Wheeler v. Georgetown University Hospital , 52 F. Supp. 3d 40 ( 2014 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
PATRICIA WHEELER,
Plaintiff,
v. Civil Action No. 10-1441 (JEB)
GEORGETOWN UNIVERSITY
HOSPITAL,
Defendant.
MEMORANDUM OPINION
On December 28, 2009, a troop of nurses paraded through Clinical Manager Angela
Hollandsworth’s office at Georgetown University Hospital. Each nurse echoed a similar
complaint. The first reported that another nurse, Plaintiff Patricia Wheeler, had delivered
unnecessary medication to a patient, while neglecting to give that same patient prescribed doses
of insulin. The next nurse noted that Wheeler had not properly recorded patient vitals during the
previous day’s shift. The third advised that Wheeler had left yet another patient, who could not
voluntarily move, soaked in her own saliva and lying in her own excrement. The fourth nurse
contended that Wheeler had left still another patient sitting in a blood-stained gown, that she had
let the patient’s antibiotic bag run out, and that this other patient had also sat caked in dried stool
for an indeterminate period of time. After considering these allegations and speaking with Nurse
Wheeler, Hollandsworth decided that she had to be terminated. Hardly a shocking personnel
move.
Wheeler, who is black, brought this suit claiming that Hollandsworth’s decision was
based on racial animus. Instead, the evidence shows that her verdict was premised on an honest
and reasonable belief in the veracity of the other nurses’ reports. As a result, the Court will grant
Defendant Georgetown University Hospital’s Motion for Summary Judgment and dismiss the
case.
I. Factual and Procedural Background
Viewing the evidence in the light most favorable to Plaintiff, the Court finds that from
March 2006 until January 2010, Georgetown University Hospital employed Wheeler as a
registered nurse in a department known as “4 East.” Mot., Exh. 1 (Affidavit of Angela K.
Hollandsworth), ¶ 2. As a nurse, Wheeler’s responsibilities included “providing direct patient
care,” which involved tasks such as delivering medication and assessing patient needs, as well as
“communicating information” about the patient and her care to “the appropriate medical team,
patient[,] and family.” Id., ¶ 7. The hospital, of course, has myriad rules and policies prescribing
both how nurses are to treat patients and how they must share treatment information with doctors
and families alike. See id.; see also Mot., Attach. E (GUH Policy 110: Reconciliation,
Administering and Charting of Medication); Attach. F (GUH Policy 124: Intravenous Therapy in
the Adult); Attach. G (GUH Policy 404: Medical Record Documentation); Attach. H (GUH
Policy 414: System Down Time).
Beginning in March 2007, Wheeler was supervised by Hollandsworth. See
Hollandsworth Aff., ¶¶ 3-4. According to Plaintiff, she and Hollandsworth were often at odds.
Wheeler observed that “once Angela became [her] manager[,] she would pull [her] in the office
frequently about any and every little thing, about performance.” Opp., Exh. 1 (Deposition of
Patricia Wheeler) at 84:8-11. On at least two occasions prior to December 27, 2009,
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Hollandsworth gave Wheeler formal warnings regarding her work performance. In December
2008, for example, Hollandsworth admonished Plaintiff after she had allegedly withheld a dose
of medication without noting it on a patient’s chart, failed to change a patient’s IV dressing, and
failed to print out and interpret certain patient vitals during her shift. See Mot., Attach. Q
(Verbal Warning Letter, December 23, 2008) at 1. In April 2009, Wheeler also received a
warning for missing work on three occasions. See Mot., Attach. R (Verbal Warning Letter, April
23, 2009) at 1. Similar absences were noted in her yearly reviews. See Opp., Exh. 11 (2008-09
Performance Evaluation) at 2; Exh. 12 (2007-08 Performance Evaluation) at 2. Hollandsworth
and her predecessor also wrote informal notes about other sundry performance shortcomings, see
Mot., Attach. K-P (Notes on Performance Shortcomings), although Plaintiff claims that no other
incidents were ever discussed with her and that, as a result, they probably never happened. See,
e.g., Wheeler Depo. at 110:1-22, 118:7-22. Given Plaintiff’s sworn testimony, the Court will
assume that the only relevant, pre-existing disciplinary incidents are the two formal warnings
found in her personnel file that Wheeler herself countersigned.
