Reed v. SISTERS OF CHARITY OF INCARNATE WORD OF LA.

• Decision Date: 09 March 1978
• Docket Number: Civ. A. No. 760349.
• Citation: 447 F. Supp. 309
• Parties: Beverly REED et al. v. SISTERS OF CHARITY OF the INCARNATE WORD OF LOUISIANA, INC.
• Court: U.S. District Court — Western District of Louisiana

447 F. Supp. 309

Beverly REED et al. v. SISTERS OF CHARITY OF the INCARNATE WORD OF LOUISIANA, INC.

Civ. A. No. 760349.

United States District Court, W. D. Louisiana, Shreveport Division.

March 9, 1978.

Frank E. Brown, Jr., Piper & Brown, Shreveport, La., for plaintiffs.

Arthur R. Carmody, Jr., Wilkinson, Carmody & Woods, Shreveport, La., for defendant.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

DAWKINS, Senior District Judge.

Findings of Fact

1.

This suit was brought as a would-be class action against the Sisters of Charity of the Incarnate Word of Louisiana, whose correct corporate name now is Sisters of Charity of the Incarnate Word, Shreveport, Louisiana (incorrectly cited as Schumpert Medical Center in the original complaint), a religious, non-profit institution which has furnished medical and nursing services, as well as moral and spiritual guidance, to persons of all races and creeds in this area for more than seventy years.

2.

The action was filed on March 31, 1976, and on June 25, 1976, defendant moved to dismiss the complaint, or, alternatively, to deny class certification pursuant to Rule 23, F.R.C.P. In support of this motion, there was filed a tape recording and transcript of a highly inflammatory speech made by Frank E. Brown, Jr., plaintiffs' lead counsel, to some 150 black persons at the Carver Branch of the Y.M.C.A. in Shreveport. Many of these persons were employed by defendant, and several eventually became plaintiffs in this litigation. The speech was given on February 26, 1976, approximately one month prior to the filing of this suit. Several plaintiffs testified, in discovery depositions, that it was only after hearing this solicitous, highly improper, and unprofessional speech that they decided to join in the suit.

3.

On June 25, 1976, the Clerk's office immediately notified Mr. Brown of this filing, sending him a copy of our Local Rule 10(f) which, in effect, states that, when a motion is opposed, the opposing party shall file his response within ten days after service of the motion. On July 7, 1976, no response of any kind having been filed in opposition to the motion, we caused the following minute entry to be entered in the record of the case:

"Plaintiff, having failed to file a brief in opposition to the motion by `Sisters of Charity' to dismiss complaint or, alternatively, to deny class certification, within the 10 days required by 10(f) of the Rules of this Court, it is hereby ordered that the alternative motion to deny class certification under Rule 23 F.R.C.P., filed 6-25-76 be and the same is hereby granted."

4.

The remarks made by Mr. Brown at the pre-suit meeting are shown by the tape recording and transcript. They include the following statement:

"I would like to commend all of you on your laudatory effort in your pursuit of suing Schumpert Hospital for alleged employment discrimination . . .."

"So if there is anything our office can do in supporting your effort, please call upon us."

". . . Schumpert's attorney, Arthur Carmody, who is a damn liar if he says he doesn't discriminate against you at the Schumpert. Carmody is a liar." (Cheering and applause.)

"For those who desire to do 'em i. e., file charges with the Equal Employment Opportunity Commission you have to do 'em within 180 days after you think you have been injured by some discriminatory act, otherwise any possible action you have might be barred. So those of you who haven't filed charges and desire to I have thousands of 'em. For those of you who don't want to come to the office and get them you can write off to New Orleans and get some."

"So if there is anything we can do, or you think we might be able to do, to help you, call upon us."

"In no other instance has George D'Artois ever met with any other black employees of this city and we filed over 20 lawsuits for employment discrimination. Without being braggadocio, some have been successful, and others pending in court."

"Any time that you people feel that you have had the most you can take at Schumpert and want to take some affirmative action, call upon us."

Even had Mr. Brown responded to defendant's motion to dismiss, as to the class aspects of this case, we would have dismissed them. His remarks were so unprofessional, inflammatory, and solicitous that we never would have allowed them to serve as a predicate for creating a class.

5.

On February 7, 1977, the case, having been put at issue by answer filed, was placed upon the Pretrial Calendar for a Conference on May 11, 1977. However, plaintiffs' attorney failed timely to initiate and file a pretrial order, and on May 4, 1977, in accord with our Local Rules, it was removed by the Clerk from both the Pretrial and Trial Calendars.

6.

On October 19, 1977, a new Pretrial and Trial Calendar was issued, setting the Pretrial Conference for January 9, 1978, and Trial for January 16, 1978. The trial commenced as scheduled and was concluded on January 17, 1978.

