Anderson v. The Nebraska Medical Center

Filing 67

MEMORANDUM AND ORDER - The Motion for Summary Judgment submitted by Defendant The Nebraska Medical Center (Filing No. 51 ) is granted. The Plaintiff's Amended Complaint (Filing No. 7 ) is dismissed, with prejudice. A separate Judgment will be issued. Ordered by Chief Judge Laurie Smith Camp. (GJG)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
BRIAN A. ANDERSON,
Plaintiff,
v.
THE NEBRASKA MEDICAL CENTER,
a Nebraska non-profit corporation,
Defendant.

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CASE NO. 8:12CV390

MEMORANDUM
AND ORDER

This matter is before the Court on the Motion for Summary Judgment (Filing No. 51)
submitted by the Defendant The Nebraska Medical Center (the “Hospital”). For the
reasons discussed below, the Motion will be granted.
FACTS
The parties’ briefs (Filing Nos. 52, 60 and 66) and indexes of evidence (Filing Nos.
53 and 61) reveal that there is no genuine dispute as to the following facts.
Plaintiff Brian A. Anderson is a black male resident of Nebraska. In December
1998, he began employment at the Hospital in Omaha, Nebraska, and was at all times an
at-will employee. Beginning in September 2001, he worked as a phlebotomist. His direct
supervisors were Amy Brazile, Manager of Support Services, and Filadelfo Martello,
Manager of Support Services-South. Generally, Anderson’s duties involved the collection,
preparation, and distribution of patient blood specimens. In 2008 and 2009, Anderson’s
performance evaluations were satisfactory or above, with the exception of his failure to
document his continuing education.
On February 12, 2010, a patient (“Patient No. 1") made a complaint to the Hospital’s
Ninth Floor Manager, Michelle Freeman. Patient No. 1 complained that a male employee
who drew her blood treated her inappropriately. Patient No. 1 stated that the employee
positioned her hand between his legs, and when she moved her hand, he told her to put

her hand back and then he “danced around.” Patient No. 1 stated, "He put my hand in his
junk as if he wanted me to get him off - it was very clear of his intent." Patient No. 1
described the employee as a “large black man.”
It was the Hospital’s policy to direct patient complaints to the Hospital's Patient
Relations Department, and Freeman reported Patient No. 1's complaint to that department.
The Patient Relations Department then informed Ann Siewert of the Hospital’s Employee
Relations Department and Amy Brazile of the Hospital’s Support Services Department
about the complaint. Brazile compiled a list of blood draws taken from Patient No. 1, and
determined that Anderson, who was approximately six-feet three-inches tall and weighed
approximately 280 pounds, drew blood from Patient No. 1 on February 12, 2010. No other
large, black phlebotomist had drawn blood from Patient No. 1. Neither Siewert nor Brazile
considered whether a nurse could have been the subject of Patient No. 1's complaint,
because it was their understanding that Hospital nurses typically did not draw blood by way
of “arm pokes.”
On February 17, 2010, Brazile and Siewert met with Anderson regarding Patient No.
1's complaint. Brazile and Siewert counseled Anderson on the importance of being aware
of patients’ perceptions when he touched them or positioned their extremities during the
performance of his job duties. Brazile and Siewert told Anderson that if he did hold any
patient’s arms between his legs in the past, he should not do so in the f uture.
On August 24, 2010, six months after Patient No. 1’s complaint, the Hospital
received a second complaint from a different patient (“Patient No. 2”). Patient No. 2
complained that a "heavy set black man in a white lab coat" came to her Hospital room to
take her blood and "he ran his penis over my hand." Patient No. 2 also stated that the
employee's penis was outside his pants and was bare against her skin. Patient No. 2 did
not remember the exact the date of the incident, but informed a staff member that the
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incident took place the last time she was at the Hospital as an in-patient. Becky Ferraguti,
the Hospital’s Patient Relations Liaison, documented the complaint. In doing so, Ferraguti
first reviewed the dates when Patient No. 2 was in the Hospital. Ferraguti determined that
Patient No. 2 had last been in the Hospital in March 2010 and determined that the date on
which Patient No. 2 would have had her blood drawn was on or around March 15, 2010.
Because the Patient Relations software required a particular incident date to be
entered when documenting patient complaints, Ferraguti entered March 15, 2010, as the
incident date even though Patient No. 2 did not remember the exact date of the incident.
Ferraguti informed Siewert and Martello of Patient No. 2's complaint, and Martello compiled
a list of blood draws taken by phlebotomists from Patient No. 2 in March 2010, including
the name of the phlebotomist who took each draw. Martello determined that Anderson had
drawn blood from Patient No. 2 on March 15, 2010, and other tim es in March 2010.
The only other male African-American phlebotomist that drew blood from Patient
No. 2 in March 2010 was Nate Butler, who was not large or heavy-set. Since Patient No.
2 said the employee was wearing a lab coat, Hospital officials did not consider whether
Patient No. 2 was describing a nurse, because phlebotomists typically wore white lab coats
and nurses did not. Based on the evidence reviewed, Hospital officials concluded that
Anderson was the employee to whom Patient No. 2’s complaint referred. The similar
nature of Patient No. 1's complaint and Patient No. 2's complaint also led Hospital officials
to give credence to the complaints.
On August 26, 2010, the Hospital terminated Anderson’s employment.

