Getz v. Board of County Com'Rs

• Decision Date: 08 March 2002
• Docket Number: Civil Action No. 01-2116-KHV.
• Citation: 194 F.Supp.2d 1154
• Parties: Vicky L. GETZ, Plaintiff, v. The BOARD OF COUNTY COMMISSIONERS OF THE COUNTY OF SHAWNEE, KANSAS; and Barbara Fisher and Theresa Schwartz, in their individual capacities and as employees of Shawnee County, Kansas, Defendants.
• Court: U.S. District Court — District of Kansas

194 F.Supp.2d 1154

Vicky L. GETZ, Plaintiff, v. The BOARD OF COUNTY COMMISSIONERS OF THE COUNTY OF SHAWNEE, KANSAS; and Barbara Fisher and Theresa Schwartz, in their individual capacities and as employees of Shawnee County, Kansas, Defendants.

Civil Action No. 01-2116-KHV.

United States District Court, D. Kansas.

March 8, 2002.

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Ira Dennis Hawver, Ozawkie, KS, for Plaintiff.

Richard V. Eckert, Jonathan C. Brzon, Office of Shawnee County Counselor, Topeka, KS, Ron D. Martinek, Parker & Hay, LLP, Topeka, KS, for Defendants.

MEMORANDUM AND ORDER

VRATIL, District Judge.

Plaintiff alleges that defendants terminated her employment at the Shawnee County jail because she reported nursing practice violations there. The matter is before the Court on Defendants' Motion For Summary Judgment (Doc. # 24) filed December 3, 2001. For reasons stated below, the Court sustains defendants' motion in part.

Factual Background

The following facts are either undisputed or, where disputed, construed in the light most favorable to plaintiff.¹

Plaintiff is a registered nurse ("RN"). On April 17, 2000, the Shawnee County Health Department ("Health Department") hired plaintiff to provide nursing services at the jail which the Shawnee County Department of Corrections operated in Topeka, Kansas. Some three months later, on July 28, 2000, the Health Department terminated plaintiff's employment. While employed, plaintiff was an at-will employee within a 120 day probationary period defined in the County policy handbook. Section 6.1 of the Shawnee County Personnel Rules and Regulations states that "the probationary period shall be considered as a working tests [sic] of the employee's ability to perform adequately in the position to which he/she is appointed."² Section 6.3 of the Shawnee County Personnel Rules and Regulations states:

Prior to the expiration of an employee's original or extended probationary period, the appointing authority shall notify the employee and the Director of Human Resources that the employee will be dismissed for [sic] demoted, or that the probationary period has been extended, or that the employee has been given permanent status. Prior to any action, a performance evaluation shall be made.

During her employment, plaintiff's superiors included Barbara Fisher, medical staff member and Nursing Team Leader of the Department of Corrections, and Theresa Schwartz, medical staff member and manager of Adult Field Services for Shawnee County. One of plaintiff's co-workers was Jan Petit, a medical staff member and licensed practical nurse ("LPN") for Shawnee County. At all relevant times, Fisher, Schwartz and Petit acted within the scope of their authority as employees of Shawnee County.

Defendants hired plaintiff for the evening shift but started her on the day shift for a two week orientation. Plaintiff's orientation consisted of a 30-minute medication dispensing tour with Petit and a 15-minute orientation with Jane Underwood, who showed plaintiff where medication was stored. Plaintiff believed that an LPN could train a RN but, because LPNs can only practice nursing under the supervision of a doctor, dentist or RN, plaintiff objected to being supervised by an LPN. See Getz Deposition (Exhibit 22) in Plaintiff's Response (Doc. # 31) at ¶ 10 (citing K.S.A. § 65-1113). Petit and Underwood told Fisher that they were having difficulty orienting plaintiff and that she would not follow directions and was not receptive to jail procedures. Both Petit and Underwood indicated an unwillingness to work with plaintiff because of her uncooperative demeanor.

Plaintiff's orientation period ended early because she balked at accepting substandard nursing procedure instructions in order to fit in with the nursing staff. Jail nurses were brusque and unfriendly to plaintiff because she did not accept substandard nursing procedures. When plaintiff began working on the night shift, she contacted Fisher and advised her that the job was not really a match for her and that Petit and Underwood were the most disgusting, nonprofessional nurses with whom she had ever worked. Plaintiff did not have to work the night shift with Petit, but she went to work 30 minutes early to receive verbal nursing reports from her because Petit did not put reports in writing.

