Deanes v. North Mississippi State Hospital
Filing
48
MEMORANDUM OPINION re 47 Order on Motion for Summary Judgment. Signed by District Judge Sharion Aycock on 3/26/2013. (sba)
IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF MISSISSIPPI
EASTERN DIVISION
BERENICE GREENLAW DEANES
v.
PLAINTIFF
CAUSE NO.: 1:11-CV-198-SA-DAS
NORTH MISSISSIPPI STATE HOSPITAL
DEFENDANT
MEMORANDUM OPINION
Plaintiff Berenice Greenlaw Deanes claims she was terminated from her position as a nurse
with the North Mississippi State Hospital due to her race. Before the Court is Defendant’s Motion
for Summary Judgment [33]. After considering the motion, response, authorities, and summary
judgment record, the Court is prepared to rule.
BACKGROUND FACTS & PROCEDURAL HISTORY
Deanes (a black female) began working for the North Mississippi State Hospital (NMSH)
in 2008. NMSH serves patients with mental and emotional problems. Deanes was hired by
Executive Nurse Jan Botts (a white female). Botts evaluated Deanes twice during her employment
and on both occasions gave her “excellent marks.” On the night of June 21, 2009, Deanes was
involved in an incident with Jane Doe,1 a 19-year old female patient.
According to Deanes, she was informed by another nurse that Patient Doe had not taken her
medication. Deanes attempted to get Doe to take her medication, but Doe refused. Doe began to
use profanity and “get loud.” Doe grabbed Deanes by her arms and tried to pull Deanes to the floor.
Deanes put her arms on the patients arms and began “walking” her backwards toward a couch.
Deanes described the events as:
At the time I remember taking my arms and putting them on top of my hands and
1
The patient’s name has been redacted to protect medical privacy.
putting them on top of her arms. And she was pulling me all at the same time. And
there was struggle because she was struggling. She was using all her force to try and
get me down. And so I remembered us getting to the couch. And I remember hitting
my knee on the wood part of the couch. And she sat down on the couch. When she
sat down on the couch, she released me and I fell backwards from the couch.
Doe then got off the couch and tried to grab Deanes again. Deanes stood with her arms out, “elbows
locked,” and asked Doe to respect her personal space. Doe ran towards Deanes and into her
outstretched hands, which caused her to fall backwards.
Campus police officer Kerry Whitten was the only witness to the incident aside from Deanes
and Doe. Whitten observed at least a portion of the incident on a video monitor. After Doe had
been taken back to her room, Whitten told the nurse in charge, Kathy Gilmore, that he saw Deanes
push Doe down on the couch. Gilmore contacted Botts and reported what Whitten had told her.
Botts in turn contacted David Ledbetter, NMSH’s Director of Risk Management, to conduct an
investigation into the incident.
The NMSH employee handbook provides:
Under no circumstance will an employee strike, shove, pinch, engage in sexual acts,
neglect or otherwise subject any consumer to violent treatment, verbal abuse or
exploitation.
Any employee witnessing or having suspicion of any mistreatment, violence, threat,
neglect, exploitation, physical abuse, sexual abuse or verbal abuse must report the
incident immediately. If an immediate report is not possible, the employee must
report the incident not later than the end of the shift. Failure to report the offense to
proper authorities is considered a Group III offense.
Consumer abuse and neglect are very serious offenses and will result in immediate
removal from the workplace or termination. Further, such actions will lead to
prosecution to the fullest extent of the law.
On June 22 and 23, Ledbetter interviewed and obtained statements from Whitten, Gilmore,
Doe, as well as others employees who were present at the hospital on the night of the incident.
2
However, he was unable to obtain a statement from Deanes because she was out of town attending
a seminar. At Ledbetter’s direction, Botts contacted Deanes on June 23, 2009 and asked her to
prepare a written statement regarding what occurred.2 Deanes prepared a statement containing her
account of the incident on June 24. However, Ledbetter completed his investigation and prepared
an investigative report prior to receiving Deanes’ statement.
