene
because the Family Member was in military uniform. Gordon then asked the Officer to call 911,
but the Officer stated that there was no emergency situation requiring a 911 call. Gordon then
called hospital security. Two security officers responded to the scene: Adam Washington, who is
African American, and Kristin Warfield, who is white. Gordon told Washington and Warfield
what had happened and that she still felt threatened by the Family Member because when security
was not present, he would come out and look for her. She also asked them to go talk to the Family
3
Member.
The Officer, however, remained present and told them, "[W]e're not doing anything
about it." Id. at 91. Gordon then stated to the Officer, "You do not let the white employees go
through this. Why [isn't] anyone helping me?" !d. at 92. Both the Officer and Washington and
Warfield declined her request that they go talk to the Family Member. Gordon then told them that
she was going to call a hotline to find out what her rights were.
Gordon then proceeded to use the phone at the nurse's station to call a local television
station's hotline known as "7 On Your Side." Id. at 102. The nurse's station was approximately
two doors away from Emergency Room 9, where the Patient and the Family Member were located,
and was in an area with other employees and patients nearby. When no one answered, Gordon left
a voicemail message stating her name, that she was in Maryland, and that she had a problem with
the military and police. She did not use the Patient's name or the Family Member's name and did
not disclose any personal information about the Patient or the Family Member. Shortly after this
call, the Patient and the Family Member apologized to Gordon for threatening her.
Washington, who had been standing next to Gordon while she called "7 On Your Side,"
reported the call to the Cleavenger.
The call was also reported to the Holy Cross Security
Supervisor, Fred Carmen, Jr., who then called Plummer, Gordon's direct supervisor, at home.
According to Plummer, Carmen stated that Gordon had made the phone call in an intimidating
manner, within view of the Family Member.
After receiving Carmen's phone call, Plummer
contacted Cleavenger and asked her to bring Gordon to a private location so that the three of them
could discuss what had happened.
conversation:
The parties disagree about the length and substance of that
Plummer has described a lengthy discussion about Gordon's encounter with the
Family Member, while Gordon states that Plummer just told her that she would be fired for calling
the hotline.
4
Regardless, it is undisputed that Plummer and Gordon had a longer discussion about the
incident the following day after Plummer and Sharon Brader, the Nursing Director of Holy Cross,
conducted an internal investigation. According to Plummer, during the meeting, Gordon admitted
that she contacted "7 On Your Side" within earshot of the Patient's room.
At the end of the
meeting, Plummer and Brader stepped outside to discuss the information provided by Gordon and
consult with Human Resources regarding the appropriate. course of action.
They decided that
Gordon should be terminated for knowingly violating Holy Cross's Confidentiality Policy and
Code of Conduct.
The termination letter that they provided to Gordon stated, in relevant part:
"When you did not follow your chain of command and contacted the media regarding a difficult
interaction with a family, you violated the Holy Cross Health: Confidentiality policy and Holy
Cross Health Standards of Conduct. Your behavior was reckless. Therefore, your employment
with Holy Cross Health is terminated effective today, February 23,2017."
Termination Notice at
8, ECF No. 58-3.
On May 22, 2017, Gordon filed a complaint with the Maryland Commission on Civil
Rights, which was cross-filed with the United States Equal Employment Opportunity Commission
("EEOC"), alleging that her termination from Holy Cross was the result of race discrimination.
On August 21, 2017, the EEOC issued to Gordon a Notice of Right to Sue based on its
determination that it would not be able to complete its administrative processing of her charge
within 180 days of its filing.
On November 20, 2017, Gordon timely filed this lawsuit in the
Circuit Court for Montgomery County, Maryland.
Holy Cross removed the case to this Court.
The operative Second Amended Complaint asserts causes of action for violations of (1) Title VII;
(2) 42 U.S.C.
9
1981; and (3) the MFEPA.
