Kuznarowis v. Tobey Hospital et al
Filing
70
Judge Nathaniel M. Gorton: ENDORSED ORDER entered. MEMORANDUM AND ORDER. For the foregoing reasons, defendants' motion for summary judgment (Docket No. 44 ) is ALLOWED.So ordered.(Franklin, Yvonne)
United States District Court
District of Massachusetts
Lee Kuznarowis,
Plaintiff,
v.
Tobey Hospital and Southcoast
Health Systems, Inc.,
Defendants.
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Civil Action No.
16-11432-NMG
MEMORANDUM & ORDER
GORTON, J.
This case involves allegations of discrimination by Tobey
Hospital (“the Hospital”) and its operator Southcoast Health
Systems, Inc. (collectively “defendants”) against Lee Kuznarowis
(“Kuznarowis” or “plaintiff”), a registered nurse,.
Plaintiff
asserts that defendants 1) violated the Age Discrimination in
Employment Act of 1967 (“ADEA”), 29 U.S.C. § 621 et seq., (Count
I) 2) discriminated against him based on age in violation of
M.G.L. c. 151B § 4, (Count II) 3) violated Title VII of the
Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., (Count III)
4) discriminated against him based on gender in violation of
M.G.L. c. 151B § 4, (Count IV) 5) retaliated against him in
violation of Title VII of the Civil Rights Act of 1964, 42
U.S.C. § 2000e–3(a), (Count V) 6) retaliated against him in
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violation of ADEA, 29 U.S.C.
§ 621 et seq., (Count VI) and 7)
retaliated against him in violation of M.G.L. c. 149 §185 (Count
VII).
Defendant moves for summary judgment on all claims.
Because no genuine issues of material fact exist as to any
claim, defendant’s motion for summary judgment will be allowed.
I.
Background
In 1993, the Hospital hired Kuznarowis, then 33 years old,
as a Respiratory Therapist.
He began working as a Registered
Nurse at the Hospital in approximately 2000.
He was first
assigned to the Intensive Care Unit as an ICU RN but then reassigned to the Perioperative Department.
In 2013 and 2014, his
staff performance evaluation rated him between a “good, solid
performer” and an “excellent performer”.
Lynn Bordwick (“Bordwick”), the Perioperative Department
Nurse Manager at the Hospital, became plaintiff’s manager in
2006.
Bordwick informed the Post Anesthesia Care Unit (“PACU”)
that length of stay was a concern and that patients should be
discharged from PACU once they met clinical criteria.
In October, 2013, plaintiff applied for a Team Leader
position at the Hospital, for which he was qualified.
was responsible for hiring the Team Leader.
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Bordwick
Tara Ignacio
(“Ignacio”), a female nurse with less experience than plaintiff
was ultimately selected for the position.
In August, 2014, Ignacio yelled at Kuznarowis to move a
female patient along more quickly.
Kuznarowis responded that he
was charting and that he would move the patient when he was
finished.
Kuznarowis complained of Ignacio’s behavior to Sue
Gillis (“Gillis”), the lead RN.
In October, 2014, plaintiff, Bordwick, Associate Chief
Nursing Officer Susan Mangini (“Mangini”) and Human Resources
representative Janet Peirce (“Peirce”) met to discuss Bordwick’s
concerns about plaintiff.
Bordwick told Mangini that Kuznarowis
tended to keep his patients longer than other RNs and that her
prior experience indicated that extended patient stays and
missing documentation were indicative of possible drug
diversion.
The parties dispute whether, during that meeting,
plaintiff was accused of having a substance abuse problem.
At
the conclusion of the meeting, Kuznarowis was placed on leave.
On November 20, 2014, plaintiff was terminated.
The person
hired to replace him in PACU was Scott Rounseville, a male five
years older than Kuznarowis.
Mangini prepared a complaint
against Kuznarowis which a Southcoast HR manager filed with the
Board of Registration in Nursing (“BORN”) in December, 2014.
Plaintiff maintains that the Hospital used manipulated data to
demonstrate that he was dispensing more controlled substances
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than the other nurses.
He argues that the standard deviation
analysis used by the Hospital to document deficiencies in his
performance was attributable to the entire staff, not solely to
his practices.
On September 8, 2015, Kuznarowis filed a charge of
discrimination with the Equal Employment Opportunity Commission
(“EEOC”).
In July, 2016, plaintiff brought this suit against
defendants.
They subsequently filed their pending motion for
summary judgment which is the subject matter of this memorandum.
II.
Analysis
The role of summary judgment is “to pierce the pleadings
and to assess the proof in order to see whether there is a
genuine need for trial.” Mesnick v. Gen. Elec. Co., 950 F.2d
816, 822 (1st Cir. 1991).
