Mealand v. ENMMC

• Decision Date: 29 August 2001
• Docket Number: No. 20,160.,20,160.
• Citation: 131 N.M. 65,2001 NMCA 89,33 P.3d 285
• Parties: Janie MEALAND, Plaintiff-Appellant, v. EASTERN NEW MEXICO MEDICAL CENTER, Defendant-Appellee.
• Court: Court of Appeals of New Mexico

33 P.3d 285

131 N.M. 65

2001 NMCA 89

Janie MEALAND, Plaintiff-Appellant, v. EASTERN NEW MEXICO MEDICAL CENTER, Defendant-Appellee.

No. 20,160.

Court of Appeals of New Mexico.

August 29, 2001.

Certiorari Denied October 18, 2001.

Chris Key, Albuquerque, NM, Keith Oas, Roswell, NM, for Appellant.

W.R. Logan, Lisa Entress Pullen, Civerolo, Gralow & Hill, P.A., Albuquerque, NM, for Appellee.

Certiorari Denied, No. 27,145, October 18, 2001.

OPINION

ALARID, Judge.

{1} The opinion heretofore filed in this case is withdrawn and the following substituted therefor. The motion for rehearing (reconsideration) is denied.

{2} This case arises out of a hospital's discharge of a registered nurse. The principal issue presented by this appeal is whether an employee handbook promulgated by the hospital gave rise to a reasonable expectation that Plaintiff would be discharged only after being afforded a fair opportunity to respond to charges of misconduct. We conclude that the evidence before the trial court established a genuine issue of fact as to whether the Eastern New Mexico Medical Center (ENMMC) employee handbook supported a reasonable expectation that Plaintiff would be discharged only after being afforded a fair opportunity to respond to charges of misconduct, and accordingly we reverse the grant of summary judgment in favor of Defendant. We also address the issue of whether Plaintiff came forward with sufficient evidence to ward off summary judgment on her claim that Defendant deprived her of property and liberty without due process of law claim. We conclude that Plaintiff's evidence created a genuine issue of fact on this claim, and accordingly we reverse the grant of summary judgment on Plaintiff's civil rights. Lastly, we consider whether the trial court's dismissal of Plaintiff's civil rights claim should be affirmed because Plaintiff failed to allege that ENMMC acted under color of state law. We conclude that Plaintiff's civil rights claim was subject to dismissal. However, we conclude that such dismissal is without prejudice and that, on remand, Plaintiff should be afforded an opportunity to replead this count.

Background

{3} The following facts are not in dispute. Plaintiff was employed as a nurse by ENMMC beginning in March 1991. Plaintiff had no individual written contract with ENMMC. During Plaintiff's employment, ENMMC had promulgated an employee handbook that included the following provisions:

SCOPE AND APPLICATION OF THIS MANUAL

The employee handbook outlines policies applicable to all employees of the organization. Nothing in this handbook is meant to create an employment contract or to guarantee the employment or duration of employment of any individual with the Medical Center. Employees may be terminated or may terminate their employment with the Medical Center at any time, subject only to applicable requirements of law. Any oral statements or promises to the contrary are not binding upon the Medical Center. This edition supersedes all previous editions.

POLICY LANGUAGE

Although statements in this handbook have been approved by the Chief Executive Officer as representing general Medical Center policy, they should not be considered absolute. Eastern New Mexico Medical Center reserves the right to modify these policies at any time to ensure ease of administration and consistent, nondiscriminatory application of policy.

DISTRIBUTION

This employee handbook is distributed to senior management, department managers, current employees and new employees at orientation.

EMPLOYEE REQUESTS FOR INFORMATION

The contents of this handbook are available for inspection by employees at any time during normal business hours. Managers and supervisors are responsible for the administration and adherence to the policies, practices and procedures presented in this guide, and for explaining them to employees in their areas.

....

PROGRESSIVE DISCIPLINE

It is the policy of the Medical Center to use a system of progressive and/or positive discipline for all employees under the level of Department Head, except in cases requiring immediate dismissal of an employee. The vast majority of our employees never require any disciplinary action. However, if it does become necessary, the type of corrective action will be determined on an individual basis by the nature of the circumstances. The progressive discipline steps apply only to non-exempt employees.