In Gilmore’s written statement, she states that after the incident occurred, Whitten told her,
“Well, I was watching the security camera and I saw [Deanes] push [Doe] down on the couch pretty
hard.” In Whitten’s written statement, he does not state that he saw a push, but states that “I turned
around and saw on the women’s unit camera [Deanes] and [Doe]. [Deanes] had both hands up and
the same time [Doe] was falling backwards on the couch.” However, Ledbetter testified that when
he interviewed Whitten regarding the discrepancy between his written statement and what he told
Gilmore, Whitten told him that “there was no question that the patient was pushed back,” that he
observed Deanes make a “pushing motion,” and “she put her hands up, she pushed out, the patient
went back over the couch.” Whitten also stated in his deposition that he told Ledbetter and Gilmore
that Deanes had pushed Doe. However, when pressed in his deposition, Whitten admitted that he
did not actually see the “push,” only the “aftermath.” Whitten testified:
A:
Q:
A:
Q:
A:
Q:
No, I didn’t actually see the push but I saw what [sic] the patient landed on the couch
and Ms. Deanes standing in front of her.
You have no idea whether or not – you have no idea what happened, what had
occurred prior to – prior to seeing the patient falling on the couch, you have no idea
what happened previous to that, do you?
Nope.
You don’t know whether or not the patient was out of control, do you?
No, I don’t.
I mean, do the nurses have a right to defend themselves?
2
Aside from this, Botts was not involved in the investigation.
3
A:
Q:
A:
Q:
A:
Not to push or shove patients in a violently [sic] manner to cause them to fall back
like that, no.
Did she push the patient in a violent manner?
From the way she hit the couch that’s what it looked like.
Could the patient have ran into her outstretched arms and fall backwards on her own
momentum?
I don’t believe so, no.
Ledbetter prepared a three page investigative report summarizing the statements and
interviews. Ledbetter’s report states that “Whitten . . . observed RN Deanes push patient away
causing patient to land on a sofa that was directly behind her” and “Whitten told RN Gilmore ‘I was
watching the security camera and I saw [Deanes] push [Doe] down on the couch pretty hard, so I
though I better come over.’” The report also recounts Ledbetter’s interview with Doe, who told him
that “I don’t feel good because the nurse push [sic] me down on the couch Sunday night and I hit
my head on the wooden end.”
Ledbetter sent his report to Botts and Greg Sappington, the NMSH personnel officer.
Deanes, Botts, and Sappington met on July 2. Deanes was informed of the allegations against her
and she denied abusing Doe. At this meeting, Deanes was given a pre-termination notice signed by
Botts and Sappington. A pre-termination notice places an employee on administrative leave pending
a final determination. Botts testified that she recommended terminating Deanes based on the
“investigative report and our handbook.” Sappington somewhat confusingly testified that he did not
“personally recommend” terminating Deanes, but “based on the evidence, [had] no choice but to
probably terminate her based on our policy.” During the meeting, the possibility of Deanes
resigning was discussed. There was also some mention of a videotape. However, when Deanes
requested to view the tape, she was told she would have to subpoena the video. In reality, no tape
existed due to a problem with the recording system. Deanes decided not to resign, and filed a
4
grievance asking for a formal termination hearing with Dr. Paul Callens, the Director of NMSH.
On July 13, 2009, Deanes, Callens, and Sappington participated in a pre-termination
conference. Callens was the final decision maker regarding whether or not to terminate Deanes.
At the conclusion of the hearing, Callens made the decision to terminate Deanes. Callens testified
that he based his decision on Whitten’s and Doe’s statements (as relayed to him by Ledbetter’s
report) and that he did not believe Deanes’ version of the events. NMSH ultimately issued a
termination notice on July 13, 2009 signed by Callens.
On September 11, 2009, Deanes filed a charge of discrimination with the Equal Employment
Opportunity Commission (EEOC). The EEOC determined that reasonable cause existed to believe
that Deanes was discharged based on her race and issued a notice of right to sue. Deanes now brings
the instant suit alleging she was terminated based on her race.
SUMMARY JUDGMENT STANDARD
“The court shall grant summary judgment if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.” FED. R.