Despite these low-level reprimands, Wheeler’s woes truly snowballed beginning on the
morning of December 27, 2009. Ordinarily, she worked with patients who were not in critical
condition. That day, though, Wheeler was floated to the Intensive Care Unit, which was in need
of additional nurses. See Mot., Attach. I (Wheeler E-mail of Jan. 1, 2010) at 1. In the ICU,
Wheeler was in charge of three patients, whose vitals were to be taken every four hours. See id.
at 1. Her shift ran from 7 a.m. to 7 p.m. Id. Over the course of a single day, no fewer than four
other nurses expressed concern regarding Wheeler’s treatment of those same three patients.
The first complaint that Hollandsworth received came from Nurse Amy Kelliher. See
Hollandsworth Aff., ¶ 8; Mot., Attach. A (Statement of Amy Kelliher) at 1. Kelliher wandered
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into the room of one of Wheeler’s patients when she heard the patient’s IV beeping, meaning
that it needed to be refilled. See Hollandsworth Aff., ¶ 8. The empty bags attached to the
patient’s IV had contained Nexium and magnesium. Id. When Kelliher asked Wheeler about the
patient, Plaintiff stated that the IV should have been delivering normal saline, not medication.
Id. In addition to discovering the wrong IV hooked up, Kelliher also found that Wheeler had
neglected to give the patient two doses of sliding-scale insulin. Id. And, as hospital policies
explain, errors in delivering insulin can have particularly severe consequences. See GUH Policy
110 at 8 (listing insulin as a “High Alert” and/or “Hazardous Medication”).
That same day, Nurse Ruth Burke also raised concerns about Wheeler’s treatment of
patients. See Hollandsworth Aff., ¶ 9; Mot., Attach. B (Statement of Ruth M. Burke) at 1.
Burke claimed that Wheeler had neglected to record vital signs for at least two of her three
patients, failed to monitor a patient’s temperature, and improperly set a blood-pressure cuff on a
patient. See Hollandsworth Aff., ¶ 9. Nurse Kelliher confirmed that Wheeler had not logged
vital signs for her patients. Id. This, too, violated hospital policy. See, e.g., GUH Policy 404;
GUH Policy 414.
In addition, yet another nurse, Linda Ames-Sommersville, consulted Hollandsworth
about one of Wheeler’s patients. See Hollandsworth Aff., ¶ 10; Mot., Attach. C (Statement of
Linda Ames-Sommerville) at 1. That patient could not make any voluntary movement. See
Ames-Sommerville Statement at 1. When the family arrived in the morning around 10 a.m.,
Ames-Sommerville reported, their daughter was slouched against the rails of her bed in an
uncomfortable position. Id. Her gown and sheets were soaked through with saliva, so the family
had to call for help to get her cleaned up. Id. Although the family stayed with her for five hours,
Nurse Wheeler reportedly never came back to check on the patient. Id. When the family left and
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returned after dinner, the patient was again slumped against the rail and was caked in dry stool.
Id.
Finally, Nurse Brittany Buchanan also alerted Hollandsworth to problems with Wheeler’s
third patient. See Hollandsworth Aff., ¶ 11; Mot., Attach. D (Statement of Brittany M.
Buchanan) at 1. Around 2 p.m., Buchanan noticed that the patient had experienced a bowel
movement and that there was blood on the patient’s gown. See Statement of Brittany M.
Buchanan at 1. She offered to help Wheeler clean up the mess, but, evidently, Wheeler declined.
Id. A technician summoned Buchanan to the room again around 6 p.m. because the patient’s
gown still had blood on it. Id. The nurse discovered that the patient remained covered in dried
stool, so she assisted – finally – in getting the patient cleaned up. Id. Buchanan also noticed that
an empty antibiotic bag was piggybacked onto the patient’s heparin IV drip and had not been
refilled or removed. Id.
