940 F.2d 662 (6th Cir. 1991), 90-4069, Ruth v. Children's Medical Center
| Citation | 940 F.2d 662 |
| Party Name | Daniel P. RUTH, Plaintiff-Appellant, v. The CHILDREN'S MEDICAL CENTER, Defendant-Appellee. |
| Case Date | August 08, 1991 |
| Court | United States Courts of Appeals, U.S. Court of Appeals — Sixth Circuit |
Page 662
Editorial Note:
This opinion appears in the Federal reporter in a table titled "Table of Decisions Without Reported Opinions". (See FI CTA6 Rule 28 and FI CTA6 IOP 206 regarding use of unpublished opinions)
On Appeal from the United States District Court for the Southern District of Ohio, No. 89-00465; Mery (M).
S.D.Ohio
AFFIRMED.
Before RALPH B. GUY and ALAN E. NORRIS, Circuit Judges, and BAILEY BROWN, Senior Circuit Judge.
PER CURIAM.
Plaintiff, Daniel P. Ruth, brought this action under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., alleging discriminatory discharge. Defendant, The Children's Medical Center (CMC) in Dayton, Ohio, terminated plaintiff's employment as a pharmacist on the grounds that plaintiff failed to check medications prepared by pharmacy technicians. Plaintiff, a male homosexual, alleged disparate treatment based on sex, asserting that female employees were not discharged for committing comparable infractions. The magistrate granted summary judgment in favor of defendant on the ground that plaintiff failed to present evidence sufficient to establish a prima facie case of discrimination. Ruth appeals from the grant of summary judgment. 1 For the reasons set forth below, we affirm.
I.
A review of the record demonstrates the following underlying facts. CMC operates a pharmacy that is staffed 24 hours a day by pharmacists and pharmacy technicians. Pharmacy technicians are not pharmacists nor trained in pharmacy; they work under the direction of pharmacists who, under state law, have the duty of checking the work of the pharmacy technicians. 2 At CMC, pharmacists supervising pharmacy technicians must verify product selection, preparation, and labeling, and check that the product corresponds with the physician's order for the proper patient.
Among other duties, pharmacists and pharmacy technicians are responsible for the medication carts used throughout defendant's facility. Medication carts contain all of the medications needed for patients on the hospital's floors for a 24-hour period. The preparation and ultimate delivery of the medication carts involves a five-step process: (1) the pharmacist enters the medication order into the computer; (2) the first shift pharmacy technician prepares the medication doses for the medication cart; (3) the second shift pharmacist checks the doses; (4) the third shift technician verifies the doses as he or she fills the medication cart; and (5) the third shift pharmacist checks the medication cart to verify that everything is correct. The medication carts are then delivered to the appropriate floors throughout the hospital.
CMC employed plaintiff as a third shift pharmacist. Plaintiff acknowledged in his deposition testimony that, as a staff pharmacist working the third shift, it was his responsibility to, inter alia, supervise the third shift technician's work, as well as to check the medication carts before they left the pharmacy for delivery to the various hospital floors.
At all times relevant to this action, Diane Gary was CMC's Director of Pharmacy. As director, Gary's primary responsibilities were managerial--she managed personnel, the budget, the outpatient pharmacy, and the poison control center. She was also responsible for staff development and education, and on rare occasions Gary performed the duties of a staff pharmacist working in the pharmacy itself.
On June 26, 1988, Kevin Phipps, a third shift pharmacy tech who frequently worked with plaintiff, complained to Gary that plaintiff regularly failed to check the medication cart, the fifth step in the five-step process for processing and delivering medications to the hospital's patients. According to Gary's deposition testimony, Phipps "relayed incidents of how he would prepare the doses and ask [Ruth] to check them and [Ruth] would say I trust you, send them up." Gary testified that Phipps told her this had been happening "for a fairly long period of time." (App. 158). Phipps, in his own deposition, testified that Ruth would leave the department or talk on the phone for extended periods of time and that Ruth's failure to check the medication cart and medication orders was "almost a nightly occurrence." (App. 177).
