Mandoki v. Carson-Tahoe Regional Medical Center, No. 3:2011cv00398 - Document 37 (D. Nev. 2012)
Court Description: ORDER GRANTING 27 Motion for Summary Judgment. Signed by Judge Howard D. McKibben on 11/8/12. (Copies have been distributed pursuant to the NEF - JK)
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Mandoki v. Carson-Tahoe Regional Medical Center Doc. 37 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 DISTRICT OF NEVADA 10 11 12 13 14 15 16 17 ELVA MANDOKI, ) ) Plaintiff, ) ) vs. ) ) CARSON-TAHOE REGIONAL MEDICAL ) CENTER, ) ) Defendant. ) _________________________________ ) 3:11-cv-00398-HDM-WGC ORDER Before the court is defendant’s motion for summary judgment 18 (#27). 19 alleging a single cause of racial discrimination (#1). 20 filed a motion for summary judgment (#27), plaintiff opposed (#32) 21 and defendant replied (#36). 22 defendant’s motion is granted. 23 I. Factual Background 24 On June 6, 2011, plaintiff filed a complaint in this court Defendant For the reasons set forth below, Plaintiff is Elva Mandoki, a United States citizen who was 25 born in Mexico and is of Hispanic descent. 26 Mot. Summ. J. Ex. A (“Mandoki Dep.”), 10:25-11:7). 27 Carson-Tahoe Regional Health Care, improperly named 28 Regional Medical Center, (“CTRH”). (Pl.’s Opp’n Def.’s Defendant is Carson-Tahoe (Def.’s Mot. Summ. J. Ex. B 1 Dockets.Justia.com 1 (“Wilkens Decl.”), ¶ 2). 2 beginning in 2002 until her termination in 2009. 3 22:16-23). Mandoki was employed by CTRH as a nurse (Mandoki Dep. 4 Mandoki began working in the nursing field in 1996, when she 5 took a position as a Certified Nursing Assistant in a nursing and 6 rehabilitation center. 7 Mot. Summ. J. Ex. B). 8 Nurse. 9 Mandoki attended classes in order to receive her Registered Nurse (Mandoki Dep. 17:7-9; Pl.’s Opp’n Def.’s In 1998, Mandoki became a Licensed Practical (Pl.’s Opp’n Def.’s Mot. Summ. J. Ex. B). Thereafter 10 (“RN”) license. 11 defendant hired Mandoki as a graduate nurse and assigned her to the 12 night shift in the Surgical/Orthopedics Unit. 13 Mot. Summ. J. Ex. D; Shirey Decl. ¶ 2). 14 after completing her requirements for an RN and receiving her RN 15 license, Mandoki was promoted to staff nurse. 16 Mandoki Dep. 18:7-9; Pl.’s Opp’n Def.’s Mot. Summ. J. Ex. E). 17 or about June 2005, defendant promoted Mandoki to team leader. 18 (Pl.’s Opp’n Def.’s Mot. Summ. J. Ex. G). 19 for the position of charge nurse. 20 In November 2005, Mandoki’s supervisor, Leighanne Shirey, promoted 21 Mandoki to charge nurse–the position Mandoki occupied until her 22 termination. (Mandoki Dep. 30:25-31:23, Shirey Decl. ¶ 3; Def.’s 23 Mot. Summ. J. Ex. E; Pl.’s Opp’n Def.’s Mot. Summ J. Ex. H). 24 (Mandoki Dep. 18:7-16). On July 1, 2002, the (Pl.’s Opp’n Def.’s On September 5, 2002, (Wilkins Decl. ¶ 2; In Later, Mandoki applied (Def.’s Mot. Summ. J. Ex. D). As the charge nurse for the night shift in the 25 Surgical/Orthopedics Unit, Mandoki was responsible for facilitating 26 all patient care for the overnight shift, and also remained 27 responsible for her own assigned patients. 28 Ex. F; Shirey Decl. ¶ 4). (Def.’s Mot. Summ. J. Mandoki also acted as a resource and 2 1 facilitator for other staff nurses. 2 Shirey Decl. ¶ 4). 3 established hospital policies. 4 the time of hire, she was required to have passed the hospital’s 5 medication test and be trained in hospital policies, including use 6 of the Pyxis machine. (Def.’s Mot. Summ J. Exs. F, K ¶ 20, N; 7 Mandoki Dep. 63:18-64:2; 68:7-13; Dinauer Decl. ¶ 6). 8 9 (Def.’s Mot. Summ. J. Ex. F; Further, Mandoki was responsible for following (Def.’s Mot. Summ. J. Ex. F). At Pyxis machines are located throughout the hospital in the hospital’s different units. (Dinauer Decl. ¶ 2). The Pyxis 10 machine is a means by which medication is provided to hospital 11 patients. 12 a profile, and when a doctor orders medication for that patient, 13 the hospital’s pharmacy enters the order into the computerization 14 system, which then creates authorization to access the medication 15 and deliver it to the patient. 16 Decl. ¶ 2; Def.’s Mot. Summ. J. Ex. K). 