Worried about the impact that this level of care could have on patients, Hollandsworth
suspended Wheeler while she investigated the day’s incidents. See Hollandsworth Aff., ¶ 13.
Hollandsworth interviewed each of the nurses who had reported concerns with Wheeler’s
patients and put those complaints in writing. See id., ¶ 14. She met with Wheeler herself to
discuss the incidents and asked her to provide a written explanation of the day’s events, which
Plaintiff did. See id., ¶ 15. After taking all the information into account, Hollandsworth and
Michelle Lawyer in the hospital’s Human Resources Department determined that Wheeler’s
missteps warranted termination. See id., ¶ 16. Although, according to Defendant, Wheeler’s
conduct on December 27th alone constituted a fireable offense, her history of performance issues
also affected Hollandsworth’s decision. See id., ¶ 17.
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On January 8, 2010, Hollandsworth and her supervisor, Sue Howell, met with Wheeler to
inform her of the decision to terminate her based on the events of December 27th. See id., ¶ 20.
Wheeler, understandably, was upset by her suspension and ultimate termination. According to
her, the other nurses’ negative reports were based on a series of misunderstandings. For
example, she claims that the patient who missed his insulin doses did not need the insulin
because his blood sugar was just fine. See Jan. 1 E-mail at 2. She also contends that she took
him off of the Nexium as ordered, but forgot to throw away the empty IV bag – although it is
unclear what the magnesium was doing on his IV. See Mot., Attach. J (Wheeler E-mail of Jan.
6, 2010) at 1. In addition, she seems to blame the documentation mishaps on computer errors of
some sort that were, apparently, common in the hospital. See Jan. 1 E-mail at 2-3. In terms of
the patient who could not move, Wheeler claims that she suctioned her saliva around 8 a.m. and
that a technician from the respiratory department did the same thing around 9:20 a.m. See id. at
1. It is thus unclear how the patient ended up being soaked in her own excretions. She also
remembers bathing and turning the patient every two hours, so she thinks the bowel movement
must have happened after her shift ended. Id. at 2. In terms of Wheeler’s third and final patient,
she asserts that no one told her that the patient was covered in blood and stool as of 2 p.m. Id.
She also notes that she was prepared to clean up the patient at 6 p.m., but that she left the room
for 15 minutes while another employee prepped him, and Nurse Buchanan ended up swooping in
during that interval and doing the job for her. Id.
Plaintiff contends that she was fired not based on the reports of the other nurses; rather,
she claims that she was the victim of racial discrimination. Notably, Wheeler does not argue that
the other four nurses harbored discriminatory animus, nor does she contest the fact that those
nurses actually aired their concerns to Hollandsworth. Instead, she avers that white nurses have
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engaged in comparably bad behavior and have not been fired or even reprimanded. A nurse
called C.S., for example, discontinued a medication without noting it on the patient’s chart, and
she was not written up or fired. 1 See Wheeler Depo. at 52:7-55:21. Nurse K.M. neglected to
report a change in her patient’s mental status, and the patient ended up foaming at the mouth and
being transferred to the ICU. See id. at 65:3-68:22. In addition, Nurse W.L. once calculated an
incorrect dosage of heparin, which is a medication that keeps blood from clotting. The patient
then crashed and had to be transported to the ICU. See id. at 216:7-221:15. Nurse A.A. also
allegedly erred by failing to equip a patient with a bite block, which resulted in the patient’s
biting through her tongue and bleeding profusely. See id. at 249:17-250:22. Wheeler claims that
all of these nurses were white, none was suspended, and none was fired.
Finally, another two nurses’ actions actually resulted in a patient’s death, and they were
not fired either. See id. at 221:17-226:3. More specifically, Nurses B.D. and C.R. also
calculated an incorrect dosage of heparin, which caused their patient to experience
complications, crash, and later die. See Opp., Exh. 5 (Pl. Answer to Interrogatories) at 3. The
two nurses were suspended, but eventually returned to work. Id. Hollandsworth, as far as the
evidence indicates, was not their supervisor. Id.
