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O'Neal v. Shinseki

United States District Court, Northern District of Illinois, Eastern Division

March 24, 2015

Kenneth O’Neal, Plaintiff,
Erik K. Shinseki, Secretary, U.S. Department of Veterans Affairs Defendant.


John Robert Blakey, Judge United States District Court.

Plaintiff Kenneth O’Neal brought this suit against Defendant Erik Shinseki, the Secretary of the U.S. Department of Veterans Affairs (the “VA”). Plaintiff alleges that, in terminating his employment, the Defendant discriminated against him on the basis of sex in violation of Title VII of the Civil Rights Act, 42 U.S.C. § 2000e-16, and on the basis of age in violation of the Age Discrimination in Employment Act (“ADEA”). 9 U.S.C. § 621 et seq. Defendant filed a Motion for Summary Judgment [22]. For the following reasons, that Motion is GRANTED.

I. Background

A. Plaintiff’s Employment with the VA

Plaintiff is a 63 year old man who was licensed as a registered nurse (“RN”) in 1979. [29] at 2; [24-5] D. Ex. 3 at 9. He was hired by the VA as a RN on September 22, 2008. [30-1] P. Ex. 1. At the time, he was 57 years old. He was hired to work at the Edward Hines Jr. VA Hospital and assigned to the Mental Health Service at 2 South. [30-1] P. Ex. 1. His position was considered a temporary excepted appointment under 38 U.S.C. § 7405(a)(1)(A). Id. In that position, Plaintiff was subject to a short “temporary” period before beginning a two year probationary period. PSOF ¶3.

Upon beginning his employment, Plaintiff underwent a two week hospital orientation and a four week unit orientation. PSOF ¶4. He signed a form acknowledging that he completed his unit orientation, [24-6] D. Ex. 4, and admitted that he had reviewed and understood the VA policies regarding patient care in his unit. [24-9] D. Ex. 7 at RFA 9. Theodora Banks (“Banks”), a Clinical Nurse Manager, was Plaintiff’s immediate supervisor. Alton Alexander (“Alexander”) was the Associate Chief Nurse, and Plaintiff’s second-line supervisor. PSOF ¶ 2.

B. The Patient Care Incident

This matter concerns the Plaintiff’s improper response to a patient request for medication (the “incident”).[1] On November 7, 2008, Patient X was transferred to the Mental Health Service because he was having suicidal ideation. DSOF ¶ 7; [24-3] D. Ex. 2 (EEO Hearing) at 45:3-8. The Patient had just undergone back surgery and was receiving pain medication through an IV immediately prior to his transfer to 2 South. [24-3] D. Ex. 2 at 187:13-17. On 2 South, the medical staff could not continue administering medication in intravenous form for safety reasons, and the medical director said that the Patient was concerned about how his pain was going to be managed. Id. at 187:3-17. Plaintiff admitted Patient X to 2 South around 5:00 p.m. on November 7, 2008. Id. at 44:17-45:2. While it is disputed whether Plaintiff received a full report regarding Patient X upon admission, DSOF ¶ 8; PSOF ¶ 10, it is clear that he did perform an assessment of Patient X’s pain at that time. DSOF ¶ 8. Plaintiff indicated that Patient X was able to walk and did not appear to be in pain when he was admitted. [24-3] D. Ex. 2 at 48:18-21, 50:6-12.

On November 7, 2008, Plaintiff was responsible for the following specific duties: admissions, patient care charting, and caring for patients detailed to him. Id. at 460-462. He also had a general responsibility to continue caring for the patients that he admitted. Id. On 2 South, all nurses were able to dispense medication. Id. at 252. While there was a designated “medication nurse” who was specifically assigned to give medications as her primary duty, that did not negate the responsibility of RNs like the Plaintiff to administer medicine. Id.

Roginia Smith (“Smith”) was a licensed practical nurse (“LPN”) working in 2 South on the night of November 7, 2008. Id. at 316:21-317:5. At about 10:00 p.m., Patient X’s wife (“Mrs. X”) came to the nurse’s station and requested pain medication for her husband. [24-10] D. Ex. 8. Smith told Mrs. X that her husband had to come to the nurse’s station to get his medication because she had to scan his wrist barcode. Id. Mrs. X told Smith that her husband was in severe pain[2] and could not come to the nurse’s station. Id. Smith reiterated that Patient X would have to come to the desk. Id. Plaintiff saw Mrs. X having a heated discussion with LPN Smith and went to see if he could be of assistance. [24-3] D. Ex. 2 at 60:2-10. He heard LPN Smith tell Mrs. X that the patient “needed to come to the nurse’s station” to get his medication, and he admits that he “reinforced that” to the wife. Id. at 68. Plaintiff testified that he told Mrs. X “the same thing that the LPN is telling you that [the patient] needs to come to the nurse’s station to receive medications.” Id. at 70:11-16. Despite having admitted to the above, Plaintiff insists that Mrs. X made “no request for pain meds.” Id. at 82:1-3.

