Dupre v. Harris County Hosp. Dist., Civ.A. H-96-3280.

CourtUnited States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Southern District of Texas
Writing for the CourtCrone
Citation8 F.Supp.2d 908
PartiesDenise René DUPRÉ, Plaintiff, v. HARRIS COUNTY HOSPITAL DISTRICT d/b/a Ben Taub General Hospital, Defendant.
Docket NumberNo. Civ.A. H-96-3280.,Civ.A. H-96-3280.
Decision Date12 June 1998
8 F.Supp.2d 908
Denise René DUPRÉ, Plaintiff,
HARRIS COUNTY HOSPITAL DISTRICT d/b/a Ben Taub General Hospital, Defendant.
No. Civ.A. H-96-3280.
United States District Court, S.D. Texas.
June 12, 1998.

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Richard S. London, London Schaeffer and Patterson, Houston, TX, for plaintiff.

Mary E. Baker, Office of Harris County Attorney, Houston, TX, Bruce Stephen Powers, Office of Harris Cty. Attorney, Houston, TX, for defendant.


CRONE, United States Magistrate Judge.

Pending before the court is Defendant Harris County Hospital District's ("Harris County") Motion for Summary Judgment (# 22). Harris County seeks summary judgment on Plaintiff Denise René Dupré's ("Dupré") claims of discrimination and retaliation in violation of the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq., and intentional infliction of emotional distress.

Having reviewed the pending motion, the submissions of the parties, the pleadings, and the applicable law, this court is of the opinion that Harris County's motion should be granted.

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I. Background

On September 6, 1992, Dupré was hired by the Assistant Vice President of Perinatal Nursing — Leela Thomas ("Thomas") — to serve as a nurse in the neonatal intensive care unit at Ben Taub Hospital ("Ben Taub"). Shortly thereafter, Dupré requested "a compressed weekend schedule which meant working eight hours or more on consecutive days...." Her request was granted, resulting in Dupré's shifts regularly lasting about sixteen hours. Dupré generally worked at the hospital only on Fridays, Saturdays, and Sundays, although she would occasionally work other days. While employed at Ben Taub, Dupré was supervised by Head Nurse Pippa Andrews ("Andrews"), and subsequently by Head Nurse Felicia King ("King"). During this period, Leela Thomas ("Thomas") was the Director of Nursing.

In December 1994, Dupré took time off from work to seek treatment for depression. She was treated by Louis A. Fallace, M.D. ("Fallace"), who prescribed the medications Klonopin, Paxil, and lithium and advised her to rest. It was at this time she was diagnosed as suffering from bipolar disorder.1 Dupré provided Harris County with a Return to Work form signed by Fallace, dated December 15, 1994, which states:

This is to certify that Denise Dupré has been treated by the undersigned for an illness, from 12-8-94 to Present.

It is my impression that this patient has recovered sufficiently to return to work on or about 12-16-94.

The letter does not state the nature of the illness for which Dupré was treated, although it does identify Fallace as a physician specializing in psychiatry.

According to Dupré she informed King and Thomas of her bipolar disorder and depression around this time.2 Dupré also alleged that all of her co-workers were aware of her disability, while Thomas stated at her deposition that she was only aware that Dupré "had an attendance problem." Dupré contends that she specifically informed King that her disability restricted the amount of stress that she could endure on the job. Further, she purportedly told King that the physical fatigue associated with her condition and her medication also limited her ability to work a 16-hour shift. Dupré alleges that she requested accommodation of her condition in the form of a transfer to a low-risk nursery or a shorter shift. Dupré maintains that King refused her request and told her that no other positions were available.

Dupré contends that she also informed Thomas of these difficulties and confided that she suffered additional stress because a man who had raped her as a child — Dupré's former brother-in-law — worked in an adjacent unit. Dupré asserts that she requested a transfer to a less-stressful position in a regular nursery or a low-risk nursery, or that she be given a part-time position. Thomas allegedly refused to transfer Dupré or to place her in a part-time position, stating that there were no other nursery positions available and that the hospital did not have any part-time positions. Dupré contends that "Febe Aldana and Guadalupe Manito ... were transferred to positions which were less stressful than mine around the same time that I requested such a transfer." The affidavit of Tena Gardner ("Gardner") — Director of Human Resources for Harris County — states that the hospital's records confirm that Phebe Aldana ("Aldana") transferred from

