United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
G. FLEISSIG, UNITED STATES DISTRICT JUDGE.
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.
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
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.
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
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. Plaintiff signed the corrective action
form documenting Plaintiff's attendance issues, attesting
to and understanding its contents and consequences.
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.
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.
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.
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.
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.
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.
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 ...