CIV. P. 56(a). “An issue of material fact is genuine if a reasonable jury could return a verdict for the
nonmovant.” Agnew v. Washington Mut. Fin. Group, LLC, 244 F. Supp. 2d 672, 675 (N.D. Miss.
2003) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 91 L. Ed. 2d 202
(1986)).
“A party asserting that a fact cannot be or is genuinely disputed must support the assertion
by: (A) citing to particular parts of materials in the record, including depositions, documents,
electronically stored information, affidavits or declarations, stipulations (including those made for
5
purposes of the motion only), admissions, interrogatory answers, or other materials; or (B) showing
that the materials cited do not establish the absence or presence of a genuine dispute, or that an
adverse party cannot produce admissible evidence to support the fact.” FED. R. CIV. P. 56(c)(1).
“Conclusional allegations and denials, speculation, improbable inferences, unsubstantiated
assertions, and legalistic argumentation do not adequately substitute for specific facts showing a
genuine issue for trial.” Oliver v. Scott, 276 F.3d 736, 744 (5th Cir. 2002).
The Court is not to weigh the evidence or engage in credibility determinations. Anderson,
477 U.S. at 249, 106 S. Ct. 2505; Deville v. Marcantel, 567 F.3d 156, 164 (5th Cir. 2009). “[T]he
court must view the facts in the light most favorable to the non-moving party and draw all
reasonable inferences in its favor.” Deville, 567 F.3d at 164.
DISCUSSION
Under Title VII, it is “an unlawful employment practice for an employer . . . to discharge any
individual, or otherwise to discriminate against any individual with respect to his compensation,
terms, conditions, or privileges of employment, because of such individual’s race, color, religion,
sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1). Because Plaintiff seeks to prove her case
circumstantially, this Court applies the familiar framework outlined in McDonnell Douglas Corp.
v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973). Under McDonnell Douglas, a
plaintiff must first establish a prima facie case of discrimination by establishing that (1) she was a
member of a protected group; (2) she was qualified for the position she held; (3) she suffered an
adverse employment decision; and (4) she was either replaced by someone outside her protected
group or treated less favorably than employees not in her protected group. Okoye v. Univ. of Tex.
Houston Health Sci. Ctr., 245 F.3d 507, 513 (5th Cir. 2001).
6
Once plaintiff has made her prima facie case, the defendant has the burden of producing a
legitimate, nondiscriminatory reason for the adverse employment action. Parker v. State of La. Dep’t
of Educ. Special Sch. Dist., 323 F. App’x 321, 327 (5th Cir. 2009). Defendant’s burden at this stage
is merely one of production—not persuasion. Id. If the defendant can articulate a reason that, if
believed, would support a finding that the action was nondiscriminatory, then the inference of
discrimination created by the plaintiff’s prima facie case disappears, and the plaintiff is left with the
ultimate burden of proving intentional discrimination. St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502,
511-12, 113 S. Ct. 2742, 125 L. Ed. 2d 407 (1993). To meet this burden, the plaintiff must produce
substantial evidence indicating that the proffered legitimate non-discriminatory reason is a pretext
for discrimination.
Laxton v. Gap Inc., 333 F.3d 572, 578 (5th Cir. 2003)
Pretext may be
established “either through evidence of disparate treatment or by showing that the employer’s
proffered explanation is false or ‘unworthy of credence.’” Id. (quoting Reeves v. Sanderson
Plumbing Prods., Inc., 530 U.S. 133, 143, 120 S. Ct. 2097, 147 L. Ed. 2d 105 (2000)).
I.
Prima Facie Case
Deanes is a member of a protected class, qualified for her position, experienced an adverse
employment, and was replaced by a white employee. Plaintiff has established her prima facie case.
II.
Legitimate, Non-Discriminatory Reason
NMSH asserts that it terminated Deanes for committing patient abuse, a Group III offense.
NMSH has satisfied its burden. Therefore, the burden shifts back to the Plaintiff to demonstrate that
Defendant’s proffered reason is a pretext for discrimination.
III.
