United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued November 19, 2015 Decided February 12, 2016
No. 14-7108
PATRICIA WHEELER,
APPELLANT
v.
GEORGETOWN UNIVERSITY HOSPITAL, ALSO KNOWN AS
MEDSTAR - GEORGETOWN MEDICAL CENTER,
APPELLEE
Appeal from the United States District Court
for the District of Columbia
(No. 1:10-cv-01441)
Donna Williams Rucker argued the cause and filed the
brief for Appellant.
Ziad Haddad argued the cause for Appellee. On the
brief was David C. Tobin.
Before: HENDERSON, PILLARD and WILKINS, Circuit
Judges.
Opinion for the Court filed by Circuit Judge WILKINS.
Appellant Patricia Wheeler, who is African-American,
charges that she was improperly terminated by her former
2
employer Georgetown University Hospital (the Hospital), in
violation of Title VII of the Civil Rights Act of 1964, 42
U.S.C. § 2000e. Nurse Wheeler claims that her termination
was the result of racial discrimination. For the reasons set
forth below, we reverse the District Court’s grant of summary
judgment to the Hospital and remand for further proceedings.
I.
Patricia Wheeler was hired as a Clinical Nurse at the
Hospital in March 2006, in a department of the Hospital
known as “4 East.” In March 2007, Nurse Angela
Hollandsworth assumed the position of Clinical Manager for
4 East, and became Nurse Wheeler’s immediate supervisor.
As the Clinical Manager of 4 East, Nurse Hollandsworth had
responsibilities for the hiring, supervision, and, when
necessary, termination, of all of the Registered Nurses in her
unit. The Clinical Director of the unit was Sue Howell.
On December 27, 2009, Nurse Wheeler was floated to the
Hospital’s Intensive Care Unit (ICU). She was assigned to
care for three patients during a twelve-hour shift that began at
7:00 a.m. The following day, four nurses who had been
working with Nurse Wheeler during that December 27 shift
reported to Nurse Hollandsworth that Nurse Wheeler had
made a number of mistakes, including (1) a report that Nurse
Wheeler had left a patient’s IV bag empty, that the IV was set
up to deliver the wrong medications, and that the patient had
not been given two prescribed doses of insulin; (2) a report
that Nurse Wheeler had failed to properly record patient vital
signs for at least two of her patients, had failed to provide a
temperature probe monitor to a patient, and had failed to
properly set a blood pressure cuff on a patient; (3) a report
that one of Nurse Wheeler’s patients, who was unable to
make intentional movements or reposition herself without
3
assistance, was left slouched over in bed with her head rested
uncomfortably against the side rail, resulting in the patient
being soaked through to her gown and sheets in her own oral
secretions, that Nurse Wheeler did not check in on the patient
during the five hours the patient’s family was in the room, and
that later the patient was once again found slumped against
the rail and also caked in dry stool; and (4) a report that
another of Nurse Wheeler’s patients had been discovered
lying in dried stool, also with an empty antibiotic bag hooked
up to the running heparin drip.
On December 30, 2009, following the reporting of these
alleged incidents, Nurse Hollandsworth and Director Howell
spoke with Nurse Wheeler via speaker phone to notify her
that she was being suspended and to advise her that she was to
report to the Hospital later that day in order to review the
issues under investigation. During Nurse Wheeler’s
suspension, Nurse Hollandsworth conducted an investigation
into the allegations. Nurse Hollandsworth interviewed each
of the nurses who had reported on Nurse Wheeler’s conduct,
and confirmed in writing what each had told her they
observed. Nurse Hollandsworth also requested that Nurse
Wheeler provide a written explanation of the incidents, which
Wheeler provided in two emails to Michelle Lawyer in the
Hospital’s Human Resources department on January 1 and 6,
2010. Ms. Lawyer forwarded Nurse Wheeler’s emails to
Nurse Hollandsworth and Director Howell on January 4 and
7, 2010, respectively.
On January 8, 2010, Nurse Wheeler met with Nurse
Hollandsworth and Director Howell, and was notified at that
time that the decision had been made to terminate her
employment. According to the termination letter, Nurse
Wheeler’s termination was based on the findings of the
investigation into the allegations of poor work performance
4
during her December 27, 2009 shift, which concluded that her
actions on that day “reflected a serious lack of clinical
judgment and jeopardized the health and safety of [the
Hospital’s] patients.” J.A. 109. The Hospital did not hire a
nurse to replace Wheeler.