At no time during or shortly after this argument did Plaintiff help Patient X. Plaintiff did not assess Patient X for pain and Plaintiff did not see anyone else do so. Id. at 149. There is no evidence in the record he ensured that someone else assessed the Patient’s pain, or that he took any further action to ensure that the Patient was adequately cared for. In fact, the last time Plaintiff assessed Patient X for pain on November 7, 2008 was at 6:00 p.m, nearly four hours before the incident. Id. at 166:9-12.

After the heated argument with Mrs. X, Plaintiff walked away from the nurse’s station and, as he did so, he saw Charge Nurse Malibiran (“Malibiran”). Id. at 71. According to the Plaintiff, Malibiran was standing by the door to the nurse’s station, approximately ten to fifteen feet away, in a position where she could see and hear the argument. Id. Plaintiff walked over to Malibiran, shrugged his shoulders, and said, “how long is she [Mrs. X] going to be here.” Id. at 74:11-20. Plaintiff then walked back towards the inside of the nurse’s station and observed Malibiran “walk over towards the desk where the LPN [Smith] was at.” Id. at 72:4- 20. Plaintiff testified that Malibiran appeared to have a conversation with the LPN, though he did not hear what was said. Id.

There is conflicting evidence in the record about whether Malibiran was aware of the incident and, if so, the extent of her awareness. For her part, Malibiran did not remember witnessing the argument between Mrs. X and Plaintiff or LPN Smith. Id. at 452:16-24, 456:18-457:6. Malibiran testified that the first time she heard any complaint from Mrs. X was when Mrs. X left the floor at about 10:30 and asked her for the name of the nurse who had admitted Mr. X (Plaintiff). Id. at 465:12-466:3. LPN Smith testified, however, that she had a discussion with Malibiran after the incident and that Malibiran admitted she had heard Smith’s conversation with Mrs. X. [30-2] P. Ex. 24 at 8-9.

Approximately thirty minutes after the incident, Plaintiff observed Patient X in a wheelchair at the nurse’s station, along with his wife, getting his medications. [24-3] Ex. 2 at 73:5-24, 76:1-23. Then he saw them leave the nurse’s station and go back towards their room. Id. Plaintiff had no other interactions with Patient X or his wife that night. Id.

C. The Disciplinary Process

The disciplinary process that resulted from the incident began that very night, when Associate Chief Nurse Alexander was notified that an issue had arisen. Id. at 372:21-373:5. The next day, the Chief of the Mental Health Service Line emailed Alexander, detailing the complaints from Mrs. X. [24-13] D. Ex. 11; [24-3] D. Ex. 2 at 236:14-15. The e-mail, titled “Information about high profile patient, ” informed Alexander that Patient X and his wife had multiple compelling complaints of “nursing staff insensitivity bordering on abuse.” [24-13] D. Ex. 11. This included inappropriate yelling in the hallway by one of the nurses, frightening the Patient, being insensitive in communications to Mrs. X and the Patient, as well as inappropriately handling the Patient’s pain medication by insisting he walk to the nurse’s station. Id. Alexander also received “Report of Contact” memos from LPN Smith and another nurse describing the events of November 7. [24-10] D. Ex. 8; [24-11] D. Ex. 9.

On November 10, 2008, the Director of the Hines VA appointed an Administrative Investigation Board (“AIB”) to conduct a review of the facts related to the allegations made by Patient X and his wife. [24-20] D. Ex. 18. The memorandum initiating the AIB referenced misconduct by Plaintiff and Smith, but did not say anything about Malibiran. Id. On November 13, 2008, Alexander issued Smith a reassignment memo that noted the complaints related to Patient X and temporarily detailed her out of patient care. [24-8] D. Ex. 6. On November 14, 2008, Alexander issued a similar memo to the Plaintiff. [24-7] D. Ex. 5. There is no evidence that a reassignment memo was sent to Malibiran. Both Plaintiff and Smith were given non-public-contact assignments until the AIB investigation concluded, roughly three months later. [24-9] D. Ex. 7 at RFA 8.