Feeling she had been mistreated, Wheeler filed a complaint with the EEOC on January 7,
2010 – before she was fired – and filed formal charges with the EEOC and D.C. Office of
Human Rights on January 21st. See Mot., Exh. 4 (EEOC Intake Questionnaire) at 1-4; Mot.,
Exh. 6 (Charge of Discrimination) at 1. This litigation followed. Wheeler originally complained
of racial discrimination, retaliation, termination in violation of public policy, and breach of
1
Given that these nurses did not have an opportunity to defend their conduct on the record, and given that
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contract. The latter two counts were dismissed by this Court in 2011, see Wheeler v.
Georgetown University Hosp. (Wheeler I), 788 F. Supp. 2d 1 (D.D.C. 2011), and Plaintiff now
concedes that the retaliation charge should be dropped. See Opp. at 6. As a result, the sole issue
for determination at summary judgment is Wheeler’s allegation that she was fired on account of
racial discrimination in violation of Title VII.
II. Legal Standard
Summary judgment may be granted 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); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986); Holcomb v.
Powell, 433 F.3d 889, 895 (D.C. Cir. 2006). A fact is “material” if it is capable of affecting the
substantive outcome of the litigation. See Liberty Lobby, 477 U.S. at 248; Holcomb, 433 F.3d at
895. A dispute is “genuine” if the evidence is such that a reasonable jury could return a verdict
for the nonmoving party. See Scott v. Harris, 550 U.S. 372, 380 (2007); Liberty Lobby, 477
U.S. at 248; Holcomb, 433 F.3d at 895. “A party asserting that a fact cannot be or is genuinely
disputed must support the assertion” by “citing to particular parts of materials in the record” or
“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).
When a motion for summary judgment is under consideration, “[t]he evidence of the non-
movant is to be believed, and all justifiable inferences are to be drawn in [her] favor.” Liberty
the Court does not independently assess the truth of parties’ assertions on summary judgment, it uses the nurses’
initials to protect their privacy.
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Lobby, 477 U.S. at 255; see also Mastro v. PEPCO, 447 F.3d 843, 850 (D.C. Cir. 2006); Aka v.
Wash. Hosp. Ctr., 156 F.3d 1284, 1288 (D.C. Cir. 1998) (en banc). On a motion for summary
judgment, the Court must “eschew making credibility determinations or weighing the evidence.”
Czekalski v. Peters, 475 F.3d 360, 363 (D.C. Cir. 2007).
The nonmoving party’s opposition, however, must consist of more than mere
unsupported allegations or denials and must be supported by affidavits, declarations, or other
competent evidence, setting forth specific facts showing that there is a genuine issue for trial.
See Fed. R. Civ. P. 56(e); Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). The nonmovant is
required to provide evidence that would permit a reasonable jury to find in its favor. See
Laningham v. Navy, 813 F.2d 1236, 1242 (D.C. Cir. 1987).
In light of this requirement, and pursuant to Local Civil Rule 7(h) and Federal Rule 56(c),
the Court, in resolving summary-judgment motions, “assume[s] that facts identified by the
moving party in the statement of material facts are admitted, unless such a fact is controverted in
the statement of genuine issues filed in opposition to the motion.” LCvR 7(h)(1).
Georgetown argues that Wheeler has failed to comply with this requirement, as her
Statement of Material Facts in Dispute and Response to Defendant’s Statement of Undisputed
Facts are inadequate. For the most part, however, Wheeler does a fine job citing to the record
and pointing to specific facts that she believes are in controversy. She does occasionally treat
legal conclusion as facts, such as the “fact” that “Ms. Wheeler was terminated and suspended
because of her race.” See Pl. Statement of Material Facts, ¶ 31. But of course, the Court need
not treat those legal conclusions as true. To the extent that Plaintiff’s documents contain vague
or broad statements unsupported by record evidence, the Court need not accept those assertions
as true either. See Valles-Hall v. Ctr. for Nonprofit Advancement, 481 F. Supp. 2d 118, 123-24
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(D.D.C. 2007); see also Fed. R. Civ. P. 56(e); Celotex Corp., 477 U.S. at 324. Plaintiff’s
response to Georgetown’s factual proffer is ultimately not so convoluted that the Court need treat
the hospital’s version of the facts as conceded. The Court, accordingly, will accept Wheeler’s
facts as true only to the extent that they are supported by citations to the record; Georgetown’s
version will stand where Plaintiff offers no specific opposition.