He

exhausted his administrative remedies and brought this action on November 5, 2012,
alleging that the Hospital discriminated against him on the basis of his race or color, in

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violation of 42 U.S.C. § 1981 (“Section 1981") and Title VII of the Civil Rights Act of 1964,
as amended, 42 U.S.C. § 2000e, et seq. (“Title VII”).
STANDARD OF REVIEW
“Summary judgment is appropriate when the record, viewed in the light most
favorable to the non-moving party, demonstrates there is no genuine issue of material fact
and the moving party is entitled to judgment as a matter of law.” Gage v. HSM Elec. Prot.
Servs., Inc., 655 F.3d 821, 825 (8th Cir. 2011) (citing Fed. R. Civ. P. 56(c)). The court will
view “all facts in the light most favorable to the non-moving party and mak[e] all reasonable
inferences in [that party's] favor.” Schmidt v. Des Moines Pub. Sch., 655 F.3d 811, 819
(8th Cir 2011). “[W]here the nonmoving party will bear the burden of proof at trial on a
dispositive issue . . . Rule 56(e) permits a proper summary judgment motion to be opposed
by any of the kinds of evidentiary materials listed in Rule 56(c), except the mere pleadings
themselves.” Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). The moving party need
not negate the nonmoving party’s claims by showing “the absence of a genuine issue of
material fact.” Id. at 325. Instead, “the burden on the moving party may be discharged by
‘showing’ . . . that there is an absence of evidence to support the nonmoving party’s case.”
Id.
In response to the movant’s showing, the nonmoving party’s burden is to produce
specific facts demonstrating “‘a genuine issue of material fact' such that [its] claim should
proceed to trial.” Nitro Distrib., Inc. v. Alticor, Inc., 565 F.3d 417, 422 (8th Cir. 2009)
(quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986)).
The nonmoving party “'must do more than simply show that there is some metaphysical
doubt as to the material facts,' and must come forward with 'specific facts showing that
there is a genuine issue for trial.'” Torgerson v. City of Rochester, 643 F.3d 1031, 1042

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(8th Cir. 2011) (quoting Matsushita, 475 U.S. at 586-87)), cert. denied, 132 S. Ct. 513
(2011). “The mere existence of some alleged factual dispute between the parties” will not
defeat an otherwise properly supported motion for summary judgment. Quinn v. St. Louis
Cnty., 653 F.3d 745, 751 (8th Cir. 2011) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 247-48 (1986)) (internal quotation marks omitted).
In other words, in deciding “a motion for summary judgment, 'facts must be viewed
in the light most favorable to the nonmoving party only if there is a “genuine” dispute as to
those facts.'” Ricci v. DeStefano, 557 U.S. 557, 586 (2009) (quoting Scott v. Harris, 550
U.S. 372, 380 (2007)). Otherwise, where the Court finds that “the record taken as a whole
could not lead a rational trier of fact to find for the non-moving party”–where there is no
“genuine issue for trial”–summary judgment is appropriate. Matsushita, 475 U.S. at 587
(quoting First Nat'l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 289 (1968)) (internal
quotation marks omitted).
DISCUSSION
“Title VII and §1981 set forth parallel, substantially identical, legal theories of
recovery in cases alleging intentional discrimination in employment on the basis of race.”
Kim v. Nash Finch Co., 123 F.3d 1046, 1063 (8th Cir. 1997). “The elements of claims
alleging disparate treatment on the basis of race under Title VII and intentional
employment discrimination on the basis of race under § 1981 are identical.” Id.
Anderson contends that his claims should be reviewed under the Price Waterhouse
burden-shifting formula, because his race or color was a motivating factor in the Hospital’s
decision to terminate his employment. He suggests that the burden is on the Hospital to
demonstrate that it would have terminated him even if it had not taken his race or color into
account. Price Waterhouse v. Hopkins, 490 U.S. 228, 242 (1989).