Ruth challenged his employment termination through CMC's internal grievance procedure, and the termination was upheld at every stage of the proceedings. Plaintiff subsequently filed a complaint with the Ohio Civil Rights Commission (OCRC) and the Equal Employment Opportunity Commission (EEOC), alleging that defendant had discriminated against him on the basis of sex because Diane Gary, a female employee, had also failed to check medications but was not fired for her error. Plaintiff also alleged that he was subjected to sexual harassment and intimidation because of his sexual preference. The EEOC adopted the OCRC's finding that the evidence obtained during investigation did not establish a violation of Title VII and issued plaintiff a notice of his right to sue defendant in district court.
Plaintiff thereafter filed this action alleging that defendant discriminated against him on the basis of sex in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. The parties consented to referral of the case to the magistrate, and, following discovery, defendant moved for summary judgment.
In his memorandum in opposition to defendant's motion for summary judgment, plaintiff claimed that he had been the target of reverse sex discrimination, and he alleged three instances in which defendant had treated him differently than similarly situated females. First, Ruth alleged that he was disparately treated, in December 1986, when he was given a final written warning based upon a sexual harassment complaint filed against him by a pharmacy technician. The warning, signed by plaintiff, stated that "a sexually intimidating environment was created" due to behavior that co-workers considered as offensive. (App. 143). Ruth maintained that the incident involved a one-time, off-color comment that offended a technician. Yet, according to Ruth, when he reported to the Director of Human Resources instances of sexual harassment directed at him because of his homosexuality, he never received any follow up regarding his complaint. Ruth argued that female and male employees alike have the right to work in an environment free of sexual harassment and that the employer has an obligation to investigate all complaints equally.
As a second example of disparate treatment, Ruth alleged that, in April 1987, defendant gave him a final written warning for a medication error, while the nurses who administered the particular medication to the infant patient were only counseled. Further, Ruth cited an instance where a female pharmacist was only counseled when she made a medication error. Ruth argued that pharmacists and nurses should bear equal responsibility for medication errors and that all pharmacists who make medication errors should be equally disciplined for similar errors.
Finally, as a third example of disparate treatment, Ruth pointed to an instance where Diane Gary, when she was covering a shift in the pharmacy, forgot to check medications that were supposed to be checked by the second shift pharmacist. Plaintiff argued that Gary's error was no different than his failure to check medications, yet Gary was not similarly disciplined. Plaintiff claimed that the three instances of different treatment constituted a pattern of discriminatory acts sufficient to establish a prima facie case of reverse sex discrimination. Throughout his argument, plaintiff also contended that his case revealed defendant's practice of treating male homosexuals differently than similarly situated females.
In reply to plaintiff's arguments, defendant argued that the situations cited by plaintiff did not involve similarly situated employees. Defendant argued that it is rare that Gary fills in as a staff pharmacist and that she only does so when there is a heavy workload or other problem. According to Gary's affidavit, her mistake was a one-time, unintentional oversight, not a series of willful omissions like Ruth's errors. According to Gary, she had volunteered to check the medications that were supposed to be checked by the second shift pharmacist, and her error, unlike Ruth's repeated omissions at the final stage of inspection, involved step three in the five-step process. Gary further stated that she never failed to check the medication cart at the final step in the five-step process.
Although CMC acknowledged that a female pharmacist was only counseled for making a medication error, defendant maintained that the error was dissimilar to plaintiff's error in dispensing phenobarbital. Lois Fangman, the female pharmacist at issue, dispensed five grams of Azactam when five grams of Azlocillin had been ordered. Defendant presented an affidavit from Gary's successor as Director of Pharmacy, John Van Eeckhout, wherein Eeckhout stated that both medications are penicillin-type products used for treating essentially the same infections and that the consequence to the patient from Fangman's error was insignificant.
Concerning Ruth's allegation that his complaints of sexual harassment were treated less seriously than complaints filed by females, defendant submitted the affidavit of Karen Borgert, defendant's Employee Relations Consultant. Borgert stated that at no time did Ruth ever register a formal complaint of sexual harassment. Rather, Ruth approached Borgert to complain that a female security guard was spreading rumors about Ruth's sexual preference and Ruth's relationship with another male employee. According to Borgert, after discussing...
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