5
DISCUSSION
In its Motion for Summary Judgment, Holy Cross argues that Gordon cannot establish a
prima facie case of discrimination because she has not shown that she was meeting Holy Cross's
legitimate performance expectations and because she has failed to identify a similarly situated
white employee who was treated more favorably under comparable circumstances.
Holy Cross
also argues that even if Gordon established a prima facie case, she has not put forth any evidence
to establish to that Holy Cross's asserted legitimate non-discriminatory reason for firing her was a
pretext for race discrimination.
I.
Legal Standard
Under Federal Rule of Civil Procedure 56(a), the Court grants summary judgment if the
moving party demonstrates 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. Fed. R. Civ. P. 56(a); Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986). In assessing the Motion, the Court views the facts in the light
most favorable to the nonmoving party, with all justifiable inferences drawn in its favor. Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). The Court may rely only on facts supported in
the record, not simply assertions in the pleadings.
Bouchat v. Bait. Ravens Football Club, Inc.,
346 F.3d 514, 522 (4th Cir. 2003). A fact is "material" if it "might affect the outcome of the suit
under the governing law." Anderson, 477 U.S. at 248. A dispute of material fact is only "genuine"
if sufficient evidence favoring the nonmoving party exists for the trier of fact to return a verdict
for that party. Id. at 248-49.
II.
Discriminatory Treatment
Title VII makes it unlawful for an employer "to discharge any individual, or otherwise
discriminate against any individual with respect to his compensation,
6
terms, conditions, or
privileges of employment, because of such individual's
origin." 42 U.S.C.
S 2000e-2(a)(1).
race, color, religion, sex, or national
Title VII case law applies to both
S 1981 and MFEPA
claims,
so the Court evaluates all three causes of action under Title VII standards. See Clarke v. DynCorp
Int'l LLC, 962 F. Supp. 2d 781, 788-89 (D. Md. 2013) (citing James v. Booz-Allen & Hamilton,
Inc., 368 F.3d 371, 375 n.l (4th Cir. 2004), and Haas v. Lockheed Martin Corp., 914 A.2d 735,
742 (Md. 2007)); Nana-Akua Takyiwaa Shalom v. Payless Shoesource Worldwide, Inc., 921 F.
Supp. 2d 470, 483 n.20 (D. Md. 2013) ("Section 1981 and FEPA claims of discrimination are
analyzed under the same framework as Title VII. ").
To evaluate Title VII claims in the absence of direct evidence of discriminatory intent,
courts apply the burden-shifting analysis outlined in McDonnell Douglas Corporation v. Green,
411 U.S. 792 (1973). See Adams v. Trs. of the Univ. of N.C.-Wilmington, 640 F.3d 550,558 (4th
Cir. 2011). The burden is first on the plaintiff to establish a prima facie case of discrimination.
Id.
Upon such a showing, the burden shifts to the employer
to assert a "legitimate,
nondiscriminatory reason" for the allegedly discriminatory conduct. Id. (quoting Hill v. Lockheed
Martin Logistics Mgmt., Inc., 354 F.3d 277, 285 (4th Cir. 2004)).
If the employer makes that
showing, the burden shifts back to the plaintiff to demonstrate that the employer's purported
reasons are a "pretext for discrimination."
To establish aprimafacie
Id. at 558-59 (quoting Hill, 354 F.3d at 285).
claim for race, color, or national origin discrimination based on
disparate treatment, a plaintiff must present facts demonstrating:
(1) the plaintiff s membership in
a protected class; (2) the plaintiffs satisfactory job performance; (3) that the plaintiff was subjected
to an adverse employment action; and (4) that similarly situated employees outside the protected
class received more favorable treatment.
White v. BFI Waste Svcs., Inc., 375 F.3d 288, 295 (4th
Cir. 2004). When the claim is discriminatory termination, the elements are altered slightly.
