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Wheeler v. Georgetown University Hosp., No. 14-7108 (D.C. Feb. 12, 2016)

The D.C. Circuit addresses an all-too-common scenario where the employer - without apparent explanation - arguably comes down hardest on the Black employee rule-breaker. The court reverses summary judgment in a case involving nurses, where the Black nurse was allegedly singled out and fired for violations of protocol during a single shift.

Wheeler v. Georgetown University Hosp., No. 14-7108 (D.C. Feb. 12, 2016): plaintiff Wheeler, a Clinical Nurse, had worked for the hospital since 2006. She was reported to the hospital by her boss, Nurse Hollandsworth, for the following alleged violations during a December 27, 2009 shift -

"(1) a report that Nurse Wheeler had left a patient's IV bag empty, that the IV was set up to deliver the wrong medications, and that the patient had not been given two prescribed doses of insulin; (2) a report that Nurse Wheeler had failed to properly record patient vital signs for at least two of her patients, had failed to provide a temperature probe monitor to a patient, and had failed to properly set a blood pressure cuff on a patient; (3) a report that one of Nurse Wheeler's patients, who was unable to make intentional movements or reposition herself without assistance, was left slouched over in bed with her head rested uncomfortably against the side rail, resulting in the patient being soaked through to her gown and sheets in her own oral secretions, that Nurse Wheeler did not check in on the patient during the five hours the patient's family was in the room, and that later the patient was once again found slumped against the rail and also caked in dry stool; and (4) a report that an other of Nurse Wheeler's patients had been discovered lying in dried stool, also with an empty antibiotic bag hooked up to the running heparin drip."

Wheeler was immediately suspended, while Nurse Hollandsworth conducted an investigation into the allegations, interviewing the other shift nurses and obtaining written statements. Nurse Hollandsworth and Clinical Director Howell then fired Wheeler on January 8, 2010 actions that supposedly "reflected a serious lack of clinical judgment and jeopardized the health and safety of [the Hospital's] patients."

Although the district court granted summary judgment on Wheeler's Title VII case, the D.C. Circuit reverses. Wheeler focused her argument on "discrediting the Hospital's justification for her termination by showing that nurses of other races - primarily white nurses - were not disciplined as severely for similar conduct." The panel holds that plaintiff presented a genuine dispute on this issue.

Wheeler presented evidence that six other, non-Black nurses (identified by initials) also under the supervision of Hollandsworth and Howell were not terminated for similar violations of protocol. These "included calculating and administering the wrong dosage of heparin (W.L., B.D., and C.R.), failing to document a patient's changed mental status and delaying the provision of treatment (K.M.), withholding prescribed medication in contradiction to the doctor's orders (C.S.), and failing to provide a patient with a needed bite block (A.A.)."

The panel holds that Wheeler's comparative evidence meets the ordinary standards of proof under the McDonnell Douglas rubric. The other nurses were in the same unit, managed by the same individuals. for five of the six putative comparators, "There is at least a dispute of fact as to whether other nurses also subject to supervision and discipline by Hollandsworth, Howell, as clinical director, or GUH Human Resources should be viewed as similarly situated to Wheeler in this respect."

The panel also holds that Wheeler presented a genuine dispute about whether the other nurses' violations were of "comparable seriousness." It restates that "[i]n order to be considered similarly situated, it is not necessary that the comparators engaged in the exact same offense." Wheeler obtained testimony from the Hospital's corporate representative that even one act of "gross misconduct" could lead to termination by the Hospital without prior discipline, and each of the comparators were written up for gross misconduct. Some of the comparators, like Wheeler, even had prior write-ups in their file.

In particular, the panel observes that - in discovery - the hospital identified a list of other nurses disciplined by Nurse Hollandsworth, none of whom were white. The jury could thus conclude that Nurse Hollandsworth "had a history of only disciplining non-white nurses, and the Hospital did not terminate any of the white nurses who allegedly committed the same class of infraction as Wheeler." In sum, the panel concludes that There was enough evidence to allow "a rational and reasonable jury [to] find these [non-Black] nurses" who were not terminated "to be comparable to Nurse Wheeler."

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