The burden is on the moving party to
show, through the pleadings, discovery and affidavits, “that
there is no genuine dispute as to any material fact and that the
movant is entitled to judgment as a matter of law.” Fed. R. Civ.
P. 56(a).
A fact is material if it “might affect the outcome of
the suit under the governing law.” Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986).
A genuine issue of material
fact exists where the evidence with respect to the material fact
in dispute “is such that a reasonable jury could return a
verdict for the nonmoving party.” Id.
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If the moving party has satisfied its burden, the burden
shifts to the non-moving party to set forth specific facts
showing that there is a genuine, triable issue. Celotex Corp. v.
Catrett, 477 U.S. 317, 324 (1986).
The Court must view the
entire record in the light most favorable to the non-moving
party and indulge all reasonable inferences in that party's
favor. O’Connor v. Steeves, 994 F.2d 905, 907 (1st Cir. 1993).
Summary judgment is appropriate if, after viewing the record in
the non-moving party's favor, the Court determines that no
genuine issue of material fact exists and that the moving party
is entitled to judgment as a matter of law.
A. Timeliness
Under the relevant statutes of limitations, plaintiff is
required to file a charge of discrimination within 300 days
after the unlawful employment practice occurred. 42 U.S.C. §
2000e-5(e)(1) (“. . . within three hundred days after the
alleged unlawful employment practice occurred . . .”); cf. 29
U.S.C. § 626(d)(1)(B) (“. . . within 300 days after the alleged
unlawful practice occurred . . .”); M.G.L. c. 151B, § 5 (“Any
complaint filed pursuant to this section must be so filed within
300 days after the alleged act of discrimination.”).
Kuznarowis
filed his charge with the EEOC on September 8, 2015.
Accordingly, acts that occurred before November 14, 2014, are
not actionable.
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Plaintiff concedes that the continuing violation doctrine
does not resuscitate the untimely acts but submits that
incidents before November 14, 2014, serve as “background
evidence”.
Such incidents may be considered if the prior
actions are of “the same type of discriminatory act or practice
[that] has been timely challenged.” Rathbun v. Autozone, Inc.,
361 F.3d 62, 76 (1st Cir. 2004) (citing United Air Lines, Inc.
v. Evans, 431 U.S. 553, 558 (1977).
Similarly, acts that
occurred subsequent to the challenged acts may be referenced so
long as they are relevant. Id.
Untimely allegations such as the hiring of Ignacio as Team
Leader in 2014 cannot serve as the basis for a claim. See Rivera
v. Puerto Rico Aqueduct & Sewers Auth., 331 F.3d 183, 188 (1st
Cir. 2003).
Each “discrete discriminatory act transpires only
at the time it takes place.” Id. (citing National R.R. Passenger
Corp. v. Morgan, 536 U.S. 101 (2002)).
Thus, the only timely
act upon which plaintiff may rely is his November 20, 2014,
termination.
B. Age and gender discrimination
Under both state and federal law, it is unlawful for a
private sector employer to discharge an employee because of his
age or gender. 29 U.S.C.
§ 621 et seq.; M.G.L. c. 151B § 4; 42
U.S.C. § 2000e et seq.; M.G.L. c. 151B § 4.
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Where an employee lacks direct evidence that an employer's
actions were motivated by animus, Massachusetts and federal
courts apply the burden-shifting framework outlined in McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973). See
Haddad v. Wal-Mart Stores, Inc., 455 Mass. 91, 97 (2009) (citing
McDonnell Douglas, 411 U.S. at 802); Mulero–Rodriguez v. Ponte,
Inc., 98 F.3d 670, 673 (1st Cir. 1996).
Under that framework,
1) the plaintiff must establish a prima facie case of
discrimination 2) the defendant may rebut that case by offering
a legitimate, nondiscriminatory reason for its employment
action, requiring plaintiff 3) to produce evidence demonstrating
that defendant’s stated reason was a pretext. Haddad, 455 Mass.
at 97 n. 14; Ingram v. Brink’s, Inc., 414 F.3d 222, 230 (1st
Cir. 2005).
The “elements of the prima facie case will vary
depending on . . . the type of discrimination alleged” and the
protected category at issue. Knight v. Avon Prod., Inc., 438
Mass. 413, 420 n. 4 (2003).
To establish a prima facie case of discrimination, a
plaintiff must demonstrate that
(1) [he is] a member of a protected class; (2) [he is]
qualified for [his] job; (3) [he] suffer[ed] an adverse
employment action at the hands of [his] employer; and (4)
[there is] some evidence of a causal connection between
[his] membership in a protected class and the adverse
employment action.
