537 F.3d 596 (6th Cir. 2008), 07-3998, Russell v. University of Toledo

Docket Nº:07-3998.
Citation:537 F.3d 596
Party Name:Regina RUSSELL, Plaintiff-Appellant, v. UNIVERSITY OF TOLEDO; Randall J. McElfresh; Norine T. Wasielewski; Kristine Armstrong; and John E. Mills, M.D., Defendants-Appellees.
Case Date:August 12, 2008
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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537 F.3d 596 (6th Cir. 2008)

Regina RUSSELL, Plaintiff-Appellant,

v.

UNIVERSITY OF TOLEDO; Randall J. McElfresh; Norine T. Wasielewski; Kristine Armstrong; and John E. Mills, M.D., Defendants-Appellees.

No. 07-3998.

United States Court of Appeals, Sixth Circuit.

August 12, 2008

Argued: June 3, 2008.

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ARGUED:

Richard D. Brooks, Bailey Cavalieri, Columbus, Ohio, for Appellant.

Cheryl F. Wolff, Spengler Nathanson, Toledo, Ohio, for Appellees.

ON BRIEF:

Richard D. Brooks, Dennis D. Grant, Bailey Cavalieri, Columbus, Ohio, for Appellant.

Cheryl F. Wolff, Theodore M. Rowen, Spengler Nathanson, Toledo, Ohio, for Appellees.

Before: DAUGHTREY and MOORE, Circuit Judges; DUGGAN, District Judge. [*]

OPINION

MARTHA CRAIG DAUGHTREY, Circuit Judge.

In this employment discrimination action, plaintiff Regina Russell appeals from the district court's order granting summary judgment to the defendants, the University of Toledo, Randall McElfresh, Norine Wasielewski, Kristine Armstrong, and John Mills, on the plaintiff's claims of disparate treatment, hostile work environment, and retaliation on the basis of race, brought pursuant to Title VII, 42 U.S.C. §§ 2000e-2000e-17, chapter 4112 of the Ohio Revised Code, and 42 U.S.C. sections 1983 and 1985. Russell contends that she raised genuine issues of material fact that militate against the grant of summary

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judgment. For the reasons discussed below, we conclude that the district court did not commit reversible errors of law in dismissing Russell's claims against the defendants, and we therefore affirm the order of summary judgment.

FACTUAL AND PROCEDURAL BACKGROUND

Registered nurse Regina Russell, a long-time employee of the University of Toledo Student Medical Center, was terminated on May 19, 2005, for “failure of good behavior, gross insubordination, and neglect of duty." Russell, an African-American female, was first hired as a nurse at the center in 1992 and worked in that capacity throughout her 13-year employment with the university. That tenure was not, however, without its rough patches and its resulting disciplinary proceedings.

In fact, Russell complained that she was treated differently than other center employees and that the sole reason for such disparate treatment was her race. Specifically, in an affidavit filed in opposition to the defendants' motion for summary judgment and in her deposition testimony, the plaintiff asserted that, over the years of her employment: nurses with whom she worked expressed their beliefs that she received her job only through affirmative action programs; she was given less desirable working hours than even temporary employees; her workspace was deliberately located in the rear of the facility and was treated with less respect than the desks of other nurses; she was not permitted leave time to attend committee meetings and other functions when other nurses were; and she was disciplined more harshly than other employees who also failed to employ proper nursing methods.

Kristine Armstrong, the clinic coordinator at the Student Medical Center from 1997 through the time of Russell's termination, did not dispute that Russell often worked the latest shift at the center, that the plaintiff often used a desk at the back of the building, that Russell was denied permission to attend certain meetings and events, and that the plaintiff had received more frequent discipline than many other employees. Armstrong insisted, however, that race was never a factor in decisions affecting Russell and that legitimate considerations explained what Russell attempted to portray as discriminatory actions.

For example, the coordinator testified in her deposition that the nurses have no assigned desk but “have various schedules, various sites they work at." Referencing three of the nurses in the student medical center, Armstrong stated that “there is no Sandy desk, there is no Gay desk, there is no Regina desk." Furthermore, the late hours to which Russell was assigned resulted in part from the fact that “[s]he was the least senior nurse the entire time she was there" and from the fact that temporary contract employees could not be counted on to work those later, unsupervised hours by themselves. Armstrong's denial of the plaintiff's request for leave time to attend conferences or to work on university projects was also not race-based but a function of the need to staff the center at lunch times and at times when other nurses were already absent from the workplace.