Pretext
The job of a reviewing court conducting a pretext analysis is “not to engage in a second-
7
guessing of an employer’s business decisions.” LeMaire v. Louisiana Dep’t of Transp. & Dev., 480
F.3d 383, 391 (5th Cir. 2007). In order to demonstrate pretext, the Plaintiff must do more than show
that NMSH made an incorrect decision; she must show that it made a discriminatory one. Id. The
issue at the pretext stage is whether the Defendant’s reason, even if incorrect, was the real reason
for Plaintiff’s termination. Sandstad v. C.B. Richard Ellis, Inc., 309 F.3d 893, 899 (5th Cir. 2002).
Even if Defendant’s belief that Plaintiff had violated company policy was incorrect, this does not
demonstrate that Defendant’s proffered reason for terminating Plaintiff was a pretext, nor does it
prove discrimination. See Mayberry v. Vought Aircraft Co., 55 F.3d 1086, 1091 (5th Cir. 1995).
Defendant’s alleged error in relying on Whitten’s statement and the “word of a mental
patient” over Deanes is insufficient to establish that Defendant lacked a good faith belief that
Plaintiff violated NMSH policy. Deanes argues that she has “produced overwhelming evidence that
the allegation of abuse is not credible,” relying primarily on the discrepancies between Whitten’s
deposition testimony and the statement he gave to Ledbetter and Gilmore after the incident.
However, “simply disputing the underlying facts of an employer’s decision is not sufficient to create
an issue of pretext.” LeMaire, 480 F.3d at 391. Similarly, the Fifth Circuit Court of Appeals has
observed that the “existence of competing evidence about the objective correctness of a fact
underlying a defendant’s proffered explanation does not in itself make reasonable an inference that
the defendant was not truly motivated by its proffered justification.” Little v. Republic Refining Co.,
924 F.2d 93, 97 (5th Cir. 1991) (citing Bienkowski v. Am. Airlines, Inc., 851 F.2d 1503, 1507 (5th
Cir.1988)).
In the case of Jackson v. Cal-Western Packaging Corp., 602 F.3d 374 (5th Cir. 2010), an
employee who was terminated over allegations of sexual harassment claimed his firing was a pretext
8
for age discrimination based in part upon his denial of committing any misconduct. Id. at 379. The
Fifth Circuit explained:
Jackson’s self-serving statements that he did not commit sexual harassment
are insufficient to create a triable issue of fact as to whether Cal-Western fired him
because of his age. In cases in which an employer discharges an employee based on
the complaint of another employee, the issue is not the truth or falsity of the
allegation, but whether the employer reasonably believed the employee’s allegation
and acted on it in good faith. Cal-Western was faced with considerable evidence that
Jackson was violating the company’s sexual harassment policy. The evidence came
from several employees, both male and female, and was substantiated by both an
internal and external investigation of Jackson’s behavior. Jackson has presented no
evidence as to why the company’s reliance on the evidence against him was in bad
faith. His own conclusory assertion that he did not behave inappropriately is
irrelevant, since he has provided no evidence to suggest that Cal-Western’s decision
to trust the results of the two investigations, rather than his self-serving denial of
wrongdoing, was unreasonable or in bad faith. Jackson’s assertion of innocence
alone does not create a factual issue as to the falsity of Cal-Western’s proffered
reason for terminating him.
Id. (footnotes, citations, and quotations omitted); see also Sandstad, 309 F.3d at 899 (“if Appellant
intends to show that the explanation is so unreasonable that it must be pretextual, it is Appellant’s
burden to offer evidence creating a fact issue regarding reasonableness”).
Here, Callens was presented with Ledbetter’s investigative report which contained
statements (as relayed by Ledbetter) from Whitten and Doe that Deanes had committed patient abuse
by pushing Doe down on the couch.3 The fact that Whitten later backpedaled in his deposition
testimony regarding whether he actually saw the alleged “push” has no bearing on whether NMSH
unreasonably or in bad-faith relied on Ledbetter’s summaries in the investigative report, or that it’s
3
Plaintiff argues that the statement from Doe contained in Ledbetter’s report is hearsay.
This would be true, and the statement likely inadmissable, if offered for the truth of the matter
asserted. However, the statement may be considered, not for its truthfulness, but for its effect on
Defendant’s decision. Sandstad, 309 F.3d at 899.