In January 2009, the AIB concluded its investigation and issued a report. [24-2] D. Ex. 1. The report found there was no evidence that Plaintiff and Smith had abused the Patient or breached therapeutic boundaries. The AIB did conclude, however, that Plaintiff and Smith “did not respond immediately to the request from Mrs. [X] for pain medication to be brought to Mr. [X]’s room, ” and that while “the intent to abuse” Patient X was not substantiated, “poor judgment was used in not addressing this nursing request directly and immediately.” Id. The AIB found no wrongdoing by Charge Nurse Malibiran. Id.

i. Plaintiff’s Termination

Plaintiff met with Alexander and Banks three times after the incident to discuss his conduct. DSOF ¶¶ 34-36. At the meetings, Plaintiff claimed that he “did nothing wrong” and that he “did nothing to jeopardize the patient’s safety.” [24-3] D. Ex. 2 at 157:13-20. Alexander responded by telling the Plaintiff that he had failed to address the patient’s pain needs appropriately. Id. at 81:24-82:23, 159:4-7. Plaintiff was argumentative and accepted no responsibility during each meeting with Alexander. Id. at 394:12-17.

On March 19, 2009, Alexander wrote to Michelle Rummage in Human Resources requesting to terminate Plaintiff for “failure to provide safe and timely care to a patient.” [24-14] D. Ex. 12; [24-3] Ex. 2 at 290:2-6. Alexander wrote that Plaintiff is:

“an experienced Registered Nurse. However, while speaking with the employee, he admitted that he did fail to respond to a family member’s request to have a patient receive pain medication. In addition, he did not assess the patient’s level of pain. This is not an acceptable standard of care. It is also alarming that an experienced nurse would fail to utilize critical thinking skills. This resulted in the patient be[ing] placed in a potentially harmful situation. His failure to respond and act appropriately also created a negative impact on patient satisfaction. Patient satisfaction is a Performance Measure for the facility.” [24-14] D. Ex. 12.

Rummage responded by requesting records and information relating to Plaintiff’s training, and Alexander said that he would send what he had. Id.

At the time Plaintiff was disciplined, he was a temporary, excepted employee subject to a period of temporary status followed by a two-year probationary period. [24-3] D. Ex. 2 at 284:5-19, 342-343, 540:2-3. As such, he was subject to termination at will, with no right to appeal to the Merit Systems Protection Board (“MSPB”) or other similar rights held by career employees. Id. On March 20, 2009, the VA issued a letter to Plaintiff terminating his excepted appointment due to “unacceptable performance.” [24-15] D. Ex. 13.

ii. LPN Smith’s Termination

Similar to the Plaintiff, Alexander met with LPN Smith after the incident to discuss her poor performance and tell her how the care she provided to Patient X had been substandard. [24-3] D. Ex. 2 at 285:10-286:2. Unlike the Plaintiff, Smith did not respond by arguing with Alexander, but by expressing remorse, apologizing, and promising that it would not happen again. Id.

LPN Smith also differed from the Plaintiff in that she was a career employee who had procedural and substantive rights concerning disciplinary actions. Id. at 552. This included a full review by the MSPB of the substantive grounds for any discipline imposed on her. Id. at 539-40, 552:5-23; [30-1] P. Ex. 15. For career employees, then, it was the practice of the HR department to require more complete and compelling evidence to support any discipline. Id. at 543:9-24, 551:21-552:23. For excepted appointments like Plaintiff, HR only required management to articulate a basis for the proposed discipline, but not to provide the same evidence or detail as required to proceed against a career employee. Id. at 543:20-24.

As with Plaintiff, Alexander wrote a memo to Michelle Rummage about LPN Smith’s role in the incident. [24-16] D. Ex. 14. That memo was sent roughly one month after Plaintiff’s memo[3] and detailed Smith’s role in the events of November 7, 2008, including her failure to fulfill her duties as an LPN. Id. The memo requested that Rummage “provide guidance on the appropriate level of disciplinary action(s) for this employee, including a 14-day suspension and possible removal.” Id. While Plaintiff notes that the memo was only sent to Rummage after Plaintiff contested his termination with the EEO Office of Resolution Management, there is no evidence that Alexander knew the Plaintiff had contacted that office.

Around this time, Rummage left the VA and was replaced by Estella Guerrero. [24-3] D. Ex. 2 at 531:18-21, 532:9-11. Guerrero had not been involved in the disciplinary action against Plaintiff. Id. at 531:18-21. On April 21, 2009, Guerrero emailed Alexander in response to his memo concerning Smith’s performance on November 7, 2008. That email questioned the timeliness of the action against Smith and ...

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