17 requires that all orders be reviewed by a pharmacist to ensure 18 compliance with state and federal laws. 19 Mot. Summ. J. Ex. K ¶¶ 3.4, 4.1). 20 authorized hospital employees may administer medicine to patients. 21 The lone exception is the employees of the Emergency Department 22 (“ED”). 23 dispense medicine for at home use after pharmacy hours because 24 unlike other departments, the ED has a physician present at all 25 times.1 (Def.’s Mot. Summ. J. Ex. K). Each patient is assigned (Mandoki Dep. 64:7-18; Dinauer CTRH’s Pyxis policy (Dinauer Decl. ¶ 3; Def.’s Under the policy, only (Def.’s Mot Summ. J. Ex. K ¶ 10.2-.3). The ED may (Dinauer Decl. ¶ 5; Def.’s Mot. Summ. J. Ex. M). Even 26 27 28 1 NAC 639.450 provides: “‘[d]ispense’ means the furnishing of a controlled substance or dangerous drug in any amount greater than that necessary for the present and immediate needs of the ultimate user. The term does not include the furnishing of a controlled substance or dangerous drug by a pharmacy in a medical 3 1 CTRH’s pharmacy cannot furnish medicine to patients upon release 2 from the facility because the hospital is not licensed to do so. 3 (Def.’s Mot. Summ. J. Ex L). 4 Users of the Pyxis machine are assigned a password and also 5 use a fingerprint to access the medication for that particular 6 patient once the medication is placed into the patient’s profile. 7 (Mandoki Dep. 64:19-23). 8 user. 9 unable to obtain narcotics. Privileges to the Pyxis machine differ by (Mandoki Dep. 64:24-65:1). For example, new nurses are (Mandoki Dep. 65:2-6; Def.’s Mot Summ. 10 J. Ex. K ¶ 4.2). 11 obtain medication not within the system that can’t be provided due 12 to the closure of the pharmacy. 13 Summ. J. Ex. K ¶ 4.2). 14 medication will manually override the Pyxis system, then a report 15 will automatically be sent to the pharmacy, and the report will be 16 reviewed by the pharmacist in the morning. 17 Ex. K 4.4-5). 18 Other employees possess override capabilities to (Mandoki Dep. 66:7-18; Def.’s Mot. In such cases, the employee seeking the (Def.’s Mot. Summ. J. On the night of October 28, 2009, Mandoki was working as the 19 charge nurse during the night shift at CTRH in the 20 Surgical/Orthopedic Unit. (Pl.’s Opp’n Def.’s Mot. Summ. J. Ex. L). 21 Mandoki, in her capacity as charge nurse for the Unit, assigned a 22 particular patient to Nurse Cassady Jeremias, a newly licensed RN. 23 (Mandoki Dep. 76:25:77:1; Def.’s Mot. Summ. J. Ex. O (“Jeremias 24 Decl.”) ¶ 1). 25 but was not considered an inpatient. 26 82:24-83:1). This patient was recovering from an appendectomy, (Mandoki Dep. 76:19-25, Mandoki instructed Nurse Jeremias to discharge the 27 28 facility to an inpatient of the medical facility in which the pharmacy is located.” 4 1 patient once he met the parameters for discharge, including being 2 pain-free. 3 (Mandoki Dep. 78:3-8). Around 9:30 p.m., Nurse Jeremias informed Mandoki that 4 everything was going OK with the patient, but he was still having a 5 lot of pain. 6 there were no orders for pain medications to give the patient, 7 Mandoki told Nurse Jeremias to telephone Dr. De Mar, the patient’s 8 physician. 9 (Mandoki Dep. 78:9-12; Jeremias Decl. ¶ 2). Since (Mandoki Dep. 78:13-14; Jeremias Decl. ¶ 2). Mandoki overheard Nurse Jeremias’ call to Dr. De Mar. 10 (Mandoki Dep. 78:25-79:11). 11 Jeremias repeat back the Doctor’s orders. 12 The Doctor’s order included an IV of Morphine and six (6) Percocet 13 to take home until a prescription could be filled in the morning. 14 (Mandoki Dep. 79:19-20; Jeremias Decl. ¶ 2). 15 allegedly instructed Nurse Jeremias not to keep the patient 16 overnight. 17 directed Nurse Jeremias to fax the Percocet order to the pharmacy 18 while Mandoki administered the morphine. 19 Jeremias Decl. ¶ 2). 20 fax machine. She assumed Jeremias had sent the order to the 21 pharmacy, and gave Nurse Jeremias the morphine to administer 22 herself. 23 According to Mandoki, she heard Nurse (Mandoki Dep. 79:12-18). Dr. De Mar also (Mandoki Dep. 79:6-11, 79:22-80:2). Mandoki then (Mandoki Dep. 80:3-6; Later, Mandoki saw Nurse Jeremias next to the (Mandoki Dep. 81:11-16). Around 11:30 p.m. that night, Nurse Jeremias informed Mandoki 24 that the Percocet Dr. De Mar had ordered was not loaded to the 25 patient’s profile in the Pyxis machine. (Mandoki Dep. 83:8-12; 26 Jeremias Decl. ¶ 3). 