7
A
plaintiff must then present facts demonstrating: (1) the plaintiff s membership in a protected class;
(2) that the plaintiff was terminated; (3) that at the time of the termination, the plaintiff was
performing at a level that met the employer's legitimate expectations; and (4) that the position was
filled by a similarly qualified applicant from outside the protected class. King v. Rums/eld, 328
F.3d 145, 149 (4th Cir. 2003).
A.
Prima Facie Case
There is no dispute that Gordon has alleged sufficient facts to establish two elements of a
prima facie case. As an African American woman, Gordon is a member of a protected class, and
she was summarily terminated.
However, Holy Cross argues that Gordon has not shown that she
was performing at a level that met her employer's legitimate expectations at the time that she was
fired. Specifically, Holy Cross states that Gordon's conduct on the night of February 22, 2017specifically, calling "7 On Your Side" about a patient issue in the middle of a busy Emergency
Room instead of following her chain of command-renders
her performance dissatisfactory per
se because it violated company policy. For this principle, Holy Cross cites two non-binding cases:
Hawkins v. Sheppard Pratt Hospital, 32 F. App'x 44 (4th Cir. 2002), and Blair v. Colonnas
Shipyard, Inc., 52 F. Supp. 2d 687 (E.D. Va. 1999), aff'd, 203 F.3d 819, 2000 WL 4917 (4th Cir.
2000).
In Hawkins, an unpublished case, the United States Court of Appeals for the Fourth Circuit
affirmed without discussion the district court's holding that a plaintiff who worked at a hospital
and disclosed patient information in violation of her employer's policy was not meeting her
employer's legitimate expectations. Hawkins, 32 F. App'x at 45. However, the Fourth Circuit did
not address the extent to which the plaintiffs violation interfered with her job performance on an
ongoing basis or coincided with other shortcomings in her job performance.
8
Lacking this
information, the Court does not rely on Hawkins for the principle that any isolated violation of
company policy constitutes a failure to meet the employer's legitimate performance expectations
for purposes of a prima facie case. In Blair, the court found that an employee who failed to procure
a required doctor's note and submitted false information about his absence violated his employer's
policies and therefore did not meet the employer's performance expectations.
Blair, 52 F. Supp.
2d at 694. Likewise, however, the court in Blair never held that all violations of corporate policy
constitute inadequate performance, especially when those violations constitute specific instances
of misconduct rather than ongoing poor performance.
Rather, a single instance of misconduct is more relevant to the question of the employer's
legitimate nondiscriminatory reason for termination.
In Holland v. Washington Homes, 487 F.3d
208 (4th Cir. 2007), the plaintiff was allegedly fired for making threatening remarks to his
supervisor, but where, as here, the defendant did not dispute that Holland had performed his job
adequately prior to the threats, the court analyzed his misconduct under the second phase of the
McDonnell Douglas burden-shifting analysis-namely,
by evaluating whether his threats to his
supervisor constituted the employer's legitimate non-discriminatory reason for firing Holland. See
Holland, 487 F.3d at 212,214.
By contrast, in cases in which the plaintiff had an ongoing history
of poor job performance, courts have analyzed that deficiency as a failure to satisfy the primafacie
case element of meeting the employer's legitimate expectations.
See King, 328 F.3d at 147-49
(holding that a teacher who received repeated reprimands for being unprepared for class and having
deficient lesson plans failed to show that he was meeting his employer's
expectations); Warch v. Ohio Casualty Ins. Co., 435 F.3d 510,517-18
legitimate job
(4th Cir. 2006) (holding
that an employee who had been put on probation after a string of negative reviews related to
9
multiple areas of his job performance failed to show that he was meeting his employer's legitimate
job expectations).
Although in Warch, the Fourth Circuit declined to adopt the principle that "when assessing
whether a plaintiff has met her employer's legitimate expectations at the prima facie stage of a
termination case, a court must examine plaintiff s evidence independent of the nondiscriminatory
reason produced by the defense," it did not conclude that a single instance of misconduct alleged
to be the nondiscriminatory reason for termination, by itself, establishes a failure to meet employer
expectations.