Garmon v. Nat’l R.R. Passenger Corp., 844 F.3d 307, 313 (1st
Cir. 2016) (quoting Bhatti v. Trs. of Bos. Univ., 659 F.3d 64,
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70 (1st Cir. 2011)); Knight, 438 Mass. at 423 (requiring a
“logical connection between each element of the prima facie case
and the illegal discrimination”) (quoting O’Connor v.
Consolidated Coin Caterers Corp., 517 U.S. 308, 311–312 (1996)).
In response to the plaintiff's establishment of a prima
facie case, the employer can rebut the presumption of
discrimination “by articulating a legitimate, nondiscriminatory
reason for its . . . decision.” Blare v. Husky Injection Molding
Sys. Boston, Inc., 419 Mass. 437, 441 (1995); Ingram, 414 F.3d
at 230.
If the employer does so, the plaintiff must then
demonstrate that the defendant's proffered reason for its
employment decision was not the real reason but rather a pretext
for discrimination. Ingram, 414 F.3d at 230; Lipchitz v.
Raytheon Co., 434 Mass. 493, 501 (2001).
Under Massachusetts,
but not federal, law “if the fact finder is persuaded that one
or more of the employer’s reasons is false,” it may infer a
discriminatory motive. Lipchitz, 434 Mass. at 501.
1. Prima facie case of age discrimination
Scott Rounseville, who replaced plaintiff in the PACU, is
male and five years older than plaintiff.
An inference of
unlawful discrimination “cannot be drawn from the replacement of
one worker with another worker insignificantly younger.”
O’Connor, 517 U.S. at 312-13; cf. Knight, 438 Mass. at 425 (“We
conclude that an age disparity of less than five years, by
itself, is too insignificant to support a prima facie case of
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age discrimination.”).
Because plaintiff has not shown a
“causal connection” between his termination and his age, he has
failed to make a prima facie case of age discrimination under
federal and state law.
“While the burden of establishing a
prima facie case is not onerous, the plaintiff” is still
required make his case. Garmon v. Nat’l R.R. Passenger Corp.,
844 F.3d 307, 313 (1st Cir. 2016).
Defendant’s motion for summary judgment will, with respect
to Counts I and II, be allowed.
2. Legitimate, nondiscriminatory reason
Plaintiff declares that “Tobey’s complaint to the Board is
the only reason it can use for firing Lee.”
Defendants respond
that plaintiff was terminated because of his “substandard
medication administration and documentation practices” and his
inability to explain those discrepancies.
Associate Chief Nursing Officer Susan Mangini reviewed
PACU, patient medical and pharmacy department records for
patients of all nurses in the PACU.
That review identified
unexplained narcotics and medication discrepancies in
Kuznarowis’s documentation.
The Hospital met with plaintiff on
four occasions to discuss the results of that investigation.
According to the Hospital, Kuznarowis was placed on leave, and
ultimately terminated, because of his suspicious and subpar
handling of narcotics and other medications.
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Plaintiff rejects that purported reason for his
termination.
He maintains that “it would not be possible for
Mangini” to review the volume of documentation that she claims.
He insists that the Hospital’s story is contradictory because
“either Mangini was conducting a review of all nurses or she
reviewed the records for the plaintiff.”
Nowhere does he point,
however, to any specific facts demonstrating that the Hospital
terminated him because of his age or gender.
Likewise, he
proffers no facts demonstrating that defendants’ stated
consideration of narcotic and medication administration was
pretextual.
“The mere allegation of an illegal motive” is
insufficient to survive summary judgment. Barss v. Tosches, 785
F.2d 20, 22 (1st Cir. 1986).
Plaintiff offers nothing more.
Kuznarowis challenges the Hospital’s account of certain
events.
The relevant inquiry does not, however, depend on their
accuracy but rather on the employer’s
explanation of its conduct, together with any other
evidence, [that] could reasonably be seen by a jury not
only to be false
but to suggest discriminatory animus. Ronda-Perez v. Banco
Bilbao Vizcaya Argentaria--Puerto Rico, 404 F.3d 42, 44 (1st
Cir. 2005).
Here, the plaintiff has proffered no such evidence.
“Casting aspersions is not enough.” Murray v. Kindred Nursing
Centers W. LLC, 789 F.3d 20, 27 (1st Cir. 2015).
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Murray bears striking similarities to this case.
In both
cases, plaintiff-nurses sued for discrimination after they were
terminated for allegedly diverting drugs.
As the Murray court
made clear,
Whether [plaintiff] actually diverted drugs is of no
moment. [Defendant’s] reasonable suspicion was sufficient
to justify terminating [plaintiff’s] employment.
Id. at 26.
