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King v. Fawcett Memorial Hospital, Inc.

United States District Court, M.D. Florida, Ft. Myers Division

December 17, 2019

Loren D. King, II, Plaintiff,
v.
Fawcett Memorial Hospital, Inc. Defendant.

          MEMORANDUM AND ORDER

          PAUL A. MAGNUSON UNITED STATES DISTRICT COURT JUDGE.

         This matter is before the Court on Defendant's Motion for Summary Judgment. For the following reasons, the Motion is granted.

         BACKGROUND

         This 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.)

         According 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.)

         A “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.)

         The 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.)

         After 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. at 14.)

         King 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.

         DISCUSSION

         Summary 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).

         The 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) (citation omitted).

         A. Disability Discrimination

         A 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 ...


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