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The Hospital contends that Anderson has no direct evidence of discrimination, and
his claims must be evaluated under the burden-shifting framework of McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973). To establish a prima facie case of discrimination
under the McDonnell Douglas framework, “a plaintiff must show (1) he is a member of a
protected class, (2) he met his employer's legitimate expectations, (3) he suffered an
adverse employment action, and (4) the circumstances give rise to an inference of
discrimination.” Pye v. Nu Aire, Inc., 641 F.3d 1011, 1019 (8th Cir.2011). Once the prima
facie case is established, the burden of production shifts to the employer to articulate a
legitimate, nondiscriminatory reason for its action. Floyd-Gimon v. Univ. of Ark. for Med.
Sciences ex rel. Bd. of Trustees of Univ. Of Ark., 716 F.3d 1141, 1149 (8th Cir. 2013). If
the defendant does so, the plaintiff then has the burden of proving that the defendant’s
proffered reason is a pretext for discrimination. Id.
Anderson has not presented direct evidence1 of discrimination, demonstrating that
race or color was a motivating factor in the Hospital’s decision to terminate his
employment. The fact that patients complained of misconduct on the part of an employee
who fit Anderson’s physical description, including his race or color, does not suggest that
anyone at the Hospital had racial animus toward Anderson or was motivated to terminate
Anderson because of his race or color. Accordingly, the McDonnell Douglas burdenshifting analysis will be applied.
Viewing the record in a light most favorable to Anderson, the Court will assume he
was innocent of any wrongdoing. The Court will also assume, without deciding, that he can
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Direct evidence of discrimination “is evidence that shows a specific link between
the alleged discriminatory animus and the challenged decision, sufficient to support a
finding by a reasonable fact finder that an illegitimate criterion actually motivated the
adverse employment action.” Evance v. Trumann Health Services, LLC, 719 F.3d 673,
677 (8th Cir. 2013) (quoting Russell v. City of Kansas City, Missouri, 414 F3d 863, 866
(8th Cir. 2005)) (internal quotation marks omitted).
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prove all four elements of a prima facie case of discrimination.2 The burden then is on the
Hospital to come forward with a legitimate, non-discriminatory reason for his termination,
and the Hospital has done so. Two patients complained of separate incidents of serious
misconduct on the part of an employee occurring in February and March of 2010.
Anderson met the patients’ description of the employee, and the Hospital concluded that
he was the only employee meeting that description who was in a position to commit the
alleged misconduct. There is no dispute that the two patient complaints formed the basis
for Anderson’s termination.
Because the Hospital has met its burden of coming forward with a legitimate, nondiscriminatory reason for his termination, it is Anderson’s burden to demonstrate that the
Hospital’s proffered reason for terminating him–patient complaints–was a pretext for race
or color discrimination. “A reason cannot be proved to be pretext for discrimination unless
it is shown both that the reason was false, and that discrimination was the real reason.”
Bone v. G4S Youth Servs., LLC, 686 F.3d 948, 955 (8th Cir. 2012) (quoting St. Mary’s
Honor Ctr. v. Hicks, 509 U.S. 502, 515 (1993)) (internal quotation marks omitted).
Anderson cannot meet that burden simply by showing that the Hospital’s investigation was
not thorough, or that his termination lacked fundamental fairness or due process. 3

