Evans v. Vanderbilt University Medical Center

Filing 39

MEMORANDUM OPINION OF THE COURT. Signed by Chief Judge Kevin H. Sharp on 1/12/2016. (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(eh)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
CYNTHIA D. EVANS,
Plaintiff,
v.
VANDERBILT UNIVERSITY
MEDICAL CENTER,
Defendant.

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No. 3:14-1721
Judge Sharp

MEMORANDUM
In this age discrimination case brought by Plaintiff Cynthia Evans, Defendant Vanderbilt
University Medical Center (“Vanderbilt” or “VUMC”) has filed a Motion for Summary Judgment
(Docket No. 27). That Motion has been fully briefed by the parties and, for the reasons that follow,
will be granted.
I. Factual Background
In support of its Motion for Summary Judgment, Defendant filed a “Concise Statement of
Undisputed Material Facts” that, for the most part, Plaintiff does not dispute. Those facts show the
following:
Shortly after obtaining her nursing degree in 1994, Plaintiff became employed by
Vanderbilt. She worked in various departments, ultimately landing in Women’s Health, in the
Obstetrics and Gynecology (“OB-Gyn”) Department, where she worked as a charge nurse until her
employment ended in 2013. Jennifer Campbell, who joined VUMC in 2009 as an Assistant Nurse

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Manager, was Plaintiff’s direct supervisor.1 The Director of the OB-Gyn Department was Robin
Mutz.
Vanderbilt’s job description for a charge nurse sets “key role responsibilities” that include
“demonstrating high standards of quality patient care,” and “holding care providers accountable to
clinical and service standards.” (Pf. Depo., Docket No. 29-3 at 1). More specifically, Plaintiff was
tasked with managing the flow of patients in and out of her unit, and attending to issues affecting
the flow of services between Women’s Health and other units.
As a charge nurse, Plaintiff had supervisory responsibilities that included distributing
assignments to the group of approximately 15 nurses, care partners, and medical receptionists she
supervised, and evaluating their performance. Her supervisor responsibilities also included holding
those employees accountable to unit procedures, Vanderbilt polices, the “Vanderbilt Credo,” and
patient care and regulatory standards.
In addition to her supervisory role, Plaintiff was expected to be able to step in and serve as
a staff nurse when circumstances required. For that reason, and so she could evaluate the nurses she
supervised, Plaintiff was required to maintain a staff nurse’s skill set.
During her employment at VUMC, Plaintiff was required to participate in annual training,
including in-service and competencies.2 She and the other nurses were also expected to keep abreast
of hospital polices and were required to sign acknowledgments during the annual review process that
they had reviewed and were current on all policies.

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In early 2013, Ms. Campbell became the Interim Nurse Manager over the OB-Gyn Department,
until returning to her regular Assistant Nurse Manager position later that same year.
2

“Competencies” are a yearly, “fair-like event” that involve listening to speakers, watching videos,
engaging in hands-on activities, or other “particular things that were important to [the nurses’] jobs in OB.”
(Id. at 33-34)

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At VUMC, medications are stored in an automated dispensing machine called AcuDose, of
which there were three in Plaintiff’s unit. Its scanner system is the hospital’s preferred method for
medication administration. When utilized, the system captures and records the administration of
medication in real time.
To access the AcuDose system, employees are required to scan their fingerprints, or enter
a code. To administer medicine, a nurse logs into the system, finds the patient, clicks on the
patient’s name, chooses the medication needed, and retrieves the medication. The nurse then takes
the medication to the patient’s room, scans the patient, scans the medication, and scans the patient
again. Thereafter, the nurse can administer the medication to the patient.
To minimize errors, VUMC’s Medication Administration policy requires nurses to “validate
the five rights of medication administration.” (Docket No. 29-5 at 2). Those “rights” are: the “right
patient,” the “right medication,” the “right dose,” the “right route” (e.g.,intramuscular, intravenous,
intrathecally), and the “right time.” (Id.). In fact, that policy dictates that, save for “urgent/emergent
patient situations,” “bar-code-assisted medication administration (BCMA)” should be utilized, and
only after the order appears “in Care Organizer™.” (Id. at 7).
Because most medication administration involves the AcuDose system, the substantial
majority of medications are charted contemporaneously with their administration. When bar-code
scanning in unavailable, however, nurses are supposed to “document medications utilizing the MAR
[paper Medication Administration Record] or area specific process.” Id.
To protect the integrity of a patient’s chart, charting must be done immediately after the
medication is given or as soon thereafter as possible, and, most certainly, at least by the end of the
nurse’s shift. This allows all those who review a patient’s chart (including those on subsequent