Warch, 435 F.3d at 515. Rather, the court recognized the "danger" of applying the
"expectations" element of the primafacie case too strictly and distinguished between cases "where
there is . . . one event that sparked the termination"
and those involving a "long string of
performance problems leading up to the firing." Id. at 516.
This case aligns more closely with Holland. Where Gordon's alleged misconduct on the
night of February 22, 2017 was a single act external to her core job requirements, any policy
violation stemming from that incident is more fairly analyzed as part of the inquiry into Holy
Cross's legitimate non-discriminatory
reason for terminating Gordon rather than as necessarily
establishing that she was not performing her job in a satisfactory fashion.
Though it may be
considered on the issue of satisfactory job performance, see Warch, 435 F.3d at 515, where Gordon
has presented undisputed evidence through her sworn affidavit that she had never been disciplined
or received negative performance reviews prior to February 22, 2017, the Court concludes that, at
a minimum, there is a genuine issue of material fact whether she was meeting her employer's
legitimate job expectations at the time that she was fired.
Thus, the Court turns to the fourth requirement for a prima facie case of discriminatory
termination:
whether Gordon has introduced evidence that she was treated differently from
10
similarly situated white employees or that her position was filled by a similarly qualified applicant
who was outside the protected class. See White, 375 F.3d at 295; King, 328 F.3d at 149. On this
prong, the existence of a white comparator is not a necessary element of the plaintiff's claim if the
plaintiff can introduce other circumstantial evidence of discrimination.
See Bryant v. Aiken Reg'[
Med. Centers Inc., 333 F.3d 536, 545-46 (4th Cir. 2003). Nevertheless, Gordon has failed to
present evidence sufficient to meet this requirement.
"The similarity between comparators and the seriousness of their respective offenses must
be clearly established in order to be meaningful."
260, 265 (4th Cir. 2008).
Lightner v. City of Wilmington, NC., 545 F.3d
In this case, where the only alleged adverse employment action is
Gordon's termination, in order to provide a meaningful comparison, Gordon would have to
identify white employees who engaged in similar conduct that allegedly violated Holy Cross's
Confidentiality Policy or Code of Conduct but were not disciplined with the harsh sanction of
termination.
Alternatively, she could introduce evidence that a person who was not African
American was hired to fill her position after she was terminated.
Gordon does not point to any white employees who fall into either of these categories.
Instead, she asserts in her affidavit and deposition testimony that similarly situated white
employees received better protection from hospital security officers and law enforcement officers
when faced with hostile patients and visitors.
In Gordon's affidavit, she generally states that
"Caucasian employees are protected closely by Hospital Security and the Police Officers who work
for the Defendant" without further detail. Gordon Aff. ~ 6, ECF No. 62-2. In her deposition, she
testified about several occasions when white Holy Cross employees, including Cleavenger, another
nurse named Amanda Pickering, and an employee she refers to as "Jenn I.," had verbal altercations
with patients or their family members, and hospital security rushed to the scene to intervene on
11
their behalf. It is not clear that this testimony is sufficient to establish that these white employees
were similarly situated.
Gordon did not obtain affidavits from those employees or any of the
individuals involved, and she conceded during her deposition that she never heard the exact nature
of the threats that were made against them, such that the Court cannot assess the similarity of those
scenarios to Gordon's interaction with the Family Member. Moreover, Gordon acknowledged that
the Officer's asserted reason that he would not intervene on her behalf was because the Family
Member was in military uniform, a fact not known to be present in the case of the comparator
employees.
But even if these white employees were similarly situated to Gordon as to the
provision of security, such comparative evidence does not show disparate treatment on the issue
of her termination, which is the only adverse employment action alleged in her Second Amended
Complaint.