Nurse Wheeler filed a complaint with the Equal
Employment Opportunity Commission (EEOC) on January 7,
2010. She then filed a formal Charge of Discrimination with
the EEOC and the District of Columbia Office of Human
Rights (OHR) on January 21, 2010. On or about September
22, 2010, the EEOC issued Nurse Wheeler a Notice of Right
to Sue.
Nurse Wheeler filed a complaint with the District of
Columbia Superior Court on July 26, 2010. The action was
removed to the District Court for the District of Columbia on
August 25, 2010. The complaint alleged, inter alia, that the
Hospital discriminated against Nurse Wheeler based on her
race in violation of Title VII of the 1964 Civil Rights Act.
The Hospital filed a motion to dismiss on August 31, 2010,
seeking dismissal of all counts. The District Court granted
the motion in part on June 6, 2011. See Wheeler v.
Georgetown Univ. Hosp. (Wheeler I), 788 F. Supp. 2d 1
(D.D.C. 2011). The Hospital moved for summary judgment
on January 31, 2014. The District Court granted the
Hospital’s motion for summary judgment on June 27, 2014.
Wheeler v. Georgetown Univ. Hosp. (Wheeler II), 52 F. Supp.
3d 40 (D.D.C. 2014).
II.
We review the District Court’s grant of summary
judgment de novo. Holcomb v. Powell, 433 F.3d 889, 895
(D.C. Cir. 2006). Summary judgment is appropriately granted
when, viewing the evidence in the light most favorable to the
5
non-movant and drawing all reasonable inferences
accordingly, no reasonable jury could reach a verdict in her
favor. Carter v. George Washington Univ., 387 F.3d 872, 878
(D.C. Cir. 2004). The evidence presented must show that (1)
there is no genuine issue as to any material fact, and (2) the
moving party is entitled to judgment as a matter of law.
Holcomb, 433 F.3d at 895; FED. R. CIV. P. 56(c). “[T]he mere
existence of some alleged factual dispute between the parties
will not defeat an otherwise properly supported motion for
summary judgment; the requirement is that there be no
genuine issue of material fact.” Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 247-48 (1986) (emphasis in original).
“Only disputes over facts that might affect the outcome of the
suit under the governing law will properly preclude the entry
of summary judgment. Factual disputes that are irrelevant or
unnecessary will not be counted.” Id. at 248.
In conducting our analysis, we review the record taken as
a whole. Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 587 (1986). “Where the record taken as a
whole could not lead a rational trier of fact to find for the non-
moving party, there is no genuine issue for trial.” Id.
(quotation marks omitted). We are not to make credibility
determinations or weigh the evidence. Holcomb, 433 F.3d at
895; see Liberty Lobby, 477 U.S. at 249 (“[A]t the summary
judgment stage the judge’s function is not himself to weigh
the evidence and determine the truth of the matter but to
determine whether there is a genuine issue for trial.”).
Title VII of the Civil Rights Act makes it unlawful for an
employer “to fail or refuse to hire or to discharge any
individual, or otherwise to discriminate against any individual
with respect to his compensation, terms, conditions, or
privileges of employment, because of such individual’s race,
color, religion, sex, or national origin.” 42 U.S.C. § 2000e-
6
2(a)(1). Where the plaintiff lacks direct evidence of
discrimination, racial discrimination claims under Title VII
are subject to the familiar burden-shifting framework of
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
See, e.g., Chappell-Johnson v. Powell, 440 F.3d 484, 487
(D.C. Cir. 2006). First, the plaintiff carries the burden of
establishing a prima facie case of racial discrimination. Id.
“To state a prima facie case of discrimination, a plaintiff must
allege she is part of a protected class under Title VII, she
suffered a cognizable adverse employment action, and the
action gives rise to an inference of discrimination.” Walker v.
Johnson, 798 F.3d 1085, 1091 (D.C. Cir. 2015). Once the
prima facie case is established, the burden then shifts to the
employer to articulate a legitimate, nondiscriminatory reason
for its action. Id. at 1092. If the employer does this, the
burden then shifts back to the plaintiff, who must be afforded
a fair opportunity to show that the employer’s stated reason
for its actions was in fact pretext for unlawful discrimination.
Id.