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shifts) to know what medication has been administered.
To deter potential diversion and so that the pharmacy can justify what it has in stock,
medications must be accounted for, whether dispensed to a patient or wasted. In fact, VUMC’s
Controlled Substance policy provides that nurses are to “account for the entire amount of controlled
substances obtained or dispensed,” “use the smallest ampule or tubex available to satisfy the
dosage,” and “when the dosages dispensed is larger than the dose, document the total dose
administered and the amount wasted to show the total disposition of the drug.” (Docket No. 29-4
at 3-4). Further, “[t]wo licensed staff” must “witness any disposal or wastage of a controlled
substance and document same on the drug disposition record, CDR [controlled drug record], or via
the ADC [automated dispensing cabinet].” (Id. at 4).
On February 25, 2013, Ms. Campbell received an email from Vanessa Tompkins, a Certified
Pharmacy Technician, that notified Ms. Campbell of a narcotics discrepancy in the OB-Gyn
Department. Specifically, Ms. Tompkins’ email indicated that, during a consecutive 3-day period
between February 21 and 23, 2013, there were five Morphine 4mg vials dispensed by Plaintiff that
had not been properly accounted for. Plaintiff, who was copied on that email, responded by (among
other things) admitting that she was “guilty of the Morphine discrepancy.” (Docket No. 29-6 at 1).
Shortly after receipt of the email, Ms. Campbell spoke by phone with Plaintiff. During that
conversation, Plaintiff acknowledged that she did not document administration of the controlled
substance, did not reconcile the discrepancies, and did not record the wasting. Plaintiff explained
that she was not used to giving Morphine but could not explain why she failed to scan, waste, and
document the narcotics as required by hospital policy. On February 28, 2013, Plaintiff was placed
on administrative leave pending an investigation.

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VUMC’s “Code N Committee,” a multi-disciplinary team, investigates and analyzes cases
of suspected diversion. It is chaired by Sabrina Downs, the Director of Nursing Professional
Practice.3
Ms. Campbell and Ms Mutz interviewed the nurses who had witnessed Plaintiff’s actions on
the three days in question. Janice Sedghi, who was with Plaintiff on February 21, 2013, stated that
after entering a patient’s room, she overheard a resident verbally order “Morphine IM”
(intramuscular), which Plaintiff retrieved from the Acudose machine via “override” and
administered to the patient. The retrieval of the morphine was not logged into the computer or
patient’s charts.4 Plaintiff concedes that she did not enter the order, did not follow-up to confirm
that someone had entered the order, nor did she chart that the morphine had been administered.5
Nurse Lee Ann Ingram was interviewed about the events that took place on February 22,
2013 that involved the same patient as the previous day. According to Ms. Ingram, Plaintiff assisted
with a dressing change and again obtained Morphine from AcuDose through “override” after Ms.
Sedghi noticed that there was no active order for Morphine for the patient. While Plaintiff asserts
she told one of the residents that the “grayed out” (expired) order needed to be corrected, and that
Dr. Bennett Spetalnick, the primary physician at the time, told the residents to enter the order,

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In Plaintiff’s case, the remaining participants were Susan Amsler (HR employee relations), Andrea
Bryant (Program Director for Controlled Substances and Inventory Integrity), Stephanie Dean (Assistant
Manager of EAP), Ms. Mutz, Mark Sullivan (Director of Pharmacy), Jillian Russell (Nursing Education and
Professional Development Specialist), Ms. Campbell, and Christina White (Senior HR Consultant).
4

When a physician fails to document a verbal order for medication, it falls on the nurse to enter the
order into the computer that then routes the order to the physician for signature.
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Ms. Sedghi also reported witnessing Plaintiff “waste” Morphine by squirting it across the room.
This “waste” was not documented in AcuDose or in AdminRx, the system for accounting for controlled
substances.