Under Massachusetts law, “if the fact finder is persuaded
that one or more of the employer's reasons” is dissembling, it
may infer a discriminatory motive. See Lipchitz v. Raytheon Co.,
434 Mass. 493, 501 (2001).
Even under that more favorable
framework, however, an employee only prevails when an
explanation has “no reasonable support in the evidence or is
wholly disbelieved (and hence is transparently a pretext).”
Blare v. Husky Injection Molding Sys. Boston, Inc., 419 Mass.
437, 443 (1995) (quoting Wheelock Coll. v. Massachusetts Comm’n
Against Discrimination, 371 Mass. 130, 138 (1976)).
The
Hospital’s decision to terminate Kuznarowis because of
irregularities in his narcotics management is a sufficient
legitimate, non-discriminatory reason.
Plaintiff has failed to
rebut it.
Even if plaintiff had demonstrated a prima facie case of
age discrimination, this Court finds that he failed to prove
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that defendants’ legitimate, non-discriminatory reason was
pretextual as to those claims.
Defendant’s motion for summary judgment will, with respect
to Counts III and IV, be allowed.
C. Retaliation
Plaintiff submits that, on separate occasions, he
“complained about being yelled at” and about “being treated
differently.”
Specifically, on October 6, 2014, Kuznarowis told
his supervisors that “he felt that he was being singled out.”
To make a prima facie case of retaliation, a plaintiff
must show that (1) she undertook protected conduct; (2) she
suffered an adverse employment action, and (3) the two were
causally linked.
Cherkaoui v. City of Quincy, 877 F.3d 14, 28 (1st Cir. 2017)
(quoting Noviello v. City of Boston, 398 F.3d 76, 88, (1st Cir.
2005)); Mole v. Univ. of Massachusetts, 442 Mass. 582, 591-92
(2004) (applying Massachusetts law).
Complaining about being yelled at by a boss is not
protected by federal or state retaliation laws.
Protected
activities are actions “taken to protest or oppose statutorily
prohibited discrimination.” Fantini v. Salem State Coll., 557
F.3d 22, 32 (1st Cir. 2009); cf. M.G.L. c. 151B § 4(4) (making
it an unlawful practice for an employer to “discriminate against
any person because he has opposed any practices forbidden under
this chapter or because he has filed a complaint, testified or
assisted in any proceeding” related to an MCAD complaint).
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Plaintiff made no formal complaint of discrimination nor is
there evidence that his comments about unfair treatment
concerned discriminatory treatment.
Having “a boss who is
tough, insensitive, unfair or unreasonable” may be
discomforting, Ahern v. Shinseki, 629 F.3d 49, 59 (1st Cir.
2010), but it is not prohibited under Title VII or M.G.L.
c. 151B.
Plaintiff has failed to demonstrate that he engaged in
protected activity.
Plaintiff insists that “both complaints establish temporal
proximity,” but “chronological proximity does not by itself
establish causality.” Wright v. CompUSA, Inc., 352 F.3d 472, 478
(1st Cir. 2003).
The non-moving party at the summary judgment
stage must set forth specific facts showing that there is a
genuine, triable issue. See Celotex, 477 U.S. at 324.
Plaintiff
has failed to set forth such required facts demonstrating
causation.
Finally, although the claim fails on its merits, the
cursory explanation plaintiff offers with respect to his
retaliation claims are insufficient and would result in a waiver
of that claim in any event. See Photographic Illustrators Corp.
v. Orgill, Inc., 118 F. Supp. 3d 398, 411 (D. Mass. 2015)
(quoting United States v. Zannino, 895 F.2d 1, 17 (1st
Cir.1990)) (“[I]ssues adverted to in a perfunctory manner,
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unaccompanied by some effort at developed argumentation, are
deemed waived.”).
Defendant’s motion for summary judgment will, with respect
to Count VI, be allowed.
D. Whistleblower claim
Plaintiff has not opposed defendant’s motion for summary
judgment as to his whistleblower claim.
waived. See id.
That claim is therefore
Even if it were not waived it would be
unavailing because the Massachusetts whistleblower statute
applies only to public sector employees, which Kuznarowis was
not. Welch v. Ciampa, 542 F.3d 927, 942 (1st Cir. 2008); M.G.L.
c. 149 § 185(a)(2) (defining “employer” as “the commonwealth,
and its agencies or political subdivisions, including, but not
limited to, cities, towns, counties and regional school
districts, or any authority, commission, board or
instrumentality thereof.”).
The statute offers plaintiff no
relief.
Defendant’s motion for summary judgment will, with respect
to Count VII, be allowed.
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ORDER
For the foregoing reasons, defendants’ motion for summary
judgment (Docket No. 44) is ALLOWED.
So ordered.
/s/ Nathaniel M. Gorton_____
Nathaniel M. Gorton
United States District Judge
Dated June 28, 2018
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