In reviewing a summary judgment motion where the
defendant has proffered some legitimate reason for its adverse
employment action, however, we skip ahead to the third step
in the test. “[O]nce the employer asserts a legitimate, non-
discriminatory reason, the question whether the employee
actually made out a prima facie case is no longer relevant and
thus disappears and drops out of the picture.” Brady v. Office
of Sergeant at Arms, 520 F.3d 490, 493 (D.C. Cir. 2008)
(quotation marks and alteration omitted). “[T]he district court
need not – and should not – decide whether the plaintiff
actually made out a prima facie case under McDonnell
Douglas.” Id. at 494 (emphasis in original); see also Jones v.
Bernanke, 557 F.3d 670, 678 (D.C. Cir. 2009) (“[A]sking
whether [the plaintiff] satisfied his prima facie burden is an
unnecessary and improper ‘sideshow.’” (quoting Brady, 520
7
F.3d at 494)). The only question that remains is whether the
evidence creates a material dispute on the ultimate issue.
Jones, 557 F.3d at 678. As we have stated:
[I]f an employer asserts a legitimate,
nondiscriminatory reason for an adverse
employment action, the district court must
conduct one central inquiry in considering an
employer’s motion for summary judgment or
judgment as a matter of law: whether the
plaintiff produced sufficient evidence for a
reasonable jury to find that the employer’s
asserted non-discriminatory reason was not the
actual reason and that the employer
intentionally discriminated against the plaintiff
on a prohibited basis.
Adeyemi v. District of Columbia, 525 F.3d 1222, 1226 (D.C.
Cir. 2008). Thus, the only relevant inquiry here is whether
Nurse Wheeler produced sufficient evidence for a reasonable
jury to conclude that the Hospital’s asserted non-
discriminatory reason for firing her was not the actual reason,
and that instead the Hospital was intentionally discriminating
against Nurse Wheeler on account of her race.
In considering this question, we ask “whether the jury
could infer discrimination from the combination of (1) the
plaintiff’s prima facie case; (2) any evidence the plaintiff
presents to attack the employer’s proffered explanation for its
actions; and (3) any further evidence of discrimination that
may be available to the plaintiff . . . or any contrary evidence
that may be available to the employer.” Aka v. Washington
Hosp. Ctr., 156 F.3d 1284, 1289 (D.C. Cir. 1998) (en banc).
This Court does not sit as a “super-personnel department” that
reexamines an employer’s business decisions, Barbour v.
8
Browner, 181 F.3d 1342, 1346 (D.C. Cir. 1999), and “may
not second-guess an employer’s personnel decision absent
demonstrably discriminatory motive,” Fischbach v. D.C.
Dep’t of Corr., 86 F.3d 1180, 1183 (D.C. Cir. 1996)
(quotation marks omitted). “The ultimate burden of
persuading the trier of fact that the defendant intentionally
discriminated against the plaintiff remains at all times with
the plaintiff.” Texas Dep’t of Cmty. Affairs v. Burdine, 450
U.S. 248, 253 (1981).
III.
Nurse Wheeler argues, contrary to the District Court’s
determination, that there were sufficient facts and evidence
presented from which a reasonable juror could have
concluded that the reasons proffered by the Hospital for her
termination were pretextual, and that the termination was
actually the result of racial discrimination. A plaintiff may
support an inference that her employer’s stated reasons for
undertaking the adverse employment action in question were
pretextual by citing a number of possible sources of evidence,
including “the employer’s better treatment of similarly
situated employees outside the plaintiff’s protected group, its
inconsistent or dishonest explanations, its deviation from
established procedures or criteria, [] the employer’s pattern of
poor treatment of other employees in the same protected
group as the plaintiff, or other relevant evidence that a jury
could reasonably conclude evinces an illicit motive.” Walker,
798 F.3d at 1092; see also Royall v. Nat’l Ass’n of Letter
Carriers, AFL–CIO, 548 F.3d 137, 144 (D.C. Cir. 2008) (“A
plaintiff, who retains the burden of persuasion throughout,
may show pretext in a number of ways, including by offering
evidence of more favorable treatment of similarly situated
persons who are not members of the protected class or that the
employer is lying about the proffered justification.” (citation
9
omitted)). By providing evidence that similarly situated non-
black nurses were treated more favorably, Nurse Wheeler has
raised a genuine issue of material fact regarding her
termination, which ought to be resolved by a jury.
A.