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Plaintiff did not check to see whether the order had been entered, nor did she enter it herself as a
verbal order. Additionally, and for the second time in two days, Plaintiff did not document that she
administered the morphine and thus, there was no indication of it having been given in the patient’s
chart.
Ms. Ingram also reported having seen Plaintiff waste Morphine, but she did not know how
much. Ms. Ingram was not asked to witness or document any wasted narcotics.
Nurse Belinda Gascon was interviewed about the events that took place on February 23,
2013. Ms. Gascon stated (and Plaintiff confirmed) that Plaintiff took a vial of Morphine from
AcuDose and administered it based on a verbal order from a physician. Plaintiff did not enter the
Morphine order, stating in her deposition that “[i]t would have taken time.” (Docket No. 29-1, Pf.
Depo. at 169). After telling Plaintiff “we have to scan this,” Ms. Gascon scanned and documented
the Morphine in AdminRX. Ms. Gascon refused to answer the interviewer’s question about whether
she had documented medication for Plaintiff in the past.
The Code N Committee concluded that the evidence failed to show Plaintiff diverted
medication. According to Ms Downs, the Chair of the Committee, however, the evidence showed
Plaintiff “failed to follow basic nursing protocol and violated VUMC’s Controlled Substance and
Drug Administration Policies in multiple, serious ways, creating safety issues for [Plaintiff’s]
patients.” (Docket No. 31, Downs Decl. ¶ 5). Plaintiff’s errors included not scanning or
documenting the administration of medication in the patients records; failing to document waste of
medication; failing to document a physician’s verbal orders; and creating a discrepancy in the
Acudose system that was not resolved over the course of several consecutive days.
After a conference call, senior leaders of the Code N Committee decided to terminate

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Plaintiff’s employment for violating the Controlled Substance and the Medication Administration
policies on multiple occasions creating a risk of patient harm. On March 8, 2013, Plaintiff met with
Ms. Campbell and Ms. Mutz, and was told that her employment was being terminated.
Five days later, Plaintiff appealed that decision. The termination decision was first upheld
by Ms. Jones, the Chief Nursing Officer, and then by an appeals panel.
Plaintiff filed suit in this Court on August 24, 2014. Her only claim is that Defendant
violated the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq.
II. Standard of Review
The standards governing summary judgment are well known. A party may obtain summary
judgment if the evidence establishes there are no genuine issues of material fact for trial and the
moving party is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(c); Covington v.
Knox Cty. Sch. Sys., 205 F.3d 912, 914 (6th Cir. 2000). A genuine issue exists “if the evidence is
such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty
Lobby, 477 U.S. 242, 248 (1986). In ruling on a motion for summary judgment, the Court must
construe the evidence in the light most favorable to the nonmoving party, drawing all justifiable
inferences in his or her favor. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,
587 (1986).
III. Application of Law
The ADEA prohibits an employer from failing or refusing to hire, discharging, or
discriminating ‘against any individual with respect to his compensation, terms, conditions, or
privileges of employment, because of such individual’s age[.]’” Geiger v. Tower Auto., 579 F.3d 614,
620 (6th Cir. 2009) (quoting 29 U.S.C. § 623(a)(1)). Where, as here, Plaintiff provides no direct

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evidence of discrimination, the Court utilizes the familiar burden shifting approach set forth
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) for circumstantial evidence cases. Talley
v. Family Dollar Stores, 542 F.3d 1099, 1105 (6th Cir. 2008).
To establish a prima facie case of age discrimination under the indirect method of proof, a
plaintiff must show that she was (1) 40 or older at the time of the alleged discrimination; (2)
subjected to an adverse employment action; (3) otherwise qualified for the position; and (4)
replaced by a younger worker, or that similarly situated employees were treated more favorably.
Tuttle v. Metro. Gov’t of Nashville, 474 F.3d 307, 317 (6th Cir. 2007); Coomer v. Bethesda Hosp.,
Inc., 370 F.3d 499, 511 (6th Cir.2004). If the initial burden is met, the burden of production shifts
to the employer to “articulate some legitimate, nondiscriminatory reason” for the adverse action and,
if it does so, the burden shifts back to the [plaintiff] to show that the proffered reason is a mere
pretext masking the company’s discriminatory actions.” Bender v. Hecht’s Dep’t Stores, 455 F.3d
612, 624 (6th Cir. 2006). Although the burden of production shifts “the ultimate burden of persuading
the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times
with the plaintiff.” DiCarlo v. Potter, 358 F.3d 408, 415 (6th Cir. 2004) (internal citation omitted).