9
reason for terminating Deanes was pretext for racial discrimination.4
Deanes also argues that similarly situated white employees were treated more favorably.
Disparate treatment occurs where an employer treats one employee more harshly than other
“similarly situated” employees for “nearly identical” conduct. See Lee v. Kansas City S. Ry. Co.,
574 F.3d 253, 260 (5th Cir. 2009). The “employee being compared must have ‘held the same job
or responsibilities, shared the same supervisor or had their employment status determined by the
same person, and have essentially comparable violation histories.’” Brooks v. Lubbock Cnty. Hosp.
Dist., 373 F. App’x 434, 436 (5th Cir. 2010) (quoting Lee, 574 F.3d at 260). Finally, Defendant
must also have been aware of the alleged misconduct of the other employee. Wallace v. Methodist
Hosp. Sys., 271 F.3d 212, 221 (5th Cir. 2001). Here, all of Deanes’ putative comparators are either
not similarly situated to Deanes, did not engage in “nearly identical” conduct, or both.
A.
Suzy Gildea
Deanes first alleges that Suzy Gildea, a white female, was insubordinate (a Group II offense)
and used profanity towards a patient (a Group I offense), yet she was only reprimanded and forced
to write a letter of apology. Gildea was also written up for a series of minor violations such as
inappropriate telephone calls, a disheveled and unkempt “overall appearance,” untimely work, and
“not handl[ing] situations that come up in a professional manner.” These offenses are not Group
III offenses nor are they “nearly identical” to patient abuse. Therefore, Gildea’s misconduct and
4
The Court also notes that it has been presented with no evidence that Whitten acted with
racial animus when he reported seeing Deanes push the patient. Deanes stated that Whitten did
not hold any animus against African-Americans “in general,” but might have had disliked
Deanes personally because she knew Whitten was allegedly having an affair with another
employee. When asked how that connected to race, Deanes replied “I’m black and I’m a woman
and he had something to be afraid of with me, so I’m connecting that to the race.”
10
subsequent disciplinary measures are not probative as to whether NMSH discriminated against
Deanes.
B.
Dustin Carter
Deanes next alleges that Dustin Carter, a white mental health technician, had a confrontation
with a patient and elbowed him the mouth, causing the patient’s mouth to bleed, yet Carter was not
terminated. Deanes was the nurse on duty during the Carter incident and prepared the incident
report herself. Deanes’ report states: “Patient was being given a PRN injection. Patient began
fighting, kicking and biting staff. Patient hit and spit blood on Dustin Carter’s face. Also bit him
on the shoulder. Employee went to the ER after incident.” Deanes’ report does not mention Carter
hitting the patient and she checked “none” on the report regarding patient abuse. Deanes now claims
that she did not remember Carter striking the patient while she was filling out the report, but
remembered the event “[s]hortly after that.” Deanes did not revise her report. When asked if the
incident with Carter was patient abuse, Deanes responded “I did not see it as patient abuse at that
time.” Deanes’ attempt to use the Carter incident to show discrimination when she herself reported
that no abuse occurred is without merit.
C.
Robert Lewis
Deanes next alleges that “Robert Lewis broke the tooth of a patient during a take down.”
The only cited evidence is Deanes’ deposition, where she testified:
Q:
A:
Q:
A:
Q:
A:
Q:
A:
Tell me about the Robert Lewis incident
This was hearsay. I heard that he had broken a tooth of a patient during a take-down.
Who told you this?
Other employees were discussing it.
Who were the employees?
I don’t remember who they were at the time.
And when did you hear about this?
At work.
11
This allegation is based on hearsay and fails to establish that Lewis was similarly situated
to the Plaintiff or engaged in nearly identical conduct.
D.
Kathy Gilmore
Deanes alleges that “Kathie Gilmore committed an offense by allowing a security guard to
administer medication to a patient.” The only evidence Deanes provides is an unsigned document
entitled “Telephone interview with CP,” which is presumably an EEOC investigator’s notes of a
telephone conversation he or she had with Deanes. The document states “According to the
‘grapevine,’ Gilmore allowed a security guard to administer medication to a patient.” This
allegation is based on hearsay and fails to establish that Gilmore engaged in conduct “nearly
identical” to patient abuse.
