United States District Court, D. Arizona
Honorable G. Murray Snow, United States District Judge.
Pending before the Court is Defendants’ St. Luke’s Medical Center LP, IASIS Healthcare Holdings, Inc., and IASIS Healthcare Corporation’s Motion for Summary Judgment (collectively “SLMC”) (Doc. 72). For the following reasons the Court grants the motion.
Plaintiff Ndapewa Deborah Shaninga (“Shaninga”) is black and is from South Africa. Plaintiff’s Statement of Facts (“PSOF”) ¶ 80. Shaninga holds a bachelor’s degree in nursing as well as an MBA. PSOF ¶ 81.
On February 11, 2013, SLMC’s Director of Education Mona Smith (“Smith”) and Administrator of Cardiovascular Services Stuart Scherger (“Scherger”) hired Shaninga as an RN in the telemetry department. DSOF ¶ 8. Over the ten months Shaninga worked at SLMC, she engaged in at least 237 hours of orientation and training. DSOF ¶ 24. Shaninga contends, however, that other comparable non-black nurses received more orientation and training over the same time-period. PSOF ¶ 24, Ex. 1 ¶¶ 21-25. Also, during “Nurses Week, ” while other non-black nurses received two pairs of scrubs, Shaninga received only one. PSOF ¶ 86.
Throughout February 2013, Shaninga signed various forms and checklists acknowledging her competency in certain critical nursing skills and behaviors. DSOF ¶¶ 25-30. Shaninga and her preceptor Tammy Ericson also completed forms assessing Shaninga’s competency in “Initial Patient Care, ” rating her “competent” and able to “perform independently” in 111 different skills and abilities. DSOF ¶ 31. Ericson also independently completed an “Ongoing Competency Assessment & Evaluation” form in which she rated Shaninga “superior” or “satisfactory” in all measured areas. DSOF ¶ 33; Doc. 72, Ex. 1 at 299:21-300:15.
Not long after starting at SLMC, Shaninga testified that a non-black secretary in the telemetry department named “Debbie” refused to call Shaninga by the name she displayed on her SLMC badge: “Deborah.” PSOF ¶ 82, Ex. 1 ¶¶ 8-9. The secretary asked for Shaninga’s “real name” and would get upset if Shaninga responded to someone calling for “Debbie, ” although people referred to Shaninga as “Debbie” regularly. PSOF ¶ 82, Ex. 1 ¶¶ 10-11. On another occasion, a non-black surgeon at SLMC, after calling for “Deborah” regarding a patient Shaninga worked on, walked away and “refused to speak” to Shaninga after she answered his call and he responded “are YOU Deborah?” PSOF ¶ 83, Ex. 1 ¶¶ 12-14. Shaninga believed her race motivated the conduct of both persons in these incidents. Doc. 72, Ex. 1 at 329:18-337:10.
Clinical Nurse Manager Reshma Maharaj (“Maharaj”) supervised Shaninga while she worked in SLMC’s telemetry department. DSOF ¶ 38. On April 12, 2013, Clinical Coordinator Ampili Umayamma emailed Maharaj to report that Shaninga had been involved in a heated disagreement with another SLMC employee in front of a patient. DSOF ¶ 49. Shaninga concedes that Umayamma sent the email, but she denies its description of the incident. PSOF ¶ 49.
On May 7, 2013, SLMC security officers Fenel Lafleur and Brian Rhodes reported to Smith that they witnessed Shaninga in a second altercation with another SLMC employee-Karla Rivas (“Rivas”)-that involved another heated exchange in the presence of a patient. DSOF ¶ 50. Shaninga admits that such an incident was reported, however, she denies the details of the incident. PSOF ¶ 50. Shaninga claims that she “interrupted a violation of hospital policy, and possibly state law, by stopping [Rivas from administering] a four-point restraint on an African-American patient under her care . . . .” PSOF ¶ 92. Shaninga reprimanded Rivas, who abandoned Shaninga with the patient and complained to Smith. PSOF ¶¶ 93-94.