In any employment case, “[t]he key question is always whether, under the particular facts
and context of the case at hand, the plaintiff has presented sufficient evidence that he or she suffered
an adverse employment action under circumstances which give rise to an inference of unlawful
discrimination.” Clay v. United Parcel Serv., Inc., 501 F.3d 695, 703 (6th Cir. 2007)) (citation
omitted). Plaintiff has not done so in this case, particularly given the admissions she has made.
In both her deposition and her response to Defendant’s “Concise Statement of Undisputed
Material Facts,” Plaintiff concedes that she violated the Medication Administration policy on

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multiple days and violated the Controlled Substance policy through failure to record waste properly.
She also acknowledges that failing to document the administration of Morphine is “more than a
minor infraction,” and that, given her multiple policy violations, some form of discipline was
appropriate. Moreover, Plaintiff does not believe that either Ms. Jones or the panel acted improperly
or unfairly; she simply disagrees with the termination decision.
Given Plaintiff’s admissions, the only real question is whether the stated reasons proffered
by Vanderbilt are but a pretext for discrimination. “A plaintiff will usually demonstrate pretext by
showing that the employer's stated reason for the adverse employment action either (1) has no basis
in fact, (2) was not the actual reason, or (3) is insufficient to explain the employer’s action.” White
v. Baxter Healthcare Corp., 533 F.3d 381, 391 (6th Cir. 2008). “However, the plaintiff may also
demonstrate pretext by offering evidence which challenges the reasonableness of the employer’s
decision ‘to the extent that such an inquiry sheds light on whether the employer's proffered reason
for the employment action was its actual motivation.’” Id. (citation omitted).
In this case, Plaintiff attempts to establish pretext in three ways. Plaintiff first asserts that
she “suffered termination, where other, similarly situated employees did not for the same
infraction[.]” (Docket No. 34 at 13). More specifically, she argues that “there are several people
who could have put the order into the Acudose machine beginning with the ordering physician who
was the most capable of doing so,” and that Ms. Campbell “admitted that there have been other
instances of nurses failing to properly document medication administration or the retrieval of
medication from the AcuDose machine without being subject to termination.” (Id. at 8).
The Sixth Circuit has “held that ‘to be deemed similarly-situated, the individuals with whom
the plaintiff seeks to compare his/her treatment must have dealt with the same supervisor, have been

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subject to the same standards and have engaged in the same conduct without such differentiating or
mitigating circumstances that would distinguish their conduct or the employer’s treatment of them
for it.’” McMillan v. Castro, 405 F.3d 405, 413 (6th Cir. 2005) (quoting Mitchell v. Toledo Hosp.,
964 F.2d 577, 583 (6th Cir. 1992)). While “‘plaintiff need not demonstrate an exact correlation with
the employee receiving more favorable treatment in order for the two to be considered
similarly-situated, . . . the plaintiff and the employee with whom the plaintiff seeks to compare
himself or herself must be similar in all of the relevant aspects.’” Id. (quoting Ercegovich v.
Goodyear Tire & Rubber Co., 154 F.3d 344, 352 (6th Cir. 1998)).
Simply asserting that “other people” could have put the order into the Acudose machine falls
far short of establishing that those “people” (whoever they may be) were similarly situated to
Plaintiff. Further, Plaintiff has failed to cite any evidence that she was similar in all relevant
respects to the resident who she claims was likewise culpable.
As for other nurses, Plaintiff relies exclusively on the following excerpt from Ms.
Campbell’s deposition:
Q. Were you aware of any instances of nurses creating discrepancies using the
AcuDose machine and not being terminated?
A. Yes. Simply creating a discrepancy -- well, what do you mean not (sic) using the
AcuDose machine?
Q. Sorry. I meant to say using the AcuDose machine and creating a discrepancy.
A. And not being terminated?
Q. Yes.
A. Yes.
Q. But how often does that happen?

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A. It doesn't happen very often. I can't tell you exactly how often that happens.
Q. Do you recall any specific examples?
A. No.
(Docket No. 38-8, Campbell Depo. at 28-29). That excerpt hardly shows that other nurses found
themselves in the same predicament as Plaintiff yet received a lesser sanction.
Plaintiff was not terminated simply because she created a discrepancy. She was terminated
because she also failed to document the administration of medicine, failed to chart properly, failed
to document a physician’s verbal orders, and failed to document the waste of medicine. She
identifies no one who engaged in anywhere near similar conduct.
Plaintiff next argues that she “was not afforded use of Defendant’s discipline process or
meaningful use of Defendant’s appeal process[.]” (Docket No.34 at 13). With regard to the former,
she argues that VUMC has a four-step disciplinary process that begins with a verbal warning, but,
“rather than being given an opportunity to improve her behavior, which is the point of a progressive
discipline policy,” she was terminated. This argument totally ignores the fact that (1) the policy
itself “allows for discipline to start at a higher step based on the severity and circumstances of the
situation,” (Docket No. 34-5 at 1); and, (2) in response to Defendants Statement of Undisputed
Material Facts, Plaintiff concedes that both Ms. Campbell and Ms. Downs believed that her errors
constituted a “serious violation so nursing protocol” and “created safety issues for patient.” (Docket
No. 33 at14, ¶ 45). “‘[A]s long as the employer honestly believed in the proffered reason given for
its employment action, the employee cannot establish pretext even if the employer’s reason is
ultimately found to be mistaken, foolish, trivial, or baseless.” Banks v. Bosch Rexroth Corp., 610
Fed. App’x 519, 533 (6th Cir. 2015) (quoting Smith v. Chrysler Corp., 155 F.3d 799, 806 (6th

