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Allen v. Mercy Hospital East Communities

United States District Court, E.D. Missouri, Eastern Division

October 1, 2019




         This matter is before the Court on Defendant Mercy Hospital East Communities d/b/a Mercy Hospital St. Louis's motion for summary judgment. Plaintiff Latisha Allen, who is African American, alleges that Defendant terminated her based on her race, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e, et seq. For the reasons set forth below, Defendant's motion will be granted.


         Viewing the facts and all reasonable inferences in the light most favorable to Plaintiff, for purposes of the summary judgment motion, the record establishes the following. Plaintiff was employed by Defendant as a surgical technician from June 22, 2015, until she was terminated on June 16, 2017. During her employment, Plaintiff reviewed and acknowledged Defendant's employment policies, including its anti-harassment policy, recording and social media policies prohibiting recording any images of patients or patient specimens, time and attendance policy, code of conduct, and corrective action policy, which includes progressive discipline. The usual progression of discipline included verbal coaching or counseling, followed by a verbal warning, followed by a written warning, then a final warning, and then termination.

         On February 22, 2016, Plaintiff received verbal counseling for a specimen error from Laura Truskowski, her supervisor. On March 7, 2016, Plaintiff received verbal counseling for attendance issues. She again received verbal coaching for sleeping at work on April 25, 2016, although Plaintiff denies she was sleeping.

         On August 4, 2016, Plaintiff received an annual employee evaluation rating her overall performance as 4.54 out of 5. On March 7, 2017, Plaintiff received a corrective action form signed by Truskowski and Truskowski's supervisor, Antoinette “Toni” Kanne, for taking a personal call in the operating room suite, for not being in the operating room to which she was assigned during a procedure, and for being late to her shift. Plaintiff denied and continues to deny the allegations, and she did not sign the written warning.

         On April 10, 2017, Plaintiff's co-workers reported to Truskowski that Plaintiff was not present in her assigned area, delinquent in returning from her breaks, and misunderstanding job responsibilities. On April 13, 2017, Plaintiff received a corrective action form issuing a final warning from Kanne after she had further issues with attendance.[1] Plaintiff signed the corrective action form documenting Plaintiff's attendance issues, attesting to and understanding its contents and consequences.

         On June 9, 2017, an evening shift supervisor reported that Plaintiff failed to return to her assigned area in the operating room following her lunch break. Truskowski discussed the issue with Plaintiff and reminded her that she was on final warning status. Later that day, a co-worker reported that Plaintiff was being rude to a new orientee, creating an uncomfortable environment. Plaintiff denies this claim.

         On June 12, 2017, Truskowski sought guidance from Kanne regarding how to handle Plaintiff's behavior. Kanne informed Truskowski, the executive director of surgical services, and a senior human resources manager that Plaintiff was “perilously close to termination” due to her continued performance and behavioral issues.

         On June 13, 2017, Plaintiff took a photograph of a patient specimen on her personal cell phone and showed it to her co-workers. The specimen had been removed from a patient during a pediatric surgery. It is undisputed that Plaintiff did not have consent or authorization to take the photograph, and her action violated Defendant's policies. Plaintiff in her deposition admitted that she was not aware of any other surgical technologist or nurses taking photographs of patient specimens. Plaintiff contends that she deleted the photo and did not post it to social media.

         On June 14, 2017, Plaintiff called a surgeon “retarded” during a procedure in an operating room. Plaintiff does not dispute the incident but claims that the comment was made “in immediate response to a comment [the surgeon] made to a female co-worker.” Plaintiff's Affidavit, ECF No. 62-2 at ¶ 7. Specifically, the surgeon asked whether Plaintiff's co-worker was “wearing panties, ” and Plaintiff replied, “are you retarded?”. Id. Truskowski was informed about Plaintiff's behavior that day. Defendant presented affidavits from its supervisory and human resources employees stating that calling anyone “retarded” at work is unprofessional, violates Defendant's policies, and warrants corrective action.

         Based upon Plaintiff's actions of taking a photograph of a patient specimen and name-calling, Plaintiff's employment was terminated on June 16, 2017. Because Plaintiff was on final warning status at the time of both events, she was terminated for exceeding the disciplinary threshold.

         Plaintiff believes that her termination was racially-motivated. In support, she submits photographs taken by her Caucasian co-workers and supervisors in patient areas and posted to social media. Plaintiff contends that these photographs violate Defendant's social media policy, yet none of the employees was disciplined for their violations. Plaintiff admits, however, that none of the photographs contain images of patients or patient specimens. She also admits that she does not know the disciplinary history of these employees.

         Defendant argues that violations of Defendant's policies or other unprofessional, inappropriate, or problematic behavior while an employee is on final warning status will usually result in that employee's termination. It submitted evidence that, since 2015, Defendant has discharged seven surgical technologists for the same reason as Plaintiff, i.e. reaching the disciplinary threshold. Of the seven discharged, five were Caucasian. Defendant also introduced evidence that Plaintiff's supervisor had recommended and ...

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