Before and throughout plaintiff's employment, the nursing staff crushed medications that were given to inmates.³ A nurse had previously questioned the lack of a written policy regarding crushing of medications⁴ and Schwartz and Fisher had met to draft protocols on the issue.⁵ During plaintiff's employment, however, she did not see any evidence that Fisher had written a protocol on crushing of medication. Plaintiff was aware of the unwritten policy, however, and she disagreed with it on professional grounds. Fisher told plaintiff that she had already been presented with information about the hazards of crushing certain medications and that they were not going to discontinue crushing medication at that time. Plaintiff spoke with Schwartz about the medication crushing policy and nursing protocols and Schwartz advised plaintiff that the process of reviewing those issues had already started.⁶

In early July, plaintiff told Fisher that she and Petit were beginning to have some real issues. On July 12, 2000, plaintiff met with Fisher, Schwartz and Petit to discuss her concerns about the nursing staff and Petit's lack of professionalism. Plaintiff did not send written documentation of her concerns to Schwartz or Tom Merkel, but she did document concerns about Petit's lack of communication and competence to Fisher and Sgt. Charles Walker of the Department of Corrections.⁷ Plaintiff did not discuss her concerns with Dr. Norris, the medical director of the jail, because she did not want to cause "bad air" and "unfriendliness, total unprofessionalism, [and a] marked angry atmosphere" between her and Petit. Getz Deposition (Exhibit 2) in Defendants' Exhibits at 59:16-19. Plaintiff claims that Petit habitually violated nursing regulations by dispensing medication without a physician's orders or in an untimely fashion.

As an example of the latter practice, i.e. dispensing medication in an untimely manner, plaintiff cited Petit's practice of giving sleep medication too early in the day so that when an inmate attended therapy meetings he was not wholly alert. Plaintiff claims that timing of medication was an issue for various inmates, including Robert Barnes, John Bradshaw, Jack Gleason, Daniel Gonzales, Duane Jimerson, Kevin Mitchell, Rico Richardson and Jack Ross. As an example of the former practice, plaintiff states that Petit discontinued a patient's medication on July 2 and started him on another medication without a doctor's authorization. On July 3, Petit switched the patient back to the earlier medication. Plaintiff admits that Dr. Horne, a jail psychiatrist, signed off on the medication change at some point, and that it would be reasonable for Petit to rely on Dr. Horne's signature in changing an inmate's medication. The incident concerned plaintiff, however, because it showed both communication problems (Petit had not issued a nursing report regarding the medication change and the doctor's medication record did not order her to stop the old medication and start the new one) and also a bad health issue for the inmate. Plaintiff believed that this was bad protocol in nursing practice. Plaintiff also recalled that after the medication change, the inmate suffered an inability to sleep, ringing in his ears and increased psychosis in the form of voices.⁸

Plaintiff also claims that Petit habitually engaged in bad nursing practices by denying inmates their medication or treatment. As an example of denial of medication, plaintiff cites the case of inmate John Hedrick, who arrived at the jail on July 17, 2000 and brought six medications with him. The medications, which were all 30 day supplies that had been filled between May 25 and May 30, 2000, were more than 30-days old and thus were not current. Initially, Petit decided to withhold Hedrick's medication because the dates on the bottles were not current. Plaintiff knows that current medication dates can be a concern, but she believed that it was unreasonable to rely on medication bottle dates because inmates could use old bottles for new medicines. On July 23, 2000, Petit and plaintiff had a conversation in which Petit determined that they should wait to dispense the medication until Dr. Horne reviewed the situation. Plaintiff believes that Petit's stated concerns about the medication dates were a pretext for her decision to either harm Hedrick or not put forth the effort to give him the proper medication. Plaintiff, however, did not make any notations that Hedrick suffered adverse effects for lack of medication. As examples of denial of treatment, plaintiff cites inmate Chris Hodges, who did not receive treatment for an open head wound, and inmate Earnest Taylor, who did not receive proper antibiotic treatment.

Plaintiff also alleges that nursing procedures caused inmates to refuse medication because it was not consistently the same color from day to day. Specifically, inmates Steve Lake and Patrick Deal told plaintiff that they did not want to take further medication since, because the medications were crushed, the color changed from day to day and they could not verify that they were getting the correct medications.

As another instance of disregard for the well-being of inmates, plaintiff cites an incident on July 17, 2000, when inmate Robert Ladwig intentionally re-opened a wound, ruptured an artery and pumped blood on the walls and floor of his cell. Plaintiff believed that the jail did not have the ability to deal with Ladwig's wound or psychosis, and she ordered that an ambulance take him to a hospital. After the ambulance arrived, Fisher went to Ladwig's cell and said that she would...