27 intra-hospital communication device, to call down to the 28 administrative coordinator or house supervisor for assistance. Mandoki proceeded to use the Vocera, an 5 1 (Mandoki Dep. 83:22-84:2). 2 Renee Crookham, Night Shift House Administrator. 3 84:11-12; Jeremias Decl. ¶ 3). 4 was an order for Percocet for an out-patient, that the Percocet was 5 not loaded into the Pyxis and asked if Crookham could get the 6 Percocet for them. 7 that she “did not know, but [to] call down here and talk to the 8 pharmacy.” 9 Vocera to pharmacist Susan Williams, who Mandoki claims did not On the receiving end of the Vocera was (Mandoki Dep. Mandoki told Crookham that there (Mandoki Dep. 84:11-14). (Mandoki Dep. 84:15-17). Crookham indicated Crookham then handed the 10 identify herself. 11 Summ. J. Ex. P (“Williams Decl.”) ¶ 3). 12 was, that she was working in the Surgical/Orthopedics Unit, that 13 they had faxed a doctor’s order for six Percocet that were not in 14 the patient’s profile, and she wanted the pharmacy to send the 15 Percocet up because the patient needed to go home with the pills. 16 (Mandoki Dep. 84:21-24, 87:15-21). 17 could not give Mandoki the Percocet because it would “be against 18 [her] license.” 19 ¶ 3). 20 have told the pharmacist of her intent to override the Pyxis system 21 to obtain Percocet for the patient.2 22 (Mandoki Dep. 84:18-20, 87:5-9; Def.’s Mot. Mandoki explained who she The pharmacist responded she (Mandoki Dep. 84:25-85:1, 87:22-24; Williams Decl. At this point in the conversation, Mandoki may or may not (Mandoki Dep. 88:7-13). Mandoki asserts that because the woman in the pharmacy did not 23 represent who she was or what her position was, the late hour, the 24 pharmacist’s disconnected attitude, the representation that filling 25 the prescription would be against the pharmacist’s license, and 26 27 28 2 In her deposition, Mandoki stated “I guess I might have said I’m going to override the two, I’m going to take from the Pyxis, but it was more like talking to myself, because I knew I couldn’t take two pills by myself with a witness from our Pyxis on the floor.” (Mandoki Dep. 88:7-13). 6 1 that nobody from the pharmacy had previously called up to the unit 2 to say the order was incorrect, Mandoki believed that the person 3 she was speaking to was a pharmacy technician and not the 4 pharmacist. (Mandoki Dep. 85:6-8, 87:13-88:1). 5 Mandoki believed her actions were authorized because she had 6 previously given patients painkillers when discharging them from 7 the ED, where she was a floating nurse.(Mandoki Dep. 73:16-74:13, 8 89:7-91:18). 9 chose to override the Pyxis system to obtain the Percocet pills. 10 11 Furthermore, Thus, allegedly upon these mistaken beliefs, Mandoki (Mandoki Dep. 93:12-94:3; Jeremias Decl. ¶ 3). Nurse Jeremias could not override the Pyxis system by herself 12 to obtain the Percocet because she only had the authorization to 13 obtain Percocet from the machine if an order was entered. (Mandoki 14 Dep. 94:8-11). 15 relatively new, Mandoki’s override privileges were required. 16 (Mandoki Dep. 94:8-22). Mandoki, in the presence of Nurse Jeremias, 17 executed the override. 18 withdrew the maximum amount of two pills she could obtain via an 19 override. (Mandoki Dep. 88:14-17). Nurse Jeremias then took the 20 pills to give to the patient. 21 did not instruct Nurse Jeremias to administer the pills to the 22 patient because it was understood that the pills were supposed to 23 go home with the patient. (Mandoki Dep. 95:1-5). 24 Mandoki executed the override of the Pyxis, the patient was 25 discharged. (Mandoki Dep. 94:23-25). Since no order was entered, and Nurse Jeremias was (Mandoki Dep. 92:25-96:3, 94:4-7). Mandoki (Mandoki Dep. 94:23-25). Mandoki Shortly after 26 At the end of Mandoki’s shift, Mandoki attended a meeting 27 where she disclosed to Crookham that she had discharged the patient 28 before midnight with the two Percocet obtained using her override 7 1 powers. 2 discussed. (Mandoki Dep. 97:22-98:25). Nothing further was (Mandoki Dep. 99:25-100:2). 