United States District Court, N.D. Oklahoma
OPINION AND ORDER
TERENCE C. KERN UNITED STATES DISTRICT JUDGE.
the Court is the Motion for Summary Judgment (Doc. 22) of
Defendants Select Specialty Hospital-Tulsa/Midtown, LLC and
Select Specialty Hospital-Tulsa, Inc.
(“Defendants”). For reasons set forth below, the
Motion for Summary Judgment is GRANTED.
Statement of Undisputed Material Facts
Plaintiff's Employment with Defendant and Sleeping on
Yolanda Raymond (“Plaintiff”) is an
African-American woman who was employed by Defendants as a
Certified Nursing Assistant (“CNA”) from
approximately May 20, 2013 to July 22, 2015. (Doc. 22, ¶
1; Doc. 28-11, pg. 1.) Plaintiff reported to Chief Nursing
Officer Dawn Goetz (“Goetz”). (Doc. 33-2, pg.
2-3.) Plaintiff was employed by Defendants as a
“bedside sitter” and assigned to monitor patients
who have a high risk of falling or pulling out medical
devices. (Doc. 22, ¶ 11, 16.) Defendants' written
bedside sitter policy lists responsibilities including
“constant surveillance of patient” and
“assist[ing] patient with basic hygiene, oral intake,
and activity under the direction and supervision of the
assigned nurse.” (Doc. 28-7.) A bedside sitter was also
required to check for wet pads beneath a patient every one to
two hours. (Doc. 22, ¶ 18.)
night of June 20, 2015, Plaintiff was working a 12-hour shift
as a bedside sitter, from 7:00 p.m. to 7:00 a.m. the next
morning (Doc. 22, ¶ 20.) Plaintiff had worked nearly 100
hours in that pay period including the last six days
straight. (Doc. 28-4, pg. 1; Doc. 28-1, pg. 8.) During her
shift on the night of June 20, 2015, she received a bathroom
break around midnight, but no other breaks during her shift,
despite requesting them. (Doc. 28-1, pg. 11-16.) On the
morning of June 21, 2015, Plaintiff claims to have given her
patient a bath somewhere between 4:30 a.m. and 5:00 a.m.
(Doc. 28-1, pg. 34.) Between approximately 6:25 a.m. and 6:40
a.m., Charge Nurse Linda Johnson (“Johnson”)
discovered Plaintiff sleeping on duty. (Doc. 22, ¶ 19.)
Plaintiff woke up when Johnson entered the patient's room
and said “good morning.” (Doc. 22, ¶ 24.)
Immediately after Plaintiff awakened, Johnson told her that
she needed to gather her things and meet Johnson in the
Charge Nurse's office. (Doc. 22, ¶ 26; Doc. 28-1,
Charge Nurse's office, Plaintiff was told by Johnson that
it was not acceptable for her to be asleep while bedside
sitting with a patient, as the patient could injure herself.
(Doc. 22, ¶ 27.) Plaintiff apologized and explained that
she had been tired, but it wouldn't happen again. (Doc.
22, ¶ 28.) Johnson sent Plaintiff home and told her that
the incident would be reported to Goetz. At 8:03 a.m.,
Johnson emailed Goetz reporting finding Plaintiff asleep.
(Doc. 22, ¶ 32; Doc. 28-8.) In the email Johnson noted
that after she sent Plaintiff home she had returned to the
patient's room to relieve the staff member she had
assigned there, and found the patient had four wet blue pads
and a wet sheet under her. (Doc. 28-8.)
being sent home, Plaintiff called Goetz from the parking
garage and told Goetz that Johnson had found her sleeping,
and had sent her home. She apologized and said that it
wouldn't happen again. (Doc. 22, ¶ 33; Doc. 28-1,
pg. 29.) The following day, Plaintiff called Goetz again, and
was told that Defendants were investigating. (Doc. 28-1, pg.
29.) Aside from the email that Johnson sent Goetz, however,
there does not appear to be any further documentation of an
investigation. (Doc. 22-6.) Goetz has stated that she did not
interview the Charge Nurse who was on duty the night in
question. (Doc. 28-3, pg. 21.)
Defendants' Policies and Disciplinary Procedures
employees of Defendants are subject to the Select Medical
Human Resources Employee Handbook (“employee
handbook”). (Doc. 28-5, pg. 2.) While the employee
handbook describes a system of progressive discipline, it
also notes that “some unacceptable behaviors are so
serious that they may justify immediate termination.”
“Sleeping while on duty, ” is listed among these.