Deanes also alludes to several other incidents that she claims demonstrates racial
discrimination. Deanes asserts that when she and a black nurse attempted to sign up for a continuing
education class, Botts told Deanes that she could not go. However, when two white nurses
expressed interest in the class, Botts allowed all of them to attend. The only record evidence cited
regarding this incident is the above referenced document entitled “Telephone Interview with CP”
which consists of an EEOC investigator’s notes of the Plaintiff’s own unsworn statements.
Moreover, in response to NMSH’s argument that the same-actor inference should apply to Botts,
Deanes argues that “Botts did not fire Deanes” and “after the first pre-termination meeting, Botts
had no involvement with Deanes’ termination.”
Deanes also cites her own deposition testimony regarding statements allegedly made by
Terry Miller, the former Director of Human Resources for NMSH. Miller resigned several months
12
prior to Deanes’ termination.5 Deanes contacted Miller after her first meeting with Botts and
Sappington. Deanes asserts that Miller told her that “[i]t was the standard practice while we were
working there that blacks that were given a pre-termination notice were generally terminated.”
Again, these statements are hearsay and not competent summary judgment evidence. Miller did not
testify about this practice in his own deposition.6
Finally, Plaintiff points out that the EEOC determined that reasonable cause existed to
believe that Plaintiff was discharged based on her race. Although an EEOC determination may be
probative of discriminatory intent, it is not dispositive. Price v. Fed. Express Corp., 283 F.3d 715,
725 (5th Cir. 2002). The relevant portion of the determination provides:
Evidence obtained by the Commission revealed Charging Party was hired in May
2008 as a Registered Nurse and worked with an unblemished employment history
until her discharge in July 2009. The investigation revealed Charging Party was
treated less favorably than similarly situated White employees who violated
company policy.
The evidence revealed Charging Party was accused of patient abuse after she utilized
an approved restraining technique after a patient became combative and aggressive.
It is undisputed that the patient displayed escalating aggressive behavior throughout
the day in question. The decision to discharge Charging Party was based on
contradictory evidence and without the investigating official discussing the matter
with her. Comparative evidence revealed White employees where accused of patient
abuse who were not discharged. In addition, information uncovered during the
course of the investigation revealed another Black employee who was given the
ultimatum to resign or be discharged after she was accused of violating company
policy.[7] Disparate treatment was shown when similarly situated White employees
were not given the same ultimatum under similar circumstances.
5
Defendant asserts that Miller resigned in lieu of termination after it was determined that
he received his college degree from a “diploma mill.”
6
While Miller testified that he believed Botts had a unethical practice of “weeding out
people,” he stated he not believe that it was race based.
7
The identity of the other black employee is unclear.
13
Based on this analysis, the evidence is sufficient to conclude that Charging Party and
another Black employee were discharged because of their race (Black) in violation
of Title VII of the Civil Rights Act of 1964, as amended.
The Court has already determined that Plaintiff has failed to identify any similarly situated
white employees who were treated more favorably that the Plaintiff. Therefore, the determination
letter is insufficient to carry Deanes’ pretext burden. See Septimus v. Univ. of Houston, 399 F.3d
601, 610 (5th Cir. 2005) (EEOC determination was not sufficient to meet plaintiff’s pretext burden
when plaintiff failed to rebut defendant's legitimate reason for the adverse employment action).
In sum, Plaintiff has presented no evidence that her race played any role in NMSH’s decision to
terminate her. Accordingly, NMSH’s Motion for Summary Judgment is GRANTED as Plaintiff
failed to raise a genuine dispute of material fact that Deanes was terminated because of her race.
CONCLUSION
Defendant’s Motion for Summary Judgment is GRANTED, Plaintiff’s claims are dismissed,
and this case is CLOSED.
SO ORDERED on this, the 26th day of March, 2013.
/s/ Sharion Aycock
UNITED STATES DISTRICT JUDGE
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