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Raymond v. Select Specialty Hospital-Tulsa/Midtown, LLC

United States District Court, N.D. Oklahoma

March 20, 2019




         Before 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.

         I. Statement of Undisputed Material Facts

         A. Plaintiff's Employment with Defendant and Sleeping on Duty

         Plaintiff 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.)

         On the 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, pg. 23.)

         In the 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.)

         After 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.)

         B. Defendants' Policies and Disciplinary Procedures

         All 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, pg. 4.)

         Goetz 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.)

         C. Plaintiff's Termination

         On June 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.)

         D. Potential Comparator was not terminated

         Dorothy 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.)

         Sutherland 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. 6-7.)

         Upon 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.)

         Goetz 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, pg. 1.)

         II. Summary ...

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