United States District Court, M.D. Florida, Ft. Myers Division
Loren D. King, II, Plaintiff,
Fawcett Memorial Hospital, Inc. Defendant.
MEMORANDUM AND ORDER
A. MAGNUSON UNITED STATES DISTRICT COURT JUDGE.
matter is before the Court on Defendant's Motion for
Summary Judgment. For the following reasons, the Motion is
an employment-discrimination case. In January 2014, when he
was 54 years old, Plaintiff Loren D. King II was hired as a
nurse in the intensive care unit at Defendant Fawcett
Memorial Hospital in Port Charlotte, Florida. (2d Am. Compl.
(Docket No. 37) at 1.) At that time, King signed an
acknowledgement of the Hospital's Code of Conduct, which
included its zero-tolerance policy for illegal substance use.
(Pl.'s Dep. (Docket No. 79-1) 58.) Hospital policy
prohibits employees from being at work with any measurable
quantity of an illegal drug or non-prescribed controlled
substance in their blood or urine. (Hospital Substance Use
Policy (Docket No. 78-1) at 2-3.) The collective bargaining
agreement between the nurses' union and the Hospital
included the same prohibition. (Docket No. 79-7 at 2.)
to the Hospital, “[a] ‘drug diversion' occurs
when a nurse or Hospital employee transfers legally
prescribed controlled substances from the patient for whom it
was prescribed to another person, including the employee
himself, for any illicit use.” (Def.'s Supp. Mem.
(Docket No. 78) at 7.) The Hospital uses Pyxis, an automated
medication-dispensing system, to ensure that medications are
distributed to patients safely and efficiently. (Id.
at 4.) On October 6, 2015, a routine Hospital audit reflected
that King may have removed two units of propofol, an opiate,
from the Pyxis system on October 3, 2015. (Id. at
6.) Kelli Steiner-Dawson, King's nurse manager,
discovered this incident on the audit and was concerned that
two units of the drug were removed within an hour of each
other and that there was no record of whether the drugs were
administered to a patient or wasted. (Steiner-Dawson Decl.
(Docket No. 71-11) at ¶ 10; Pl.'s Dep. 37-38.)
“charting error” is a missed scan indicating that
a nurse did not administer a drug to a patient, or did not do
so in a timely manner, or that the drug was wasted.
(Steiner-Dawson Decl. at ¶ 1-2.) Steiner-Dawson was
aware that King “had a significant pattern of charting
errors and dispensing more drugs than other nurses.”
(Id.) She raised the issue of the missing drug with
Sally Seymour, the Hospital's Chief Operating Officer.
(Id. at ¶ 13.) The Hospital's Director of
Pharmacy, Armando Soto, then brought the issue to the
Hospital's Ad-Hoc Committee's attention on October 7,
2015. (Bryan Decl. (Docket No. 79-10) at ¶ 8.)
Hospital requires a reasonable suspicion drug test for
suspected drug diversion. (Def.'s Supp Mem. at 7.) The
Ad-Hoc Committee determined that reasonable suspicion
existed, and required King to take a drug test when he
reported to work on October 7, 2015. (Id.) At first
King refused to do so, because he had used marijuana in the
recent past. (2d Am. Compl. at 13.) He then changed his mind,
told Hospital administrators that the test would be positive
for marijuana, took the test, and failed, because he tested
positive for marijuana. (Id.; Def.'s Supp. Mem.
at 8.) Because of the Hospital's zero-tolerance policy
for a failed drug test, Marcy Frisena, the Chief Nursing
Officer, decided to terminate King's employment on
October 16, 2015. (Def.'s Supp. Mem. at 8-9.)
Steiner-Dawson informed King of Frisena's decision.
(Steiner-Dawson Decl. at ¶¶ 14, 16.) The Hospital
was also required to report King's positive drug test to
the State Department of Health. (Def.'s Supp. Mem. at 9.)
failing the drug test, but before he was terminated, King
contacted the Intervention Project for Nurses
(“IPN”). (Pl.'s Reply Mem. (Docket No. 83) at
16.) IPN works with the State of Florida to provide
“education, support and monitoring to nurses with
impairing conditions such as substance use disorders,
psychiatric and physical conditions. Nurses are most often
referred to IPN by nursing employers due to potential safety
to practice concerns.” Intervention Project for Nurses,
About, https://www.ipnfl.org/about/ (last visited
Dec. 9, 2019). King joined IPN, attempting to keep his job
and his license. (2d Am. Compl. at 6.) But he refused to sign
a five-year contract with IPN restricting his work with
narcotics because of his marijuana use. (Pl.'s Reply Mem.
believes he was terminated unfairly. He attributes the
charting error to his undermedicated attention deficit
disorder, Steiner-Dawson's animus towards him, and his
difficulty in using the Hospital's charting system.
Liberally construing King's pro se pleadings, he brings
the following claims: disability discrimination under the
Americans with Disabilities Act (“ADA”) and the
Florida Civil Rights Act (“FCRA”), sex
discrimination under the FCRA, and age discrimination under
the Age Discrimination and Employment Act
(“ADEA”) and the FCRA.
judgment is proper only if there are no disputed issues of
material fact and the moving party is entitled to judgment as
a matter of law. Fed.R.Civ.P. 56(a); Celotex Corp. v.
Catrett, 477 U.S. 317, 322-23 (1986). The Court must
view the evidence and the inferences that may be reasonably
drawn from the evidence in the light most favorable to the
nonmoving party. Burton v. City of Belle Glade, 178
F.3d 1175, 1187 (11th Cir. 1999) (citation omitted).
moving party bears the burden of showing that there is no
genuine issue of material fact and that it is entitled to
judgment as a matter of law. O'Ferrell v. United
States, 253 F.3d 1257, 1265 (11th Cir. 2001). When
opposing a motion for summary judgment, the nonmoving party
must demonstrate the existence of specific facts in the
record that create a genuine issue for trial. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 256 (1986). A party
opposing a properly supported motion for summary judgment may
not rest on mere allegations or denials and “must do
more than simply show that there is some metaphysical doubt
as to the material facts.” Matsushita Elec. Indus.
Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986)
federal discrimination plaintiff must first exhaust the
administrative remedies available through the EEOC. Green
v. Elixir Indus., Inc., 152 Fed.Appx. 838, 840 (11th
Cir. 2005). While “the scope of an EEOC complaint
should not be strictly interpreted, ” the
“judicial complaint is limited by the scope of the EEOC
investigation which can be reasonably expected to grow out of
the charge.” Gregory v. Ga. Dep't of Human
Res., 355 F.3d 1277, 1280 (11th Cir. 2004) (quotation
omitted). A failure to include a discrimination claim in the
EEOC charge thus precludes a plaintiff from bringing that
claim in a federal lawsuit, also known as procedural default.
King failed to exhaust the administrative remedies for his
disability claim, and thus it is ...