III. Analysis
Title VII makes it “an unlawful employment practice . . . to discharge any individual, or
otherwise to discriminate against any individual . . . because of such individual’s race, color,
religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1). Because Wheeler was concededly
“discharge[d],” the sole inquiry here is whether she was terminated “because of” her race. Id.
Title VII claims of race discrimination ordinarily proceed in three steps. See McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 802-05 (1973); Kersey v. Washington Metr. Transit
Auth., 586 F.3d 13, 16-17 (D.C. Cir. 2009). First, the plaintiff carries the initial burden of
establishing a prima facie case of racial discrimination. See Texas Dept. of Cmty. Affairs v.
Burdine, 450 U.S. 248, 252-53 (1981); Kersey, 586 F.3d at 17. To pass that hurdle, a plaintiff
need only show that “(1) she is a member of a protected class; (2) she suffered an adverse
employment action; and (3) the unfavorable action gives rise to an inference of discrimination.”
Czekalski v. Peters, 475 F.3d 360, 364 (D.C. Cir. 2007) (quoting George v. Leavitt, 407 F.3d
405, 412 (D.C. Cir. 2005)). Next, the defendant typically rebuts that prima facie showing with
evidence of “a legitimate, nondiscriminatory reason” for its actions. Reeves v. Sanderson
Plumbing Prods, Inc., 530 U.S. 133, 142 (2000). Finally, if the defendant has produced such
evidence, then the plaintiff must show that “the legitimate reasons offered by the defendant were
not its true reasons, but were a pretext for discrimination.” Id. at 143 (internal quotation marks
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omitted). In other words, the plaintiff must prove “that the employer’s asserted non-
discriminatory reason was not the actual reason and that the employer intentionally discriminated
against the employee.” Brady v. Office of the Sergeant at Arms, 520 F.3d 490, 494 (D.C. Cir.
2008).
At the summary-judgment stage, however, the inquiry typically collapses into one simple
question: Given all the evidence, could a reasonable jury conclude that “the defendant
intentionally discriminated against the plaintiff”? Id. at 494 (internal quotation marks omitted).
Once an employer has offered legitimate, non-discriminatory reasons for firing the plaintiff, “the
prima facie case” becomes “a largely unnecessary sideshow.” Id. (italics added). After all, a
jury would be permitted to consider all the evidence on both sides of the scale – not only the
defendant’s explanation of the firing and whatever evidence formed the plaintiff’s prima facie
case, but also any other facts tending to demonstrate racial animus. The relevant inquiry at the
summary-judgment stage, as always, is simply whether the facts, viewed in the light most
favorable to the plaintiff, would permit a reasonable jury to find in her favor.
For Wheeler’s discrimination claim, therefore, the relevant question is whether Plaintiff
has produced enough evidence to convince a jury that Georgetown’s stated reason for firing her
– namely, allegations of patient mistreatment by no fewer than four nurses – is a mere pretext for
what was actually race discrimination. See Brady, 520 F.3d at 494.
Plaintiffs typically take one of two approaches in attempting to undermine an employer’s
stated reason for their termination. In some cases, “the employee may attempt to demonstrate
that the employer is making up or lying about the underlying facts that formed the predicate for
the employment decision.” Id. at 495. Wheeler does this by claiming that her errors on
December 27th either never happened or were easily explainable. Other times, “the employee
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attempts to” prove discrimination by showing “that the employer treated other employees of a
different race, color, religion, sex, or national origin more favorably in the same factual
circumstances.” Id. Wheeler also takes this alternative approach by claiming that white nurses
engaged in similar misconduct and were not terminated. The Court will address each of these
two theories in turn.