And even if Gordon had cited Holy Cross security personnel's alleged failure to protect
her as a violation of Title VII, such a claim would ordinarily not be cognizable under Title VII,
which requires "a discriminatory act that adversely affects the terms, conditions, or benefits of the
plaintiff s employment.
Holland, 487 F.3d at 219 (internal citations omitted). Such an "adverse
employment action" consists of discharge, demotion, a decrease in payor benefits, a loss of job
title or supervisory responsibility, reduced opportunities for promotion, or a reassignment resulting
in one or more these consequences.
See Boone v. Goldin, 178 F.3d 253, 255-57 (4th Cir. 1999)
(allowing for the possibility that a reassignment to a significantly more stressful position could
constitute an adverse employment action). Gordon did not allege any such action against her other
than her termination.
Beyond the lack of comparators on the issue of discriminatory termination, Gordon has
provided no evidence of discriminatory intent.
12
She has acknowledged that no one involved,
including Plummer and Brader, ever made any racially-derogatory
else, and she has not introduced any other circumstantial
comments to her or anyone
evidence of race discrimination.
Accordingly, the Court finds that she has failed to provide sufficient evidence to establish a prima
facie case of employment discrimination.
B.
Legitimate Non-Discriminatory
Reason and Pretext
Because Gordon has not established a prima facie case of employment discrimination,
Holy Cross is "under no duty to supply an explanation for [her] discharge." King, 328 F.3d at 150.
Even so, the Court finds that Holy Cross has met its burden of producing a "legitimate,
nondiscriminatory
reason" for the allegedly discriminatory
conduct, and Gordon has not
demonstrated that Holy Cross's purported reasons for firing her are a "pretext for discrimination."
Adams, 640 F.3d at 558-59.
Holy Cross asserts that Gordon was terminated
because she engaged in reckless
misconduct by contacting the media regarding a difficult interaction with a patient's family
member rather than raising her concerns through her chain of command, in violation of Holy
Cross's Confidentiality Policy and Code of Conduct. Gordon counters that Holy Cross's proffered
reasons for her termination were pretextual because her decision to call "7 On Your Side" was
justified under the circumstances where she felt threatened and security personnel refused to
intervene to protect her.
However, to demonstrate pretext, a plaintiff must show that the
employer's assessment of her conduct was dishonest or not the real reason for her termination,
rather than merely dispute the merits of the employer's termination decision.
PepsiCo, Inc., 203 F.3d 274, 280 (4th Cir. 2000).
See Hawkins v.
Such a showing is required because "in a
wrongful discharge action it is the perception of the decision maker which is relevant, not the selfassessment of the plaintiff." Id. (internal citations omitted). The job of the Court is not to "appraise
13
[the employer's] appraisal"; rather, its "sole concern is whether the reason for which the defendant
discharged the plaintiff was discriminatory."
Id.
To the extent that Holy Cross claims that Gordon's call to "7 On Your Side" violated its
Confidentiality
Policy, the evidence does not appear to support that claim.
Holy Cross's
Confidentiality Process states: "Information about current or former patients in any form (verbal,
written, or electronic) is confidential and protected by the law ....
Those who have a need to know
must discuss patient information only in private, confidential places."
Confidentiality Policy at
10-11, ECF No. 58-3. Even though Plummer states that Gordon told "7 On Your Side" that she
wanted to make a complaint about a military family member of a patient, the contemporaneous
report from Washington, as well as Washington's
declaration, both reflect that Gordon merely
stated in her voicemail "that she was in Maryland and that she had a problem with the military and
police." Washington Incident Report at 6, ECF No. 58-4. Washington's account, which is most
likely to be accurate because he, not Plummer, directly heard Gordon's call, makes no mention of
a patient issue or even a medical setting. Even under Plummer's version, Holy Cross has provided
no evidence that Gordon revealed any identifYing information about the Patient or her condition,
and Gordon affirmatively testified that she did not do so. Thus, the claim that Gordon violated the
Confidentiality Policy is not supported by the evidence.