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Cir.1998)).
With regard to her complaint about the appeals process, Plaintiff focuses only on the first
step. She argues that because the HR representative who met with her and Ms. Campbell had no
authority to reverse the termination, the “mediation . . . had no purpose.” (Docket No. 34 at 11).
That argument ignores the fact, however, that the termination decision was later upheld not only by
Ms. Jones, but also by an appeals panel, and Plaintiff presents nothing to suggest that the decision
to terminate her could not have been reversed during the second or third stage of the appeals process.
Nor does Plaintiff claim any bias on behalf of the individuals involved in the last two steps in the
process.
Finally, Plaintiff attempts to show pretext by arguing that “there are indications that almost
half the people responsible for the decision were not in favor of her termination[.]” (Id. at 13).
Leaving aside the obvious point that Plaintiff’s own calculations suggest that the majority favored
termination (even if, as Plaintiff argues, the Code N Committee “entertained several ideas regarding
possible disciplinary methods, such as demotion, final written warning, and possibly termination”),
her math does not add up.
Plaintiff argues that “two of the five people allegedly responsible for the decision to
terminate [her] stated that they were not in favor of such,” (id. at 10), and in support references an
email from Ms. Bryant and one from Ms. White. In her email, Ms. Bryant suggested that Plaintiff
might need to be placed on a “watch list,” and, in a subsequent email Ms. White wrote, “[a]gree on
all counts.” (Id.). However, according to Defendant’s Statement of Facts, which Plaintiff does not
dispute, Ms. Bryant was not among the group of senior leaders who participated in the conference
call which led to the decision to terminate Plaintiff’s employment. Moreover, given the different

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subject lines, it is not clear that Ms. White’s “agree on all counts” email was in response to Ms.
Bryant’s email about placing Plaintiff on a watch list.6
III. Conclusion
“To establish a disparate-treatment claim under the plain language of the ADEA . . . a
plaintiff must prove that age was the ‘but-for’ cause of the employer's adverse decision.” Gross v.
FBL Fin. Servs., Inc., 557 U.S. 167, 176 (2009).

“For an employer to take an adverse action

‘because of age’ means ‘that age was the reason’ that the employer decided to act.” Scheick v.
Tecumseh Pub. Sch., 766 F.3d 523, 529 (6th Cir. 2014) (quoting Univ. of Tex. Sw. Med. Ctr. v.
Nassar, ––– U.S. ––––, 133 S.Ct. 2517, 2527 (2013). Plaintiff has failed to produce evidence from
which a reasonable jury could conclude that, but for her age, she would have not been terminated,
particularly giver her concession that she failed to follow proper protocol and the policies of her
employer. Accordingly, an Order will be entered grant summary judgment to Defendant.

____________________________________
KEVIN H. SHARP
UNITED STATES DISTRICT JUDGE

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Plaintiff also relies on two emails from Ms. Campbell which purportedly “belie disdain” for
Plaintiff. Those innocuous emails do no such thing. In one, Ms. Campbell merely writes that she “spoke
w/[Plaintiff] (she called my cell just now and I didn’t recognize the number).” It takes a leap, from that
statement, to conclude that Ms. Campbell was attempting to avoid Plaintiff. In the other, Ms. Campbell asks
Dr. Spetalnick to “provide a statement about what he witnessed . . . that none of the 3 incidents was an
‘emergency’ situation.” Again, it requires a leap to conclude from that request that Ms. Campbell somehow
had the power to control how Dr. Spetalnick would respond.
Regardless, whether or not Ms. Campbell was biased against Plaintiff is not the issue. The issue is
whether any alleged bias was based on Plaintiff’s age. See, Rowan v. Lockheed Martin Energy Sys., Inc.,
360 F.3d 544, 547 (6th Cir. 2004) (plaintiff “must establish that the legitimate reasons offered by the
defendant were just a pretext for decisions actually motivated by an unlawful bias against age”); Bender, 455
F.3d at 620 (same).

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