Counseling occurs all the time. This is the normal method by which supervisors counsel employees on the normal work methods or appropriate behavior. When normal counseling fails to correct a problem, progressive discipline steps usually occur. The purpose of these steps is to give employees a chance to correct their performance or behavior. The steps are: verbal warning, written warning, probation or suspension, and termination.

* Verbal Warning: Verbal warning is an oral discussion with an employee regarding the employee's behavior, performance or actions that are unacceptable and must be either improved or not repeated depending on the circumstances. Verbal warnings are documented on the progressive counseling form and placed in the employee's personnel file.

* Written Warning: A written warning is a follow-up to the verbal warning when the employee has not improved or corrected the problem. This written documentation identifies the employee's inappropriate behavior or performance and an outline of a plan for improvement that has been mapped out by the supervisor. This documentation is discussed privately between the employee and his/her supervisor, signed by both, and a copy given to the employee and one placed in his/her personnel file in Human Resources.

* Suspension/Probation: If a problem still has not been corrected and is of an incident nature (for instance, a punctuality problem where the employee keeps coming late to work) the next step would be a 3-day suspension without pay. If the problem was performance oriented, the next step would be probation.

Normal probation is 90 days, during which time the employee is provided every opportunity to comply with departmental expectations. Suspensions are without pay and employee benefits, vacation or sick leave will not accrue during the suspension.

In some extreme cases, such as gross insubordination, a supervisor may immediately suspend an employee and send that employee home regardless of shift. In these situations, the department director/manager will meet with Human Resources on the next business day to determine the next disciplinary step.

* Termination: Termination is a last resort for those employees who refuse to improve their behavior or performance despite the supervisor's attempt to counsel and provide opportunities for satisfactory job performance. However, in some rare cases due to the severity of the situation, termination may occur with little or no previous counseling. No employee will be terminated without prior review from Human Resources.

The following examples may result in disciplinary action or immediate discharge depending upon the circumstances or severity, but are not considered to be all inclusive.

* Continual tardiness and/or absence from assigned work area

* Violation of established safety rules

* Use of obscene or profane language

* Continuing unsatisfactory work performance

* Smoking in unauthorized area

* Defacing hospital property

* Failure to report occupational injuries and/or diseases to proper supervisor

* Selling, solicitation or contributions

* Acceptance of gratuities by an individual

* Refusal, or repeated failure to follow supervisor's instructions

* Fighting or disorderly conduct

* Repeated clocking early, or out late, in excess of six minutes prior to and/or following scheduled or authorized work time

* Violation of any established rules, regulations and procedures, i.e. abuse of telephone use policy

* Abuse of sick leave

* Attempting to injure others

* Theft or attempted theft

* Improper treatment of patients

* Possession of weapons on hospital property

* Gambling on hospital property

* Reporting to work under the influence of drugs or alcohol

* Possession of alcohol or unauthorized narcotics or other drugs on hospital property

* Unauthorized disclosure or falsification of patient information or other hospital information of a confidential nature

* Intentionally clocking or signing another employee in or out of work, i.e. time cards, work sheets, etc., or falsification of time cards

* Leaving the Medical Center area or assigned work station without proper permission prior to completion of the designated work shift

* Insubordination, rudeness, or abrasive conduct toward supervisors, individual employees, patients, visitors, physicians or others

* Refusing a blood or urine test will constitute admission that the employee is impaired and will be grounds for termination

* Dishonesty, stealing or destroying Medical Center property

Note: As stated elsewhere in this handbook, the 90 day probationary period is a trial period. Progressive discipline steps may not occur during this period. This period is designed for training, learning or retraining in a close role with the supervisor. If identified problems are not immediately corrected, it may be determined that the employee is not suited to work at the Medical Center and separation could occur during the 90 day probationary period.

(Emphasis in original).

{4} ENMMC provided Plaintiff with a copy of the handbook and told her that its provisions would govern her employment with ENMMC. Plaintiff was discharged by ENMMC on March 12, 1997, allegedly for calling in prescriptions for medications without physician approval.

{5} In January 1998, Plaintiff filed the present lawsuit. In her first count, Plaintiff asserted a common-law wrongful termination claim. In her second count, Plaintiff asserted that ENMMC, as "a New Mexico entity," had deprived Plaintiff of liberty and property without due process of law.

{6} In October 1998, ENMMC...