The evidence better supports Holy Cross's claim that Gordon's call to "7 On Your Side"
violated its Code of Conduct.
The Code of Conduct states: "All persons associated with Holy
Cross Health have a responsibility to exercise integrity, honesty, and sound judgment when
performing job responsibilities."
Code of Conduct at 15, ECF No. 58-3. It also recommends a
four-step process for employees who find themselves in difficult situations in which they do not
know how to respond, including contacting first one's immediate supervisor, then Human
14
Resources, then the Holy Cross Health integrity officer, and finally a toll-free internal hotline for
Holy Cross staff. Plummer testified that she and Brader determined that Gordon's call to "7 On
Your Side" reflected poor judgment by going outside her chain of command and neglecting to
follow the four-step process detailed above. Indeed, the termination letter provided to Gordon
strongly suggests that Holy Cross fired Gordon for making a scene in front of patients and acting
in an unprofessional manner by openly criticizing her colleagues, which reflected poorly on Holy
Cross and resulted in the determination that it constituted grounds for termination.
Where Holy Cross has presented evidence of a legitimate non-discriminatory
reason for
terminating Gordon, she must provide evidence sufficient to raise a genuine issue of material fact
whether that reason was pretextual and that the true reason was discrimination.
evidence
that Plummer
or Brader ever made racially derogatory
Here, there is no
statements,
acted in a
discriminatory fashion, treated white employees more favorably for comparable policy violations,
or even hired a white employee to fill Gordon's spot after terminating her.
Thus, the Court
concludes that Gordon has not provided sufficient evidence to support a verdict in her favor.
In so ruling, the Court does not conclude that Holy Cross's decision to terminate Gordon
was fair. It is undisputed that Gordon was mistreated and threatened by the Family Member; in
fact, the Family Member later apologized for his actions. Gordon also had a right to expect that
the Officer or hospital security would intervene to protect her from the Family Member. She was
justifiably upset when the Officer did not do so, particularly because his stated reason for failing
to intervene, that the Family Member was in military uniform, was either based on a misguided
and mistaken belief that he had no authority over such an individual, or an unwillingness to
confront an arguably intimidating individual. The fact that a non-security staff member, Maggie
Lanham, eventually stepped in to confront the Family Member reveals that the Officer could have
15
and should have done so earlier. Gordon then received little to no support from her supervisors or
hospital security. Thus, the fact that Gordon overreacted and called "7 on Your Side," though
exhibiting poor judgment, should have been viewed in the context of the extremely disturbing
episode that Gordon had just experienced. Particularly where Gordon had never had any negative
findings on her employment record, there is a real question whether immediate termination for this
first transgression, rather than a lesser sanction such as a suspension, reprimand, or counseling,
was truly necessary, particularly where no patient information was disclosed inappropriately.
A court, however, "does not sit as a kind of super-personnel department weighing the
prudence of employment decisions made by firms charged with employment discrimination."
DeJarnette v. Corning Inc., 133 F.3d 292,299 (4th Cir. 1998) (quoting Giannopoulos v. Brach &
Brock Confections, Inc., 109 F.3d 406, 410 (7th Cir. 1997)).
Although Holy Cross has not
convinced the Court that its decision to terminate Gordon was fair under the circumstances, the
Court's sole task is to determine if there is a genuine issue of material fact whether Gordon's
termination was motivated by race discrimination. Where she has not shown that similarly situated
white employees were not terminated for similar transgressions, and she does not contend that
there is any evidence that her supervisors had previously displayed racial animus, the Court
concludes that Gordon has not provided evidence to support the conclusion that the Gordon was
terminated based on her race. The Court therefore must grant summary judgment in favor of Holy
Cross.
16
CONCLUSION
For the foregoing reasons, Holy Cross's Motion for Summary Judgment will be granted.
A separate Order shall issue.
Date: May 29,2019
THEODORE D. CHUA
United States District Jud
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