A. Fabricated Reasons for Termination
Wheeler first contends, to paraphrase Mark Twain, that the reports of her misconduct
were greatly exaggerated. In other words, because she did not actually engage in misconduct on
December 27th, her termination must have been a pretext for discrimination. See, e.g., Royall v.
National Ass’n of Letter Carriers, 548 F.3d 137, 145 (D.C. Cir. 2008) (may infer pretext where
“proffered reasons for terminating [plaintiff’s] employment are unpersuasive”).
An important caveat is in order here. “[P]roving that an employer’s reason” for
terminating an employee “is false will not always be sufficient to demonstrate pretext. This is so
because an employer’s action may be justified by a reasonable belief in the validity of the reason
given[,] even though that reason may turn out to be false.” George, 407 F.3d at 415 (emphasis
added). Put another way, when an employer bases her termination decision on complaints from
other employees, “[t]he question is not whether the underlying [misconduct] occurred.” Brady,
520 F.3d at 496. Instead, “the issue is whether the employer honestly and reasonably believed
that the underlying . . . incident occurred.” Id.
For purposes of this Motion, the Court must, of course, treat all of Wheeler’s record
evidence as true, which includes her own sworn testimony. The Court thus must accept that the
complaints of patient mistreatment were either based on mistakes or failed to put Plaintiff’s
actions in context. Wheeler appears to concede, however, that the other nurses at least made
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these reports to Hollandsworth, and that the allegations levied by each nurse were memorialized
in Hollandsworth’s follow-up e-mails to them.
Whether and how these incidents occurred, then, is largely beside the point. Rather, this
case turns on whether Wheeler has produced enough evidence to undermine the conclusion that
Hollandsworth honestly and reasonably believed that Plaintiff had mistreated patients.
To review the bidding: On December 28, 2009, the day after Wheeler’s alleged mishaps,
Hollandsworth first received a report from Nurse Kelliher. She was concerned because Nurse
Wheeler appeared to have administered the wrong medication to a patient and had also failed to
give that patient his insulin doses. See Hollandsworth Aff., ¶ 8. She also confirmed a report
from Nurse Burke – a second, independent nurse – that Wheeler had not been logging patient
vitals as required. See id., ¶ 9. Then a third nurse, Ames-Sommerville, raised concerns about
another of Wheeler’s patients, who had ended up soaked in her own saliva and caked in
excrement. See id., ¶ 10. Finally, yet another nurse, Buchanan, reported that Wheeler had left a
patient in a bloody gown, failed to properly administer that patient’s antibiotic drip, and also left
that patient covered in dried stool. See id., ¶ 11.
Now, of course, Wheeler proffered her own explanation for each of these incidents. See
Jan. 1 E-mail at 1-3. But the question here is not whether her explanation was ultimately the
correct one. The Court assumes that it is. The question is simply whether a reasonable jury
could infer that Hollandsworth was discriminating against Wheeler when she credited the other
nurses’ accounts and ultimately terminated Wheeler. Again, these reports were conveyed by not
one, not two, but four separate nurses. Given the gruesome details of those reports, no
reasonable jury would likely so much as raise an eyebrow at the fact that Wheeler was fired.
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Perhaps Wheeler means to argue that Hollandsworth credited the other nurses’ accounts
over hers due to discrimination, or that the investigation was somehow less thorough because
Hollandsworth was inclined to doubt Wheeler’s competence anyway. In terms of
Hollandsworth’s decision to credit the other nurses over Wheeler, the Court finds no evidence of
animus in that determination. Every day, employers “must decide disputes based on credibility
assessments, circumstantial evidence, and incomplete information.” Brady, 520 F.3d at 496.
Unless there is some reason to believe that Hollandsworth’s resolution of this factual dispute was
not made honestly and in good faith, her decision cannot be questioned. Id. Here, the Court
finds nothing to undermine Hollandsworth’s faith in the nurses’ reports. Even Wheeler does not
appear to question that those reports themselves were made in good faith; nor does she appear to
contend that the nurses (as opposed to Hollandsworth) were acting with animus. It is thus
implausible to claim that Hollandsworth’s action in crediting those accounts was motivated by
race.