Also on May 7, 2013, Shaninga emailed a complaint to Maharaj that described at least two “situations” regarding how other nurses and SLMC employees treated Shaninga. Doc. 72, Ex. 1, Ex.121. The complaint consisted mostly of issues with how other nurses and nursing assistants performed their duties; however, Shaninga also referenced situations possibly involving her race, for example, once when an SLMC employee informed her that a certain secretary had “problems with black people” or another incident where Shaninga heard SLMC staff members mocking her English language skills. PSOF ¶ 67, Ex. 1-1; Doc. 72, Ex. C ¶ 11. Maharaj informed Shaninga on May 8, 2013 that she would look into each “situation” and would schedule a time for the two of them to meet. PSOF ¶ 67, Ex. 1-1. Maharaj investigated Shaninga’s concerns by “reviewing her assignments and interviewing the charge nurses” and she determined that Shaninga’s work assignments were fair, which she relayed to Shaninga. Doc. 72, Ex. C ¶ 12, Ex. 4. Shaninga disputes that Maharaj reasonably investigated the reported incidents. PSOF ¶ 62.
On May 16, 2013, Maharaj and Scherger met with Shaninga to review her ninety-day performance evaluation. Doc. 72, Ex. C ¶ 17. Maharaj rated Shaninga “above average” in the categories of quality of work, quantity of work, ability to learn, and initiative, while she rated Shaninga “satisfactory” in the categories of attitude and attendance. Doc. 72, Ex. C ¶ 17, Ex. 8. Shaninga also received a verbal warning for unprofessional behavior due to the chronicled incident with Rivas. DSOF ¶¶ 51-52. On May 19, 2013, Shaninga received, but refused to sign, the performance management program (“PNP”) record of conference document related to the incident with Rivas. Doc. 72, Ex. C ¶ 18, Ex. 9. Instead, Shaninga emailed Maharaj and requested to be taken “off the schedule for now because I have to clear my name.” Doc. 72, Ex. C ¶ 18, Ex. 9.
On May 20, 2013, Scherger emailed SLMC’s Director of Human Resources Trinise Thompson (“Thompson”) and summarized the May 16 meeting with Shaninga. Doc. 72, Ex. C ¶ 19, Ex. 10. In it, Scherger recounted Maharaj’s review of Shaninga’s complaints included in her May 7 email. Doc. 72, Ex. C ¶ 19, Ex. 10. He also discussed the incident with Rivas and Shaninga’s refusal to sign the PNP. Doc. 72, Ex. C ¶ 19, Ex. 10. Finally, he explained that at the meeting’s conclusion, all of the parties agreed that Shaninga would return to work on May 20. Doc. 72, Ex. C ¶ 19, Ex. 10.
On May 30, 2013, Shaninga requested a low patient census (otherwise referred to as “LCD” in SLMC’s documentation) for May 31 in an effort to take that day off. Doc. 72, Ex. D ¶ 24. SLMC denied her request; nonetheless, Shaninga did not show up for her shift resulting in a “no call/no show” on her timesheet. Doc. 72, Ex. D ¶ 24.
On May 31, 2013, Scherger emailed Thompson and asked the HR department “to review [Shaninga’s] files for consideration of continued employment, due to the number of [attendance and behavioral] issues presented in her first 4 months as an employee [i.e., Shaninga’s probationary period].” Doc. 72, Ex. D ¶ 25, Ex. 6. The request stemmed “solely” from Shaninga’s attendance and behavioral issues. Doc. 72, Ex. F ¶ 30. Thompson responded with three termination options. Doc. 72, Ex. F ¶ 30, Ex. 13. One option raised the concern that Shaninga may file a retaliation claim since Shaninga had already filed a grievance (raising work related issues but not yet discrimination) with SLMC. Doc. 72, Ex. F ¶ 31. Scherber forwarded Thompson’s proposed options to Smith, but SLMC took no action. Doc. 72, Ex. F ¶ 30, Ex. 13.
On June 26, 2013, Shaninga emailed Maharaj and raised the issue of race discrimination at SLMC. Doc. 72, Ex. C ¶¶ 20-21, Ex. 11. Shaninga suggested that it was because she was “the only black full time nurse on days” that her co-workers treated her negatively. Doc. 72, Ex. C ¶ 20, Ex. 11. Shaninga also accused SLMC of turning a blind eye to the improper actions of Shaninga’s co-workers since “[t]he perpetrator[s were] not black.” Doc. 72, Ex. C ¶ 20, Ex. 11. Shaninga further alleged retaliation from her May 7 complaint, arguing that while her shifts “haven’t been cancelled unfairly . . . [her] assignment has been overloaded.” Doc. 72, Ex. C ¶ 20, Ex. 11. Maharaj forwarded the email to the HR department who eventually forwarded the email to Thompson. Doc. 72, Ex. F ¶ 32.