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The Hospital denies that Anderson can prove he met the Hospital’s legitimate
expectations, or that the circumstances of the termination give rise to any inference of
discrimination.
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In Evance, a nurse was terminated from her job at a nursing home due to
allegations of inappropriate contact with a patient. She sued her former employer
under Title VII, alleging discrimination on the basis of her sex and religion, and she
complained that her accusers were not credible and the employer’s investigation was
not thorough. Upholding the district court’s grant of summary judgment for the
defendants, the Eighth Circuit stated, “We are not a super-personnel department with
the power to second-guess employers’ business decisions.” 719 F.3d at 678 (quoting
Russell v. TG Mo. Corp., 340 F.3d 735, 746 (8th Cir. 2003)) (internal quotation marks
omitted).
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Anderson must pass a “rigorous” test, showing that he was “similarly situated in all
relevant respects” to employees of a different race or color who were treated more
favorably. Evance v. Trumann Health Services, LLC, 719 F.3d 673, 678 (8th Cir. 2013).
“‘[T]he individuals used for comparison must have dealt with the same supervisor, have
been subject to the same standards, and engaged in the same conduct without any
mitigating or distinguishing circumstances.’” Id. (quoting Bone, 686 F.3d. at 956). 4
Anderson has come forward with no evidence that the Hospital treated similarly
situated non-black employees any better than it treated him. There is no evidence that
non-black employees accused of misconduct received more thorough investigations, more
opportunities to clear their names, or lesser forms of discipline. As in Evance, Anderson
“does not provide any evidence that any other employees who were not [black] were
accused of the exact or similar behavior as [he] was.” Id. at 678. Although he argues that
other African-American males, such as a nurse, should have been included in the
Hospital’s pool of suspects, that argument fails to support a claim of race discrimination.
The fact that the Hospital may have given favorable treatment to another African-American
male, such as a nurse, by failing to include him in the pool of suspects, does not provide
any inference that the Hospital discriminated against Anderson on the basis of his race.
Anderson places considerable emphasis on the “reasonable cause finding” by an

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The Eighth Circuit acknowledges “two lines of cases on the standard to
determine whether employees are similarly situated at the prima facie stage of the
McDonnell Douglas test.” Pye, 641 F.3d at 1019 (quoting Wimbley v. Cashion, 588
F.3d 959, 962 (8th Cir. 2009)) (internal quotation marks omitted). “One line sets a ‘low
threshold,’ requiring only that the employees are ‘involved in or accused of the same or
similar conduct and are disciplined in different ways.’ The other line more rigorously
requires that the employees be ‘similarly situated in all respects.’” Id. Under either
standard, Anderson has failed to come forward with similarly situated non-black
employees who were treated less favorably.
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investigator with the Nebraska Equal Opportunity Commission (“NEOC”). The investigator
concluded that the Hospital:
targeted someone who fit the description of a “black man”. This is racial
profiling, when the alleged perpetrator may not have been a staff member,
or a phlebotomist, or a black man. Racial profiling occurs when an
employee, in this instance, the Complainant, is questioned, disciplined, and
terminated, on the basis of his race.
(Attachment to NEOC Determination, Filing No. 9-2.)
The Court disagrees with the NEOC investigator’s definition of “racial profiling.”
When a crime or other misconduct has been committed, and suspects are developed
based on statistical data, that is “profiling.” When suspects are developed based on racial
stereotypes, that is “racial profiling.” When a person is subjected to a higher level of
scrutiny or surveillance by law enforcement officers, merchants, landlords, or employers,
because of the person’s race, that is also “racial profiling.” But when an eyewitness
identifies a perpetrator with a physical description, and authorities narrow the suspects
based on that physical description, that is not “profiling.” Here, both patients identified the
perpetrator as a large or heavy-set black male who came to draw their blood. The second
patient noted that he wore a white lab coat. It was not inappropriate, nor was it “racial
profiling” for the Hospital to try to identify the perpetrator through the use of the patients’
descriptions.
CONCLUSION
Because Anderson has not met his burden of demonstrating that the Hospital’s
legitimate, non-discriminatory reason for terminating his employment was a pretext for
discrimination on the basis of his race or color, the Hospital’s Motion for Summary
Judgment will be granted.

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Accordingly,
IT IS ORDERED:
1.

The Motion for Summary Judgment submitted by Defendant The
Nebraska Medical Center (Filing No. 51) is granted;

2.

The Plaintiff’s Amended Complaint (Filing No. 7) is dismissed, with
prejudice; and

3.
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A separate Judgment will be issued.

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DATED this 27th day of December, 2013.
BY THE COURT:

s/Laurie Smith Camp
Chief United States District Judge

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