Asah v. Ohio Department of Rehabilitation and Correction, 121018 OHCOC, 2017-00279JD

Docket Nº:2017-00279JD
Case Date:December 10, 2018
Court:Court of Claims of Ohio





No. 2017-00279JD

Court of Claims of Ohio

December 10, 2018

Sent to S.C. Reporter 1/14/19



{¶1} Plaintiff brought this action alleging a claim of racial discrimination pursuant to R.C. 4112. The issues of liability and damages were bifurcated, and the case proceeded to trial on the issue of liability.


{¶2} In 2010, plaintiff came to reside in the United States from Cameroon via the visa lottery. Plaintiff began nursing school and obtained her Registered Nursing (RN) degree in 2015. Plaintiff became a United States citizen in 2017. Plaintiffs race is African American.

{¶3} In June 2015, plaintiff applied for a nursing position at defendant, Franklin Medical Center (FMC), a facility that provides medical care to inmates. Plaintiff was hired at FMC after being interviewed by David Pennington, a white male. Plaintiff began her employment as a Nurse 1 at FMC on September 8, 2015. Plaintiff underwent a probationary review of her first three months of employment, when she was evaluated by her supervisor, Veronica White, a white female. Plaintiffs performance was rated "meets expectations" for her overall ratings summary. However, White noted that plaintiff did not meet expectations regarding the "document/record information" category. Specifically, White noted that plaintiff needed to improve her documentation efforts by slowing down so that her nurse's assessment notes would be more legible. (Plaintiffs Exhibit 3.) In February 2016, White conducted another probationary review of plaintiff where plaintiffs overall performance was rated "meets expectations." In addition, White noted that plaintiff had "improved tremendously in her documentation skills. Has implemented suggestions to slow down to allow for better follow through with fellow staff." (Plaintiffs Exhibit 4.) White stated that plaintiff "will make a welcomed addition to the FMC facility and department. Continues to progress in all staff nursing duties. Has picked up the ECW1 implementation process extremely well." (Id.)

{¶4} On October 2-3, 2016, plaintiff was assigned to work both the second and third shifts at FMC. Plaintiff began on second shift as a floor nurse with specific patients from both side A and B assigned to her care in Unit 3 North. On third shift, plaintiff was assigned as a resource nurse, where her duties included overseeing the nursing functions in Unit 3. During third shift, at approximately 12:50 a.m., plaintiff received a call from Licensed Practical Nurse Susan Hunt, who notified her that there was a discrepancy with the narcotics count in that two Tylenol 3 pills were missing from the B-side of the cabinet. Approximately two hours later, plaintiff entered the medication room and left without speaking to LPN Hunt. Hunt then entered the medication room, recounted the Tylenol 3, and discovered that the B-side pill count had increased by two, and noticed that plaintiff had signed out two, Tylenol 3 pills from the A-side of the cabinet. Hunt wrote an incident report about plaintiffs conduct. (Defendant's Exhibit A, Bates No. 34.)

{¶5} On October 6, 2016, defendant began an investigation. Both Hunt and plaintiff were interviewed about the narcotics count. That same day, plaintiff was notified that she would be reassigned to Zone B both during her regularly scheduled shift and during any overtime opportunities. (Defendant's Exhibit A, Bates No. 42-43.) Plaintiff was prohibited from administering medication and counting narcotics, and she was prohibited from acting in a lead nursing role during an investigation. (Id.) On October 18, 2016, plaintiff was placed on paid administrative leave.

{¶6} During the investigation, the October 2-3, 2016 medical records of a patient that had been assigned to plaintiff, referred to as "Patient C," were reviewed. The records were then compared against surveillance video. Plaintiff had charted an assessment of Patient C at 6:00 p.m., although surveillance video showed that she did not assess him at that time. The surveillance video showed that Patient C was talking on the telephone in the hallway at 6:00 p.m., and although plaintiff walked past Patient C, she did not examine him at that time. As a result of the investigation, which lasted approximately three months, defendant issued a Notice of Disciplinary Action, dated January 17, 2017, and advised plaintiff that she was being immediately removed from her position for three separate rule violations: 1) failure to follow post orders, administrative regulations, policies, or written or verbal directives (Rule 7); 2) falsifying, altering, or removing any document or record (Rule 22); and, 3) failure to carry out a work assignment or the exercise of poor judgment in carrying out an assignment (Rule 8). (Defendant's Exhibit A, Bates No. 2.) Specifically, defendant stated: "Nurse Asah did fail to follow the medical policies and directives regarding the proper procedure of medication administration and control by not performing a narcotic medication count per policy. The absence of the count led to an inaccurate inventory of narcotics. Nurse Asah self-admitted that she transferred two individual narcotics from A-Hall to B-Hall in [an] attempt to correct the medication count. Nurse Asah documented that she visually observed and assessed the patient wit[h] no concerns. This documentation by Nurse Asah is found to be falsified." (Id., Bates No. 3.) Plaintiffs union grieved her termination and she was ultimately placed on a Last Chance Agreement (LCA), which allowed her to remain employed but subjected her to removal if she engaged in any performance track violation in the next three years. (Id., Bates No. 4.) Plaintiffs pay was not reduced, her title did not change, and she continues to work for defendant.

{¶7} Plaintiff asserts that defendant's treatment of her was discriminatory, based upon her race, because other white nurses at FMC have engaged in comparable conduct, specifically, failing to sign out narcotics, but were not...

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