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the neonatal intensive care unit to the newborn nursery, but not until April 17, 1995, several months after Dupré was terminated. As to Guadalupe Manito ("Manito"), the hospital's records indicate that she worked in the neonatal intensive care unit until her resignation on October 21, 1995, nine months after Dupré's termination, and, following her resignation, she was listed on the nursing registry. It is undisputed, however, that two "potentially less stressful" positions that became available on December 26, 1994, and January 2, 1995, during Dupré's tenure at Ben Taub, were posted in the emergency room. Felecia Peterson — Former Nurse Manager of the Neonatal Intensive Care Unit at Ben Taub — states in her affidavit that job listings for nurse "positions at Ben Taub were posted on the first floor of the hospital and were readily available for Ms. Dupré's review." In fact, Dupré acknowledges in her affidavit that positions in the regular and low-risk nurseries were posted in the emergency room. There is no evidence, however, that Dupré ever applied for either of these positions or for any position posted at Ben Taub.

Throughout Dupré's employment at the hospital, nurses in the neonatal intensive care unit were responsible for the care of two or three infants. On January 13, 1995, King filed an Employee Report concerning an allegation that Dupré was negligent and conducted unsafe nursing practices with respect to one of the infants under her care. Specifically, the report alleges that on January 8, 1995, Dupré "incorrectly transcribe [sic] PBS (phenobarbital) for baby Boyd. 5 mg daily was ordered but 20 mg daily was transcribed to the Kardex. The order was signed by Ms. Dupré." King filed another Employee Report on January 13, 1995, alleging that on January 8, 1995, Dupré was negligent and unsafe in her nursing practices insofar as she incorrectly hung the intravenous fluids for baby Boyd ("Boyd"). Specifically, she transposed the UVC and UAC lines.3 Dupré, however, avers that the fluid lines were correctly positioned, and that the actual problem resulted from a malfunction in the line pumps. Nevertheless, Dupré was placed on probation for ninety days, purportedly based on these two incidents. According to Dupré, the stated reasons are a mere pretext, and her disability and absences from work mused by her illness were the actual motivating factors for her being placed on probation. She contends that Harris County's refusal to investigate the true cause of the fluid lines incident is based on her disability. Dupré argues that "a nurse who was not disabled would not have been placed on probation, would have been given a real investigation of the incident...." Dupré further alleges that King "constantly harassed and questioned" her about her medical condition and informed her that she could not miss any more work during the probationary period.4 In addition, Dupré perceived King as being "more distant," "very hurried," uncomfortable around her, and not as friendly as she had been.

Dupré's probationary period was scheduled to run from January 24, 1995, to April 23, 1995. Dupré confirmed at deposition that she was notified that any incidents of negligence or unsafe practices during this period would result in further disciplinary action, including termination. On January 25, 1995, King filed another Employee Report, in which she alleged that on January 22, 1995, Dupré and another nurse, Adrian DeJohnnette ("DeJohnnette"), "did not do the change-of-shift chart check" and that Dupré did not do the 24-hour chart check. Specifically, Boyd was to be fed 6.7 cc every three hours, but a mistranscription by DeJohnnette recorded the order as 6.7 cc every hour.5

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Dupré contends, however, that she checked the chart, but failed to notice that the dosage was to be administered every three hours rather than every hour. As a result of Dupré's oversight, DeJohnnette's mistranscriptions remained undetected, and "Boyd received the incorrect rate of gastric feed flow for another eight hours." Consequently, Boyd required additional corrective care, including a chest x-ray, the administration of oxygen, and the administration of Lasix.

After the Employee Report was filed, Dupré attended a meeting with King and Thomas during which they discussed the incident. Prior to the meeting, King informed Thomas that Dupré complained of being depressed. Harris County terminated Dupré on January 30, 1995, purportedly for failing to discover DeJohnnette's error. It also subjected her to peer review and reported her alleged misconduct to the Texas Board of Nurse Examiners. DeJohnnette received a less-severe discipline — suspension for three days and ninety-days probation — purportedly because she was not already on probation. Dupré asserts that, were it not for her disability, she "would have not been terminated when another nurse had mistranscribed feeding orders."

After her termination, Dupré filed a grievance with Harris County. A grievance hearing was held on February 21, 1995. On February 24, 1995, Thomas sent a letter to Richard London — Dupré's attorney — stating:

I have considered all of the information presented at Ms. Dupré's grievance hearing on February 21, 1995. Because of the significance of the multiple errors from a medical point of view, I have decided to uphold the termination.

The termination also was upheld at the next step of the grievance procedure. On April 4, 1995, Harris...

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