In terms of the investigation, moreover, nothing in the record indicates that
Hollandsworth’s inquiry was anything other than thorough – or that she deviated in any way
from the standard procedure. On December 29, 2009, she issued a suspension letter to Wheeler
so that she could investigate “allegations of patient neglect, failure to administer medications in
accordance with hospital policy, failure to provide basic care needs to [her] patients, and failure
to document in accordance with hospital standards.” Mot., Exh. 2 (Suspension Letter);
Hollandsworth Aff., ¶ 13. Hollandsworth then interviewed Nurses Kelliher, Ames-Sommerville,
Burke, and Buchanan, and confirmed their accounts in writing. See Hollandsworth Aff., ¶ 14.
She next met with Plaintiff on December 30, 2009, discussed the incidents, and asked for – and
subsequently received – written explanations from Plaintiff. Id., ¶ 15. After examining all of
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that information, Hollandsworth discussed her tentative decision to terminate Wheeler with HR
and was given the green light. Id., ¶ 16. Plaintiff does not allege that anything about this by-the-
book process was unusual or was manipulated to discriminate against her – although she does
wish that Hollandsworth had talked to some additional co-workers. But in this case, as always,
the Court “may not second-guess an employer’s personnel decision absent demonstrably
discriminatory motive.” Fischbach v. D.C. Dep’t of Corrections, 86 F.3d 1180, 1183 (D.C. Cir.
1996). Here, the Court can find no evidence that would lead a reasonable jury to question the
good faith of Hollandsworth’s determination or efforts.
B. Comparator Evidence
Facing a stiff headwind on the argument that her reported dereliction of duty should not
have led to termination, Wheeler trims her sails and tries another tack. Still seeking to prove that
Hollandsworth’s decision was in fact a pretext for discrimination, Plaintiff contends that other,
white nurses engaged in similar misconduct, yet they were not fired for their behavior. See 1
Lex K. Larson, Employment Discrimination § 8.04, at 8-66 (2d ed. 2007) (“Probably the most
commonly employed method of demonstrating that an employer’s explanation is pretextual is to
show that similarly situated persons of a different race or sex received more favorable
treatment.”), quoted in Brady, 520 F.3d at 495.
As evidence, Plaintiff recites the alleged actions of five other nurses. Nurse C.S., like
Nurse Wheeler, discontinued medication without noting it on the patient’s chart – yet she was
not written up or fired. See Wheeler Depo. at 52:7-55:21. Nurse K.M. once failed to report a
change in her patient’s mental status, and the patient ended up foaming at the mouth and being
transferred to the ICU – while none of Nurse Wheeler’s patients suffered any such harm. See id.
at 65:3-68:22. Nurse W.L. similarly caused a patient harm by calculating an incorrect dosage of
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heparin. See id. at 216:7-221:15. In addition, Nurse A.A. neglected to equip a patient with a bite
block, which resulted in profuse bleeding. See id. at 249:17-250:22. Wheeler claims that all of
these nurses were white and none was fired for her misconduct.
Comparing Wheeler’s missteps with the actions of these other nurses, however, is like
comparing an acorn to an oak tree. Each of the white nurses committed one error that affected
one patient; Wheeler committed at least four, concerning three separate patients, all on the same
day. The other nurses, as a result, are not useful comparators. See Royall, 548 F.3d at 145
(plaintiff must show “that all of the relevant aspects of [her] employment were nearly identical to
those of” comparator) (internal quotation marks omitted); Wilson v. Lahood, 815 F. Supp. 2d
333, 338 (D.D.C. 2011) (“The identified employee must have dealt with the same supervisor,
have been 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.”) (internal quotation marks omitted). The fact that one nurse
would be fired for four incidents involving three patients in one day, while another nurse would
escape punishment for one incident affecting one patient on one day is not “the least bit fishy.”
Fischbach, 86 F.3d at 1184. To be sure, the other nurses’ patients suffered harm in some cases,
but Wheeler’s patients may also have been in danger of harm based on a missed dose of insulin
or antibiotics. It would be impossible for a jury to find that one scenario could be measured
against the other.