3 The day after speaking with Mandoki, pharmacist Williams 4 reviewed the override report and discovered Mandoki had withdrawn 5 Percocet to provide to the patient on discharge. 6 4). 7 Williams reported the incident. (Williams Decl. ¶ (Williams Decl. ¶ 4). Upon appearing for her shift that night, Mandoki was told by 8 the day shift charge nurse that Mandoki had to go home. 9 Dep. 100:3-10). (Mandoki Mandoki refused to leave until she was told why, 10 so the day shift charge nurse told Mandoki to talk to the AC. 11 (Mandoki Dep. 100:11-13). 12 did not receive any information about why she was being sent home. 13 (Mandoki Dep. 100:18-101:9). 14 a message from Shirey, her supervisor.(Mandoki Dep. 101:7-11). 15 message indicated that an emergency happened during the previous 16 night and they would see Mandoki in Human Resources the next 17 morning. 18 time spoke with Mandoki, but did not divulge the reason for the 19 meeting the next morning. 20 Mandoki spoke with the day shift AC but When Mandoki arrived home, she found (Mandoki Dep. 101:10-16). The Shirey called again and this (Mandoki Dep. 101:16-102:1). The next day, Mandoki met with Shirey and Carie Wilkens from 21 Human Resources. 22 was told that since Mandoki had “prescribed and diverted” 23 narcotics, in violation of hospital policy, she was being 24 terminated and the incident would be reported to the Nursing 25 Board.3 (Mandoki Dep. 103:12-13). (Mandoki Dep. 102:19-103:1). Mandoki asserts she Mandoki asked Shirey and 26 27 28 3 The record belies this assertion. Mandoki was terminated for “dispensing” two tablets of Percocet in violation of hospital policy and practicing outside the scope of her nursing license. See (Mandoki Dep. 114:9-115:16; Wilkens Decl. ¶ 7; Shirey Decl. ¶ 9; Def.’s Mot. Summ. J. Exs. R, S). 8 1 Wilkens to call Dr. De Mar, Crookham, Nurse Jeremias, and Williams 2 to substantiate Mandoki’s version of the events. She alleges no 3 inquiries were made. (Mandoki Dep. 103:2-5). 4 given an Employee Counseling Memo with an erroneous version of the 5 events. 6 7 10 See (Def.’s Mot. Summ. J. Ex. S). On November 2, 2009, defendant submitted a complaint to the Nevada State Board of Nursing. 8 9 Moreover, Mandoki was (Def.’s Mot. Summ. J. Ex. T). On November 4, 2009, Mandoki filed a wrongful termination grievance with the Employee Association. (Pl.’s Opp’n Def.’s Mot. Summ. J. Ex. N). 11 On November 5, 2009, the Board notified Mandoki of defendant’s 12 assertion the Mandoki had practiced outside the scope of her RN 13 license in dispensing Percocet to a patient for home use. 14 Dep. 114:9-19). 15 (Mandoki On or about March 12, 2010, the Nursing Board determined that 16 Mandoki’s actions on October 28, 2009 did not warrant formal 17 disciplinary action. 18 Mandoki received a statement of caution that she follow the 19 policies and procedures in the different units in which she worked. 20 (Mandoki Dep. 117:4-10). 21 (Mandoki Dep. 116:21-117:3). On or about, December 29, 2010, the arbitration award relating 22 to Mandoki’s grievance was executed. 23 J. Ex. P). (Pl.’s Opp’n Def.’s Mot. Summ. The arbitrator determined that Mandoki was not 24 terminated for just cause. 25 P). However, (Pl.’s Opp’n Def.’s Mot. Summ. J. Ex. Mandoki was reinstated as an RN at the same rate of pay as a 26 charge nurse. (Pl.’s Opp’n Def.’s Mot. Summ. J. Exs. P, R). 27 Mandoki was assigned to the Oncology Department because her previous 28 position in Surgical/Orthopedics allegedly had been eliminated. 9 1 (Mandoki Dep. 147:23-148:9). Furthermore, a counseling memo was 2 placed in her file per the terms of the arbitration award. (Pl.’s 3 Opp’n Def.’s Mot. Summ. J. Ex. P; Ex. S; Mandoki Dep. 161:24-165:2). 4 Mandoki still disputes some of the facts contained in the memo. 5 (Mandoki Dep. 162:2-10). 6 After her reinstatement, Mandoki attended work for a single day 7 and then resigned because she could “not trust anyone.” (Mandoki 8 Dep. 160:19-23, 163:14-17; Pl.’s Opp’n Def.’s Mot. Summ. J. Ex. T). 