Thompson, in response, personally began investigating Shaninga’s allegations of discrimination including interviewing employees in the telemetry department. Doc. 72, Ex. F ¶ 33. None of the nurses Thompson interviewed, as evidenced by Thompson’s interview notes, raised any issues related to discrimination in the telemetry department. Doc. 72, Ex. F ¶ 33, Ex. 15. In addition to her personal interviews, Thompson also considered an in-depth summary drafted by Maharaj outlining the history of her interactions with Shaninga since Shaninga began in the telemetry department. Doc. 72, Ex. F ¶ 36, Ex. 16; Doc. 72, Ex. C ¶ 23, Ex. 13. At no point did Thompson or any other individual from SLMC follow-up with Shaninga personally as part of its investigation of her allegations of discrimination. PSOF ¶ 67, Ex. 1 ¶ 69.
Thompson reported back to Maharaj that her investigation uncovered no corroborating evidence of Shaninga’s claims of discrimination. Doc. 72, Ex. C ¶ 24. Maharaj then attempted to set up an in-person meeting with Shaninga to discuss her allegations, but Shaninga declined and instead requested that SLMC’s response be in a letter. Doc. 72, Ex. C ¶ 24, Ex. 14. After consulting with Thompson and Smith regarding the contents of the correspondence, Maharaj sent Shaninga a letter on July 16, 2013 explaining that after investigating her claims of discrimination, the HR department “found no verification of discriminatory practices.” Doc. 72, Ex. C ¶ 26, Ex. 16.
After her May 7 and June 26 complaints, Shaninga alleges that she began to encounter increased “push backs” and LCD cancellations to her schedule. PSOF ¶¶ 108- 109. Furthermore, although SLMC would push back her shifts, it concurrently utilized “pool” and outside agency nurses-nurses normally only called in when SLMC failed to find a full-time nurse to work a shift. PSOF ¶¶ 110-113. Shaninga claims SLMC’s conduct was retaliatory. PSOF ¶ 113.
On July 29, 2013, Shaninga received a verbal warning due to five “occurrences, ” i.e., absences or “no call/no shows, ” under SLMC’s attendance policy. DSOF ¶¶ 57-58; Doc. 72, Ex. F, Ex. 22. That same day Shaninga also submitted an application for transfer seeking a position in the Tempe SLMC’s intensive care unit (“ICU”). DSOF ¶ 39. Smith approved her application and she started working in the ICU on August 4, 2013. DSOF ¶ 40; Doc. 72, Ex. E ¶ 35. Shaninga claims that Smith took a more direct role in controlling her schedule and work environment after the transfer. PSOF ¶ 115. At the ICU, Jesse Sharrock (“Sharrock”) became Shaninga’s new supervisor. Doc. 72, Ex. 1 at 347:15-20.
Around the time of her transfer, Shaninga requested orientation at the ICU. PSOF ¶ 117. SLMC scheduled orientation from August 2-4, 2013, however, Smith cancelled the first two orientation days and the ICU was closed on the third. PSOF ¶ 117. Shaninga attempted to re-schedule her orientation, but Shaninga states that Smith and various ICU nurses and staff prevented her from doing so. PSOF ¶¶ 118-121. Eventually, on August 6, 2013, ICU staff told Shaninga that she could not work until she received an updated TB skin health screening since her previous one had expired that day. PSOF ¶ 122. Shaninga claims that SLMC failed to notify her of the impending expiration of her TB skin health screening, and normal procedures ensure that nurses are notified in order for them remain in compliance. PSOF ¶ 123. Shaninga received a TB skin health screening and started back at work by August 13, 2013. PSOF ¶ 126.