In addition, Wheeler argues that two other nurses’ actions resulted in a patient’s death
and that they were not fired, although they were at least suspended. See Wheeler Depo. at
221:17-226:3. This, she claims, is surely worse than her actions on December 27th. The death
of a patient must be an incident of grave concern to any hospital. But again, it is not the Court’s
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place to step in and decree that four fairly bad incidents on one day do not deserve more serious
punishment than one terrible incident. In addition, it does not appear from Plaintiff’s evidence
that Hollandsworth even supervised the nurses whose patient died. Id. If she had, perhaps they,
too, would have been fired. There is simply no way to know. See Lahood, 815 F. Supp. 2d at
338 (“The identified employee must have dealt with the same supervisor” to be adequate
comparator.) In any event, the fact that some other supervisor failed to fire two nurses who
miscalculated a dose of heparin with very bad results does not raise an inference that
Hollandsworth discriminated when she fired Wheeler for making several missteps with non-fatal
results.
In addition, Wheeler does not present much evidence regarding the performance history
of the white nurses to whom she would compare herself. That also makes meaningful
comparison difficult. See Royall, 548 F.3d at 145; but see Hollandsworth Depo. at 73:3-80:13.
As Hollandsworth admits, although Wheeler was fired for her conduct on one December day, her
poor performance history also played a role in the ultimate decision to terminate her. See
Hollandsworth Aff., ¶ 17. Wheeler claims that she generally performed up to expectations, so
we must accept that contention as true. She also, however, had two verbal warnings on file; her
annual reviews noted some problems with attendance; and Hollandsworth claims that Plaintiff’s
prior supervisor passed on some performance concerns as well. Id. So there were some
performance issues on record, even if those incidents, too, were understandable or easy to
explain away. And there is nothing untoward about a supervisor taking an employee’s record
into account when deciding what disciplinary measure to take. This also might have influenced
Hollandsworth’s decision to fire Wheeler when other nurses’ errors did not result in termination.
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Finally, Wheeler contends that, prior to the incidents that led to her firing, Hollandsworth
“would pull [her] in the office frequently about any and every little thing, about performance”
and was generally tough on her, likely because of her race. Wheeler Depo. at 84:8-11. Wheeler
claims that this harsh treatment, which white nurses were not subjected to, sheds light on
Hollandsworth’s true motives. But Wheeler’s evidence shows, at best, that there were some
occasions when white nurses were not formally disciplined for small infractions on par with
Wheeler’s prior performance issues – i.e., issues that lead to counseling or a verbal warning.
See, e.g, Wheeler Depo. at 94:3-108:15. In her deposition, however, Hollandsworth recalled
other times that those same nurses or other white nurses were spoken to or given verbal
warnings, just like Wheeler. See Hollandsworth Depo. at 73:11-80:13. All this shows, then, is
some inconsistency in Hollandsworth’s day-to-day disciplinary process – not intentional
discrimination sufficient to call Wheeler’s firing into question.
At the end of the day, were the Court to buy Wheeler’s comparator theory, employers in
sensitive fields like medicine – where even small mistakes by nurses may have an adverse effect
on patients – would have to fire either everyone or no one. This comports with neither common
sense nor what the law requires. Context, after all, matters. And antidiscrimination law allows
employers to take context into account. So if an employee with a spotless record makes one
awful mistake, and an employee with a spotty record makes four very bad ones, the employer –
who is, of course, in the best position to judge her employees’ performance – can make the final
call. She is not required, in the name of equity, to fire either both or no one at all.
IV. Conclusion
Overall, then, there is simply no reason to question Hollandsworth’s good faith in
determining that Wheeler deserved to be terminated based on the reports she received on
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December 28, 2009. For the foregoing reasons, the Court concludes that Georgetown is entitled
to summary judgment. The Court will therefore grant Defendant’s Motion. A separate Order
consistent with this Opinion will be issued this day.
/s/ James E. Boasberg
JAMES E. BOASBERG
United States District Judge
Date: June 27, 2014
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