9 II. Summary Judgment Standard 10 Summary judgment “shall be rendered if the pleadings, the 11 discovery and disclosure materials on file, and any affidavits show 12 that there is no genuine issue as to any material fact and that the 13 movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 14 56(c). The burden of demonstrating the absence of a genuine issue of 15 material fact lies with the moving party, and for this purpose, the 16 material lodged by the moving party must be viewed in the light most 17 favorable to the nonmoving party. Adickes v. S.H. Kress & Co., 398 18 U.S. 144, 157 (1970); Martinez v. City of Los Angeles, 141 F.3d 19 1373, 1378 (9th Cir. 1998). A material issue of fact is one that 20 affects the outcome of the litigation and requires a trial to 21 resolve the differing versions of the truth. Lynn v. Sheet Metal 22 Workers Int’l Ass’n, 804 F.2d 1472, 1483 (9th Cir. 1986); S.E.C. v. 23 Seaboard Corp., 677 F.2d 1301, 1306 (9th Cir. 1982). 24 Once the moving party presents evidence that would call for 25 judgment as a matter of law at trial if left uncontroverted, the 26 respondent must show by specific facts the existence of a genuine 27 issue for trial. 28 (1986). Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 “[T]here is no issue for trial unless there is sufficient 10 1 evidence favoring the nonmoving party for a jury to return a verdict 2 for that party. If the evidence is merely colorable, or is not 3 significantly probative, summary judgment may be granted.” 4 249-50 (citations omitted). Id. at “A mere scintilla of evidence will not 5 do, for a jury is permitted to draw only those inferences of which 6 the evidence is reasonably susceptible; it may not resort to 7 speculation.” British Airways Board v. Boeing Co., 585 F.2d 946, 8 952 (9th Cir. 1978); see also Daubert v. Merrell Dow 9 Pharmaceuticals, Inc., 509 U.S. 579, 596 (1993) (“[I]n the event the 10 trial court concludes that the scintilla of evidence presented 11 supporting a position is insufficient to allow a reasonable juror to 12 conclude that the position more likely than not is true, the court 13 remains free . . . to grant summary judgment.”). Moreover, “[i]f the 14 factual context makes the non-moving party’s claim of a disputed 15 fact implausible, then that party must come forward with more 16 persuasive evidence than otherwise would be necessary to show there 17 is a genuine issue for trial.” Blue Ridge Insurance Co. v. 18 Stanewich, 142 F.3d 1145, 1149 (9th Cir. 1998) (citing Cal. 19 Architectural Bldg. Products, Inc. v. Franciscan Ceramics, Inc., 818 20 F.2d 1466, 1468 (9th Cir. 1987)). Conclusory allegations that are 21 unsupported by factual data cannot defeat a motion for summary 22 judgment. Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). 23 III. Mandoki’s Title VII Racial/National Origin Discrimination Claim 24 Mandoki fails to establish that there is a genuine issue of 25 material fact in her discrimination claim. Federal law prohibits an 26 employer from discharging an employee on the basis of her race or 27 national origin. 42 U.S.C. § 2000e-2. The court follows the 28 McDonnell Douglas framework on summary judgment. 11 1 Under the McDonnell Douglas framework, a plaintiff must first 2 establish a prima facie case of racial/national origin 3 discrimination. 4 (1973). McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 In order to establish a prima facie case of racial/national 5 origin discrimination, a plaintiff must show (1) that she belongs to 6 a protected class; (2) she was qualified for her job and performing 7 it satisfactorily; (3) she was subject to an adverse employment 8 action; and (4) similarly situated individuals outside her protected 9 class were treated more favorably. Leong v. Potter, 347 F.3d 1117, 10 1124 (9th Cir. 2003) (citing McDonnell Douglas, 411 U.S. at 802). 11 Once plaintiff establishes her prima facie case, the burden of 12 production shifts to the employer to provide a legitimate, 13 nondiscriminatory reason for the adverse employment decision. Id. 14 If the employer offers a nondiscriminatory reason, the burden 15 returns to the plaintiff to show that the articulated reason is a 16 pretext for discrimination. McDonnell Douglas, 411 U.S. at 804. 