Powell v. Baptist Mem'l Hosp.

Decision Date22 February 2023
Docket Number2:20-cv-02856-JTF-atc
PartiesSHELIA POWELL, Plaintiff, v. BAPTIST MEMORIAL HOSPITAL and TARA ETTER, Defendants.
CourtU.S. District Court — Western District of Tennessee

REPORT AND RECOMMENDATION TO GRANT MOTION FOR SUMMARY JUDGMENT

ANNIE T. CHRISTOFF, UNITED STATES MAGISTRATE JUDGE

Before the Court by order of reference[1]is Defendant Baptist Memorial Hospital's (Baptist) Motion for Summary Judgment,[2]filed August 15, 2022. (ECF No. 66.) Pro se Plaintiff Shelia Powell filed her response to the motion on September 19, 2022. (ECF No. 69.) With leave of Court (ECF No. 74), Powell submitted additional support for her response (ECF No. 70). After being granted an extension of time and leave to file additional pages (ECF Nos 73, 78), on October 11, 2022, Baptist filed its response to Powell's statement of facts (ECF No. 76), and on October 12, 2022, Baptist filed its reply brief (ECF No. 79). Judge Fowlkes denied Powell's motion for leave to file a sur-reply. (ECF Nos. 82, 84.) For the reasons stated below it is recommended that the motion be granted in its entirety.

PROPOSED FINDINGS OF FACT

As a threshold matter, the Court must address which facts are undisputed for purposes of ruling on the motion. Contemporaneous with its motion, Baptist filed a statement of thirty-four undisputed facts. (ECF No. 66-2.) Baptist contends that Powell's response to those facts (ECF No 69-2) violates Local Rule 56.1(b) by “fail[ing] to respond to each fact set forth in Defendant's statement of undisputed material facts in any way to allow the Court to assess which facts she does and does not dispute.” (ECF No. 76, at 2.) Baptist asserts that Powell's failure to specify which facts are disputed or why warrants deeming them admitted for the purpose of the summary judgment motion. (Id.) Baptist further argues that, to the extent Powell's own statement of disputed facts exceeds the five-page limit imposed under Local Rule 56.1(b), those facts should be disregarded. (Id.)

Powell has indeed failed to follow Local Rule 56.1(b), which provides:

Any party opposing the motion for summary judgment must respond to each fact set forth by the movant by either:
(1) agreeing that the fact is undisputed;
(2) agreeing that the fact is undisputed for the purpose of ruling on the motion for summary judgment only; or
(3) demonstrating that the fact is disputed.
Each disputed fact must be supported by specific citation to the record. Such response shall be filed with any memorandum in response to the motion. The response must be made on the document provided by the movant or on another document in which the non-movant has reproduced the facts and citations verbatim as set forth by the movant. In either case, the non-movant must make a response to each fact set forth by the movant immediately below each fact set forth by the movant.

Powell's response to Baptist's undisputed facts contains seventy-one numbered paragraphs. (ECF No. 69-2.) It is not made on the document provided by Baptist, or a facsimile of that document, as the rule requires. This Court takes a dim view of violations of the Local Rules and has deemed facts admitted when a party fails to follow the requirements of Local Rule 56.1. Nixon v. Hardin Cnty. Bd. of Educ. 988 F.Supp.2d 826, 829-30 (W.D. Tenn. 2013).

Powell's submission is not a mere technical violation of the Local Rules. Instead, her response is numbered in such a way as to make it nearly impossible to discern which facts she is admitting, admitting merely for the purpose of the motion, or disputing, and what authority she is relying on to demonstrate that certain facts are, in fact, disputed. And it appears that she has not responded to some of Baptist's facts at all. The Court is not required to sift through pleadings to determine if the non-moving party has sufficiently responded to the statement of undisputed material facts. Akines v. Shelby Cnty. Gov't 512 F.Supp.2d 1138, 1147 (W.D. Tenn. 2007) (citing Featherston v. Charms Co., No. 04-2157, 2005 WL 1364621, at *1 n.1 (W.D. Tenn. May 10, 2005)).[3]

To the extent Powell has submitted additional undisputed facts of her own within that document, that submission is similarly deficient. Powell's combination of her response to Baptist's statement of undisputed facts with her own statement of undisputed facts renders determination of where one ends and the other begins impossible. (See ECF No. 69-2.) Under Local Rule 56.1(b),

the non-movant's response may contain a concise statement of any additional facts that the non-movant contends are material and as to which the non-movant contends there exists a genuine issue to be tried. Each such disputed fact shall be set forth in a separate, numbered paragraph with specific citations to the record supporting the contention that such fact is in dispute.
Memoranda in opposition to motions for summary judgment shall not exceed 20 pages without prior Court approval. A non-movant's statement of additional facts shall not exceed 5 pages without prior Court approval.