According to the defendants, Russell's ultimate termination was, moreover, the culmination of an escalating pattern of misconduct and insubordination, as well as the inevitable result of a progressive discipline system provided for in a collective bargaining agreement that governed the plaintiff's employment. Armstrong testified that Russell failed to adhere to the center's triage policy, that she routinely

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arrived late to work in the mornings, and was chronically tardy in returning to work after lunch. She said that the plaintiff also often refused to usher patients to treatment rooms because she was addressing personal business in telephone calls or studying for her advanced degree. Consequently, Armstrong testified, the plaintiff had received verbal and written warnings from her supervisor from time to time.

In November 2003, Russell was sent for a pre-disciplinary hearing after failing to follow-up for two months on a tuberculosis skin test that had been performed on a University of Toledo student. She was also suspended without pay for five days in November 2003 for failing to triage properly a distraught student who had not slept for four days and who visited the center at the request of the university counseling services. Rather than gather relevant information from the student and arrange for him to be seen by a physician, the plaintiff sent the young man away because he did not have a pre-arranged appointment at the center. Fortunately, a supervisor witnessed the episode, found the student sobbing on the grass outside the building, and brought him back inside for consultation with one of the doctors on duty. Notification of that suspension included a written warning to Russell that “[f]urther infractions of failure of Good Behavior and University Policy may result in more severe disciplinary action up to and including termination."

In the defendants' estimation, just such further “infractions" occurred on February 15, 2005. On that date, Dr. John Mills examined a patient who had previously been sutured at another medical facility and determined that the sutures could then be removed. He asked Russell to remove the sutures, a request with which the plaintiff did not comply based on her stated position that the student's visit would have had to have been classified as a nurse's visit, rather than a doctor's visit, for her to perform the procedure. Even after Mills ordered Russell to remove the sutures, she demurred, leading Mills to report the incident in an e-mail to Randall McElfresh, the university's director of labor employee relations. In that transmission, Mills noted:

[I] have had recurrent and escalating difficulty having this nurse perform specific functions and nursing duties and have experienced general and sometimes overwhelming recalcitrance and a very disconcerting lack of professionalism, all of which ultimately impacts the level and quality [I] wish, and the medical center intends to provide. [S]adly, [I] am not alone in this experience.

On that same day, February 15, 2005, Mills and Russell were working together on a young man in respiratory distress. As explained by Mills in his deposition:

And as is routine, be it in the ER or our workplace, I gave her verbal orders; and she knows a lot of things to do anyway, routine things that she does, and we stabilized the patient eventually.

But the issue of contention was, I believe, the instruction or order more accurately to give intravenous methylprednisolone, Solumedrol is the generic name, after the IV was established. And I was writing the note, writing things out after the patient was being stabilized, and as minutes passed and the patient became stable after several aerosols and IV fluid and medications that were administered she brought the chart to me and asked me to change the order from IV to IM which stands for intramuscular. And I changed my order since she had told me that she had given it intramuscularly instead of intravenously to reflect the actual route of administration.

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As a result of the February 15 disputes involving the intravenous/intramuscular drug administration and the suture removal, the university's labor relations manager, Joseph Klep, recommended that Russell be sent for a pre-disciplinary hearing on charges of gross insubordination and neglect of duty. Mills was also disciplined by the university “for an error in judgment" for his post-treatment alteration of the patient's medical records.

Russell's disciplinary hearing resulted in a May 19, 2005, decision to terminate the plaintiff's employment with the university. Subsequently, Russell filed a charge of racial discrimination with the Equal Employment Opportunity Commission (EEOC) and received from them a right-to-sue letter. The plaintiff then timely filed her complaint in federal district court, alleging Title VII violations of disparate treatment, maintenance of a hostile work environment, and retaliation; violation of the civil rights provisions of 42 U.S.C. section 1983; a conspiracy to violate her civil rights in contravention of the provisions of 42 U.S.C. section 1985; violations of Ohio's antidiscrimination principles codified in chapter 4112 of the Ohio Revised Code; and violations of Ohio public...

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