17 “The requisite degree of proof necessary to establish a prima facie 18 case for Title VII . . . on summary judgment is minimal and does not 19 even need to rise to the level of a preponderance of the evidence.” 20 Wallis v. J.R. Simplot Co., 26 F.3d 886, 889 (9th Cir. 1994). 21 Summary judgment is not appropriate if, based on the evidence 22 in the record, a jury could conclude by a preponderance of the 23 evidence that the defendant undertook the challenged employment 24 action because of the plaintiff’s race. Id. 25 A. Mandoki’s Prima Facie Case 26 It is undisputed that Mandoki is a member of a protected class 27 since she was born in Mexico and is of Hispanic descent. 28 Dep. 10:25-11:1). (Mandoki Second, it is undisputed that Mandoki was subject 12 1 to an adverse employment action because she was terminated from her 2 employment with defendant. See, e.g., (Mandoki Dep. 123:22-124:1); 3 Coleman v. Quaker Oats Co., 232 F.3d 1271, 1281 (9th Cir. 2000). 4 Defendant, however, disputes that Mandoki was performing her job 5 satisfactorily, or was treated less favorably than individuals 6 outside of her protected class. 7 (Def.’s Mot. Summ. J., at 13) The second prima facie prong requires that a plaintiff must 8 establish that she was qualified for the position. Courts also have 9 stated that a plaintiff must offer proof that she performed her job 10 satisfactorily. See e.g. Cornwell v. Electra Cent. Credit Union, 11 439 F.3d 1018, 1028 (9th Cir. 2006). The defendant asserts Mandoki 12 was not performing satisfactorily because she dispensed drugs in 13 violation of protocol.(Def.’s Mot. Summ J., at 14). 14 The court in Villiarimo v. Aloha Air, addressed a similar 15 issue. 281 F.3d 1054 (9th Cir. 2002). In Villiarimo, the defendant 16 terminated one of the plaintiffs for an error in performing her job. 17 Id. at 1059. Plaintiff admitted to the error, however, she claimed 18 she was terminated because she was female. Id. The court was not 19 entirely certain plaintiff had made her prima facie case, even given 20 the low threshold of evidence required. Id. at 1062. The court 21 noted: 22 23 24 25 26 [a]s the district court correctly observed, it is not clear that Villiarimo has produced sufficient evidence regarding the second prong, i.e., that she was qualified for the position. See Villiarimo, No. CV-99-00252-SPK, slip op. at 7-8. Villiarimo admits that Aloha told her that she was fired because she did not perform her job satisfactorily. . . . Thus, it is not clear that Villiarimo was performing her job ‘well enough to rule out the possibility that [s]he was fired for inadequate job performance.’ 27 Id. at 1062 n. 8 (quoting Pejic v. Hughes Helicopters, Inc., 840 28 13 1 F.2d 667, 672 (9th Cir. 1988)). Nevertheless, the court went on to 2 consider the remaining steps under McDonnell Douglas. Villiarimo, 3 281 F.3d at 1062. 4 Here, Mandoki was told she was being terminated for dispensing 5 narcotics to a patient upon discharge and this amounted to a 6 violation of hospital policy and practicing outside of her nursing 7 license. (Mandoki Dep. 108:15-22, 114:12-115:1). Although Mandoki 8 has repeatedly indicated that she did not know the policy existed 9 prior to her termination, defendant has shown evidence that the 10 policy was in place at the time of the incident. (Mandoki Dep. 11 119:21-120:2; Def.’s Mot. Summ. J. Ex. K). 12 However, Mandoki has presented evidence that she met or 13 exceeded her job expectations during performance reviews, that she 14 received multiple promotions, and she had never been disciplined 15 prior to this incident. 16 H, I, J). (Pl.’s Opp’n Def.’s Mot. Summ. J Exs. F, G, Although it is not clear that Mandoki was performing her 17 job well enough to rule out the possibility that she was terminated 18 for inadequate job performance, the evidence is sufficient to show 19 that material issues of fact exist as to whether she was qualified 20 for her position at the time she was terminated. 21 Whether employees are similarly situated is usually a question 22 of fact. Hawn v. Executive Jet Management, Inc., 615 F.3d 1151, 23 1157 (9th Cir. 2010) (citing Beck v. United Food & Commercial 24 Workers Union Local 99, 506 F.3d 874, 885 n. 5 (9th Cir. 2005)). 