(Doc. 28-5, pg. 7.) Goetz testified that sleeping while on
duty will always result in immediate termination. (Doc. 33-2,
also testified that when administering discipline, she
submitted a request for disciplinary action to Human
Resources Coordinator Angelique Hampton
(“Hampton”). (Doc. 28-3, pg. 3.) It was her
understanding that Hampton would review the request with her
regional director and once Hampton and her regional director
made a decision, Goetz was told whether to move forward.
(Doc. 28-3, pg. 3.)
24, 2015, Goetz called Plaintiff and asked her to come in to
speak with her. Goetz and Hampton met with Plaintiff in
Goetz's office. (Doc. 22, ¶ 35.) At this meeting,
Goetz and Hampton discussed the policy that bedside sitters
must not sleep while sitting with patients. They also
presented Plaintiff with a Disciplinary Action Form
(“DAF”), which stated that Johnson found
Plaintiff sleeping on duty at approximately 6:40 a.m. on June
21, 2015. (Doc. 28-1, pg. 33.) The form also noted that
Plaintiff had told Goetz that she had “just dozed
off.” The form additionally stated that “[t]he
patient was found to have 4 blue pads underneath her,
saturated with urine-her linen sheet was also saturated with
urine and the bed had a visual moisture ring noted.”
(Doc. 22-9.) Plaintiff contends that she must not have read
the form at the time she signed it, as she had given the
patient a bath around 4:30 a.m. or 5:00 a.m., and not enough
time had elapsed between the bath and when she was found
sleeping for the patient to soak through four blue pads and
the linen sheet. (Doc. 28-1, pg. 34.) When Plaintiff signed
the form, she did not contest its contents, nor did she offer
any statement except an apology. (Doc. 22-9; Doc. 28-1, pg.
33-34.) Goetz and Hampton terminated Plaintiff's
employment with Defendants at this meeting. (Doc. 28-1, pg.
32; Doc. 22-9.)
Potential Comparator was not terminated
Sutherland (“Sutherland”), a Caucasian woman,
worked for Defendants as a “monitor tech.” (Doc.
22, ¶ 46-47.) Sutherland also reported to Goetz. (Doc.
33-2, pg. 3.) As a monitor tech, Sutherland was required to
watch the monitor screens that continuously report
patients' vital signs for potentially lethal rhythms.
(Doc. 22, ¶ 47.) Accordingly, a monitor tech's eyes
should be 100% focused on those screens. (Doc. 28-3, pg. 10.)
was accused of sleeping while on duty by CEO Linda Tiemens
(“Tiemens”). (Doc. 22, ¶ 51-52; Doc. 28-3,
pg. 4-5.) Goetz was out of the building at the time but on
the following workday, Tiemens approached her and told her
she thought Sutherland was sleeping on the job. (Doc. 28-3,
pg. 4.) Goetz testified that if Sutherland was truly
sleeping, Tiemens should have suspended her pending an
investigation. She also indicated the investigation should
have begun immediately, while memories were still fresh.
(Doc. 28-3, pg. 5-6.) However, Tiemens did not suspend
Sutherland and did not begin an immediate investigation.
(Doc. 28-3, pg. 5-7.) Goetz testified this was a pattern of
behavior with Tiemens-that she would bring Goetz things after
the fact and then ask Goetz to rectify them. (Doc. 28-3, pg.
her return to work, Goetz did, in fact, investigate. However,
since Sutherland was not scheduled to work at this time,
Goetz did not suspend her. (Doc. 28-3, pg. 14.) During the
investigation, Goetz spoke to Sutherland, who clearly denied
sleeping. (Doc. 28-3, pg. 7.) Goetz also reinterviewed
Tiemens, who then said she was not 100% sure that Sutherland
was sleeping. (Doc. 28-3, pg. 8.) Tiemens and Goetz even
playacted the scene and determined that Tiemens would have
only been able to see the side of Sutherland's face.
(Doc. 28-3, pg. 9.) Johnson was asked by Goetz if she had
ever had any issues with Sutherland sleeping while on duty,
and Johnson reported she had not. (Doc. 28-3, pg. 12.)
gave the results of her investigation to Hampton. Hampton
also spoke with the Chief Nurse and several other nurses who
were on the floor the day Sutherland was accused of sleeping,
but no one had witnessed her sleeping. (Doc. 28-4, pg. 1.)
However, there is no documentation of Defendants'
investigation with regard to Sutherland. (Doc. 28-6, pg.
1-2.) Defendants' internal documents state that they
decided “not to proceed with disciplinary action,
because we had a “he said/she said.” (Doc. 28-4,