Again, Powell's statement of additional undisputed facts does not comply with these dictates.

The Court has, however, an interest in deciding this case on its merits and may consider “certain of [plaintiff]'s offered responses despite their violation of the Local Rules.” Golden v. Freddy's Frozen Custard & Steakburgers, No. 2:20-cv-02805-JTF-cgc, 2022 WL 5237271, at *1 (W.D. Tenn. Oct. 5, 2022). Thus, as in Golden, in any instance where Powell “denies” a fact but does not cite to the record, that fact will be considered undisputed for the purposes of ruling on the motion, to the extent it is otherwise supported in the record. Id. at *3. And because Powell's additional facts are intermingled with her responses to Baptist's undisputed facts, making it impossible to discern whether Powell has complied with the five-page limit, the Court will consider the entirety of her submission at ECF No. 69-2.

Given the foregoing, the following facts are undisputed for the determination of this motion.

Baptist hired Powell on or about January 5, 1988, as Head Nurse in the Cardiovascular Intensive Care Unit (“CVICU”). (ECF No. 66-2 ¶ 2; ECF No. 69 ¶ 2.) In 2017, Powell was promoted to a leadership position in the CVICU, Nurse Advanced Clinician, which required that she maintain bedside care duties while assisting with education and setting protocols in the Unit.

(ECF No. 66-2 ¶ 5.)[4] In this position, Powell was responsible for ensuring that annual mandatory competency testing was properly completed for each nurse in the Unit, including the semiannual bedside blood glucose monitoring recertification. (ECF No. 66-2 ¶ 6.)[5]

In September 2018, Tara Etter, CVICU Manager, was alerted that the September 2018 bedside blood glucose competency tests appeared to have been falsified. (ECF No. 66-2 ¶ 7.)[6] Every test completed on September 16, 2018, had the exact same score, and the nurses all missed the same question by choosing the same wrong answer. (ECF No. 66-2 8.)[7] Powell admitted to writing in the true and false answers for three nurses and “verbally” providing answers to the remaining nurses. (ECF No. 76 ¶¶ 6, 8.) After that admission, Baptist suspended her on September 21, 2018, pending an investigation and determination of the appropriate discipline.

(Id. ¶ 7.)[8]It is undisputed that Powell's suspension was without pay. (See, e.g., ECF No. 76 ¶¶ 10-11, 17.) On September 25, 2018, Powell resigned. (Id. ¶¶ 10, 11.)[9] Because Plaintiff resigned while she was on an investigative suspension, her separation paperwork listed that she “resigned in lieu of discharge” effective the first day of her suspension, which was Baptist's standard practice when an employee resigns while placed on investigative suspension. (ECF No. 76 ¶ 67.)[10]

Matthew Buyny, the CVICU's head nurse, admitted knowing Powell falsified the blood glucose recertification test but failing to report her. (ECF No. 66-2 ¶¶ 14, 16.)[11]Buyny was to be demoted, but he resigned. (ECF No. 76 ¶ 14.)[12]The remaining nurses who admitted they allowed Powell to complete their tests, who were in non-leadership roles, received written reprimands informing them that their behavior was unacceptable. (ECF No. 66-2 ¶ 17; ECF No. 76 ¶ 21.)[13]Their discipline was less severe because they were not in leadership roles and because they were following their leader's instructions. (ECF No. 66-2 ¶ 17; ECF No. 76 ¶ 21.)[14]Powell claims that Buyny provided her the answers to the blood glucose test, but she admitted she did not report Buyny's conduct to Baptist. (ECF No. 66-2 ¶ 23 (citing Powell Dep. 105:22-106:9).)[15]

Powell's actions were directly contrary to Baptist's relevant policies and were sufficient to justify immediate termination. (ECF No. 66-2 ¶ 18.)[16]Baptist typically follows a progressive disciplinary process; however, its Operations Policy, Procedure and Guideline Manual provides that “there may be circumstances when one or more [of the progressive discipline] steps are bypassed. In fact, certain infractions or circumstances may be deemed serious enough to justify immediate termination of employment.” (ECF No. 66-2 ¶ 18; ECF No. 66-3, at 14.)[17]Certain expressly prohibited conduct is considered a “serious conduct violation” that may result in immediate termination of employment, foregoing the progressive steps of discipline. (ECF No. 66-2 ¶ 19.) One such serious conduct violation is “misrepresentation of any documentation.” (Id.)

In or around July 2019, one of Baptist's employees informed it that Emily Shorter, a Caucasian clinical resource nurse, gave an answer key to nurses for the ISTAT tests.[18](ECF No. 66-2 ¶ 25.)[19]Baptist investigated the allegations but could not corroborate...

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