25 Individuals are similarly situated when they have similar jobs and 26 display similar conduct. 27 634, 641 (9th Cir. 2003). Vasquez v. County of Los Angeles, 349 F.3d “The employees roles need not be 28 identical; they must only be similar “‘in all material respects.’” 14 1 Hawn, 615 F.3d at 1157 (quoting Moran v. Selig, 447 F.3d 748, 755 2 (9th Cir. 2006)). 3 the case. 4 Materiality depends on context and the facts of Hawn, 615 F.3d at 1157. The plaintiff has presented evidence that Mandoki and Nurse 5 Jeremias were similarly situated. 6 Jeremias’ jobs were similar. First, Mandoki and Nurse Both held RN licenses, both worked as 7 nurses in the Surgical/Orthopedics Unit, and both were responsible 8 for following hospital policies and procedures. 9 125:8-19). (Mandoki Dep. Second, Mandoki and Nurse Jeremias’ conduct was similar. 10 Mandoki executed the override of the Pyxis system to obtain Percocet 11 pills while Nurse Jeremias witnessed the override. 12 94:2-7). (Mandoki Dep. The override was not possible without the participation of 13 both Mandoki and Nurse Jeremias. (Mandoki Dep. 94:8-22). After the 14 pills were withdrawn, the pills were provided to the patient to take 15 home by Nurse Jeremias.(Mandoki Dep. 94:23-25). The conduct of both 16 nurses violated defendant’s internal policy of dispensing medication 17 to patients for at home use. (Def.’s Mot. Summ. J. Exs. K, L). 18 Nurse Jeremias’ discipline consisted of a written warning, while 19 Mandoki was terminated and her actions were reported to the Nursing 20 Board. (Jeremias Decl. ¶¶ 4, 5; Wilkens Decl. ¶ 8; Shirey Decl. ¶ 21 10). 22 A substantial dissimilarity is that Mandoki was Jeremias’ 23 supervisor and she made the decision to distribute the Percocet, in 24 violation of internal policy, and instructed Jeremias to dispense 25 the pills. Accordingly, Mandoki has marginally presented evidence 26 to sustain a prima facie showing of racial discrimination. 27 C. Legitimate Reasons for Termination 28 To rebut the presumption that it unlawfully discriminated 15 1 against plaintiff, defendant has offered a legitimate, 2 nondiscriminatory reason for Mandoki’s termination. Mandoki was 3 terminated for dispensing a narcotic, in violation of hospital 4 policy and had engaged in behavior outside the scope of Mandoki’s 5 nursing license. (Def.’s Mot. Summ. J. Ex. S). The dispensing 6 policy does not apply to the ED because there is an on-staff 7 physician present at all times. 8 M). (Def.’s Mot. Summ. J. Exs. K, L, Moreover, defendant has provided a disciplinary chart which 9 describes appropriate punishments in various situations. 10 Mot. Summ. J. Ex. Q). (Def.’s Here, engaging in activity outside the scope 11 of a nursing license is a major infraction, punishable by 12 termination. 13 (Def.’s Mot. Summ. J. Ex. Q). Comparatively, CTRH asserts Nurse Jeremias was less culpable 14 because she had only been an RN for four months, she consulted with 15 Mandoki regarding the Percocet and Nurse Jeremias did not execute 16 the override herself. 17 (Dinauer Decl. ¶ 10). To place Mandoki’s termination in context, CTRH asserts that it 18 has also terminated two other employees for the same offense 19 (practicing outside scope of license), both of whom were Caucasian. 20 (Wilkens Decl. ¶ 9). Furthermore, Mandoki was reported to the 21 Nursing Board by Dinauer. (Dinauer Decl. ¶ 11). According to 22 Dinauer, in the last five years, she has reported twelve other 23 employees to the Board and that were all Caucasian. (Dinauer Decl. 24 ¶ 13). 25 Accordingly, CTRH has provided a legitimate, nondiscriminatory 26 reason for Mandoki’s termination. 27 D. Pretext 28 Mandoki has not established that the defendant’s alleged 16 1 nondiscriminatory reasons were pretextual. To survive summary 2 judgment, Mandoki must produce enough evidence that a reasonable 3 factfinder would conclude: a) defendant’s alleged reason for 4 discharging her was false, or b) that the true reason for her 5 termination was a discriminatory one. Nidds v. Schindler Elevator 6 Corp., 113 F.3d 92, 918 (9th Cir. 1996) (citations omitted). To 7 prove that defendant’s motives for termination were pretextual, 8 Mandoki points to a number of instances that she claims give rise to 9 an inference of racial discrimination. 