On September 27, 2013, Sharrock verbally counseled Shaninga on SLMC’s attendance policy stemming from an incident in which Shaninga failed to show up for her shift after first having her shift pushed back several hours. DSOF ¶ 59; Doc. 72, Ex. 1 at 350:15-355:16, Ex. 128. Shaninga concedes that she received the counseling, but she contests the appropriateness of the counseling since, according to her, she missed her shift because the ICU indicated that they would contact her by 9:00 p.m. to let her know whether she needed to come in that night. PSOF ¶ 59; Doc. 72, Ex. 1 at 350:15-352:7. When she did not hear from them by that time, she fell asleep and missed their calls later in the evening. PSOF ¶ 59; Doc. 72, Ex. 1 at 350:15-352:7. Shaninga refused to sign the related PNP document. Doc. 72, Ex. 1, Ex. 128.
On October 8, 2013, Shaninga received another written counseling from Sharrock, this time related to Shaninga’s “7 call offs in a rolling 12 month period ending on October 7, 2013 [that] indicate chronic absenteeism and violation of” SLMC’s attendance policy. DSOF ¶ 60; Doc. 72, Ex. 1, Ex. 129. Shaninga admits to receiving the counseling, although she disagrees that such counseling was appropriate. PSOF ¶ 60. Shaninga again refused to sign the related PNP document. Doc. 72, Ex. 1, Ex. 129.
On October 29, 2013, Sharrock reported to Smith and the Director of Quality and Risk Management Rejeanna Hunter (“Hunter”) that Shaninga had improperly administered a total parenteral nutrition (“TPN”) bag to a patient whom the treating physician had ordered to be taken off the therapy and then defaced the label of the bag to cover up the error. DSOF ¶ 70. The original intended recipient of the TPN bag, as a result, went without his therapy. Doc. 72, Ex. E ¶ 38. As described to Sharrock from Nolan Jenkins (“Jenkins”), a nurse in the ICU, during the morning shift change, Shaninga informed Jenkins that the patient’s treating physician had discontinued the TPN bag, but because a new TPN bag had already been prepared, she hung it anyway so it would not go to waste. Doc. 72, Ex. B ¶ 8. Jenkins discovered that in fact the newly prepared bag was intended for a different patient entirely, and someone, presumably Shaninga, altered the bag’s label in an attempt to obscure the different name. Doc. 72, Ex. B ¶ 9. Hunter testified to personally observing the defaced label herself. Doc. 72, Ex. B ¶ 10. The treating physician’s notes, moreover, reflected his or her order to discontinue the TPN bag on October 28, 2013. Doc. 72, Ex. B ¶ 11, Ex. 1. And an electronic record entered by Shaninga on the morning of October 29, 2013 indicated that she hung a TPN bag. Doc. 72, Ex. B ¶ 12, Ex. 2.
Shaninga denies that the incident ever occurred. PSOF ¶ 70. Nonetheless, in accordance with SLMC procedure, Hunter initiated an investigation into the medication error. Doc. 72, Ex. B ¶ 20. Eventually, after previous attempts to meet with Shaninga failed, Hunter, Smith, Sharrock, and Chief Nursing Officer Michael Polite (“Polite”) met with Shaninga regarding the error on November 1, 2013. Doc. 72, Ex. B ¶ 15. Hunter’s report of the meeting reflects that Shaninga admitted to hanging the TPN bag for a patient despite knowing that the treating physician had discontinued the therapy and it was intended for a different patient. Doc. 72, Ex. B ¶¶ 16, 20, Ex. 3. In the meeting, Shaninga initially dismissed the mistake stating “well nobody died, right?” and then excused her behavior on religious grounds stating that her beliefs did “not allow [her] to participate in withdrawal of care.” Doc. 72, Ex. B ¶ 20, Ex. 3. Shaninga also expressed that she often found errors in the work of other ICU staff yet she did not report them, and that she believed SLMC was targeting her personally. Doc. 72, Ex. B ¶ 20, Ex. 3.
After the interview concluded, Hunter, Smith, Sharrock, and Polite determined that Shaninga should be terminated. Doc. 72, Ex. B ¶ 20, Ex. 3. Smith terminated Shaninga’s employment effective November 4, 2013 for “practice outside the scope of nursing, willingly, knowingly.” Doc. 72, Ex. E ¶ 56, Ex. 13. Hunter also filed a complaint against Shaninga to the Arizona Board of Nursing due to the alleged TPN error. Doc. 72, Ex. B ¶ 22. IASIS Vice President of Human Resources Lloyd Price approved the decision to end Shaninga’s employment and to report her to the Board of Nursing after being informed of the TPN error. Doc. 72, Ex. F ¶ ...