7.

Upon conclusion of all the testimony, a motion was made by defendant, pursuant to rule 41(b) F.R.Civ.P., to dismiss the suit on the grounds that, upon the facts and the law, the plaintiffs had shown no right to relief. For the reasons noted infra, we found this motion to be well founded, and judgment was rendered in favor of defendant.

8.

Nine named plaintiffs filed this lawsuit: Beverly Reed, Sammie Lee Lewis, Betty Ann Parker, Grady Mae Brown, Lola Pryor, Irma Jean Marlow, Josephine McGaskey, Annie Mae Richardson, and M. L. Brown. However, only six testified at trial. Their claims were frivolous and, indeed, ridiculous. They were totally lacking in merit.

9.

Beverly Reed, a black, was a Licensed Practical Nurse (LPN) employed by defendant on January 8, 1974. She initially was assigned to the 11:00 p. m.-7:00 a. m. shift. Her sole complaint was that she requested but was not assigned to the 7:00 a. m.-3:00 p. m. shift, although she alleged other employees with less seniority were assigned that shift.¹

The evidence showed that defendant does not operate on a strict seniority system but that relative ability and qualifications, hospital needs, and experience in certain nursing areas are taken into account when making shift arrangements. Evidence further showed that defendant reasonably attempted to accommodate her several requests for shift assignments: In November of 1974, she accepted a shift change to the 3:00-11:00 p. m. shift on the CICU unit; on March 16, 1975, she requested, and was granted, a change from the CICU unit to the "rotate and float" unit; and, after she requested a permanent 7:00 a. m.-3:00 p. m. shift from the Director of Nursing Services in July of 1975, she obtained the second opening that became available. (The first was filled by a black who had requested it earlier.)

Mrs. Sibyl Wood, the hospital's Director of Nursing Services, testified that Beverly Reed requested and was granted more shift changes than nearly any other employee of the hospital. (Schumpert Medical Center has approximately 1,300 employees, of whom approximately 34 per cent are black.)

We further found Mrs. Reed to be lacking in credibility. She testified that prior to coming to Schumpert she was employed at the Louisiana Ordnance Plant but left because of "a reduction in force." However, written records of the company operating the Plant, introduced at trial, reflected that she quit because of her dissatisfaction with her shift assignments.

Even more determinative of her lack of credibility was her answer on cross-examination that she had been counseled on only one occasion about the quality of her nursing services. Written evidence offered by defendant showed that she had been counseled (criticized) in writing at least a dozen times in less than a two-year period — more than any other employee at Schumpert — except Betty Parker — including:

(1) June 21, 1975 — improper charting by B. Davis, R. N.

(2) October 29, 1975 — patient complaints made to Sister Rebecca.

(3) November 14, 1975 — failure to order medication, according to charts, for patients in her wing, F. McNeill, R.N.

(4) December 1, 1975 — poor attitude; not checking off patients' orders, R. McNeill, R.N.

(5) December 1, 1975 — leaving floor without permission, Sibyl Wood, R.N.

(6) November 26, 1975 — failure to give patient pain medication, S. Wood, R.N.

(7) November 26, 1976 — errors in medication, a quite serious violation, Sister Emily.

(8) March 18, 1977 — sending patient to anesthesia prior to surgery with dentures in place, a most serious violation, C. Bourgeois, R.N.

(9) March 19, 1977 — attempting to "counsel" her superior, J. Wallace, R.N.

(10) March 20, 1977 — patient complaints concerning her indifference and attitude, J. Mawry, R.N.

(11) March 21, 1977 — medication errors, C. Bourgeois, R.N., and Director of Personnel John Nelson.

(12) On March 23, 1977, she was late for work and then, in a belligerent manner attempted to counsel her superiors, C. Bourgeois and Sister Emily, both of whom are registered nurses. Upon recommendation of Sister Emily, she was discharged that day.

We find that defendant did not unlawfully discriminate against this plaintiff regarding shift assignments and that, indeed, it walked the extra mile in its efforts to rehabilitate her.

10.

The second plaintiff who testified was Betty Parker, a nurse's aide² employed on August 4, 1973. (Her allegations in the complaint admittedly were erroneous — there she alleged she was employed in 1968 as an "orderly.") The gravamen of her complaint was that she was terminated on January 29, 1976, without explanation or reason, due to her race. The evidence over-whelmingly established that she was discharged for cause — a generally poor attitude and substandard job performance. As with Mrs. Reed, she denied any counseling incidents, but written concurrent documentation, as well as the testimony of her supervisors, showed counseling for:

(1) September 20, 1974 — leaving floor without consent, by H.

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