10 First, Mandoki claims that Shirey would not allow Mandoki to 11 schedule herself as a charge nurse and Shirey reprimanded Mandoki 12 for taking herself off the schedule. 13 122:23-13). (Mandoki Dep. 121:4-122:14, Second, Mandoki speaks of an incident where Shirey 14 pressured Mandoki to refrain from writing a statement to the 15 Employee Association in regards to an incident between another nurse 16 and an interpreter. (Pl.’s Opp’n Def.’s Mot. Summ. J. Ex. L). 17 Third, Mandoki states that Shirey spoke to Mandoki and another 18 Hispanic nurse in an “abusive tone” and treated them differently. 19 (Pl.’s Opp’n Def.’s Mot. Summ. J. Exs. L, K). Finally, Mandoki 20 notes that members of upper management, Shirey, Wilkens, Dinauer and 21 Molina all appear to be Caucasian. 22 (Mandoki Dep. 143:6-144:20). Mandoki also identifies other events she maintains give rise to 23 an inference of discrimination. Mandoki speaks of an incident where 24 Mandoki was accused of gossiping about other nurses. 25 130:2-133:11). (Mandoki Dep. Mandoki also claims that a “white nurse” was 26 allegedly not punished/reported to the Nursing Board for writing 27 orders for medications, which were not signed by doctors and that 28 management had provided an email incident report to said “white 17 1 nurse.” (Mandoki Dep. 133:17-135:1). Finally, Mandoki claims that 2 Obstertics nurses had been engaging in the same behavior that got 3 Mandoki terminated. 4 (Mandoki Dep. 141:3-142:19). Contrary to Mandoki’s assertions, the record before the court 5 does not give rise to an inference of racial or national origin 6 discrimination. While the record demonstrates some animus between 7 Shirey and Mandoki, there is insufficient evidence to infer that the 8 source of that animus is Mandoki’s race or national origin. In 9 fact, there is evidence that Shirey promoted Mandoki twice and 10 regularly gave Mandoki good evaluations. (Mandoki Dep. 50:5-7). 11 Moreover, there is no evidence that the members of upper management 12 ever made discriminating comments about Hispanic people, discussed 13 Mandoki’s national origin, or treated Mandoki or any other Hispanic 14 employees differently. (Mandoki Dep. 143:6-145:1). In fact, 15 Mandoki never complained of racial discrimination or harassment 16 while employed with defendant. (Mandoki Dep. 169:16-19; Def.’s Mot. 17 Summ. J. Ex. G). 18 The facts surrounding the investigation itself do not give rise 19 to an inference of racial/national origin discrimination. The 20 evidence supports an inference that, at the time of her termination, 21 CTRH had in its possession sufficient facts that plaintiff violated 22 hospital policy by dispensing narcotics to a patient for at home 23 use. Even though the Nursing Board investigation found formal 24 discipline by the Board was not necessary, and the arbitrator 25 ultimately found Mandoki’s termination to be without cause, neither 26 suggest that Mandoki’s termination was based upon race. 27 The evidence supports an inference Mandoki’s actions on the 28 night of her termination made her more culpable than the other 18 1 employees involved. Nurse Jeremias engaged in similar behavior, but 2 the evidence suggests her actions were based in part on Mandoki’s 3 guidance as charge nurse. Furthermore, the is no evidence that 4 Crookham and Williams violated any policy or procedure. 5 Aside from the incidents in which she was personally involved, 6 Mandoki’s other assertions are completely unsubstantiated by any 7 evidence whatsoever. Thus, they cannot serve as a basis for 8 inferring that CTRH’s reasons for termination were pretextual. 9 The record is not sufficient to establish a triable issue of 10 fact that Mandoki’s race or national origin was CTRH’s true reason 11 for terminating Mandoki. 12 IV. Conclusion 13 For the reasons set forth above, defendant’s motion for summary 14 judgment (#27) is GRANTED. 15 IT IS SO ORDERED. 16 DATED: This 8th day of November, 2012. 17 18 ____________________________ UNITED STATES DISTRICT JUDGE 19 20 21 22 23 24 25 26 27 28 19
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