Nurse Wheeler seeks to discredit the Hospital’s
justification for her termination by showing that nurses of
other races – primarily white nurses – were not disciplined as
severely for similar conduct. “One way to discredit an
employer’s justification is to show that similarly situated
employees of a different race received more favorable
treatment.” Royall, 548 F.3d at 145; see also 1 LEX K.
LARSON, EMPLOYMENT DISCRIMINATION § 8.04, at 8-66 (2d
ed. 2007) (“Probably the most commonly employed method
of demonstrating that an employer’s explanation is pretextual
is to show that similarly situated persons of a different race or
sex received more favorable treatment.”). Showing that
others outside the plaintiff’s class have been more favorably
treated is “[e]specially relevant” to a demonstration of pretext.
McDonnell Douglas, 411 U.S. at 804. The question of
whether employees are similarly situated in order to show
pretext “ordinarily presents a question of fact for the jury.”
George v. Leavitt, 407 F.3d 405, 414 (D.C. Cir. 2005).
Nurse Wheeler identifies six nurses whom she believes
were similarly situated but treated more favorably: W.L.,
K.M., C.S., A.A., B.D., and C.R. Nurse Wheeler has asserted
that during the time she was under the supervision of Nurse
Hollandsworth and Director Howell, these similarly-situated
nurses were not similarly terminated for their “gross
misconduct,” which Wheeler contends included calculating
and administering the wrong dosage of heparin (W.L., B.D.,
and C.R.), failing to document a patient’s changed mental
10
status and delaying the provision of treatment (K.M.),
withholding prescribed medication in contradiction to the
doctor’s orders (C.S.), and failing to provide a patient with a
needed bite block (A.A.). None of these nurses was
terminated.
For a plaintiff to prove that she is similarly situated to
another employee, she must demonstrate that she and the
alleged similarly-situated employee “were charged with
offenses of comparable seriousness,” and “that all of the
relevant aspects of [her] employment situation were nearly
identical to those of the other employee.” Burley v. Nat’l
Passenger Rail Corp., 801 F.3d 290, 301 (D.C. Cir. 2015)
(quotation marks and alteration omitted) (citing Holbrook v.
Reno, 196 F.3d 255, 261 (D.C. Cir. 1999)). “Factors that bear
on whether someone is an appropriate comparator include the
similarity of the plaintiff’s and the putative comparator’s job
and job duties, whether they were disciplined by the same
supervisor, and, in cases involving discipline, the similarity of
their offenses.” Id. Viewing the evidence in the light most
favorable to Nurse Wheeler, Carter, 387 F.3d at 878, and
recognizing that determining whether two employees are
similarly situated is ordinarily a question of fact for the jury,
George, 407 F.3d at 414, we believe there is sufficient
evidence from which a jury could reasonably conclude,
bearing in mind the Burley factors, that one or more of the
proposed comparator nurses were similarly situated to
Wheeler in all relevant respects.
1.
First, all of the nurses identified by Nurse Wheeler were
Registered Nurses working in the same or a comparable unit.
Nurse Wheeler described these nurses as her colleagues, and
the Hospital has not countered with any evidence to indicate
11
that, actually, the nurses should be differentiated in terms of
their roles and responsibilities – either because they were
above or below Nurse Wheeler’s pay grade or for any other
reason. Cf. Neuren v. Adduci, Mastriani, Meeks & Schill, 43
F.3d 1507, 1514 (D.C. Cir. 1995) (male law associate was not
similarly situated to female associate in sex discrimination
case based in part on the fact that it was undisputed that the
male associate was lower in seniority). With these facts, a
jury could reasonably conclude that the other nurses were in
similar roles and had similar responsibilities.
2.
Second, all of the proposed comparator nurses were
subject to the same decision makers as Nurse Wheeler: the
named nurses were either subject to discipline by both Nurse
Hollandsworth and Director Howell, or they were supervised
by a different clinical manager who also reported to Director
Howell. And all were subject to the decisional authority of
the GUH Human Resources department.
It is undisputed that Nurse Hollandsworth played a key
role in the decision to terminate Wheeler, but she was not the
lone decision maker. In responding to Nurse Wheeler’s
interrogatory request to “[i]dentify the person who made the
decision to terminate” her employment, the Hospital stated
that “[t]he determination to terminate [Nurse Wheeler’s]
employment was recommended by her Clinical Manager,
Angela Hollandsworth, and supported by Sue Howell and
GUH Human Resources.” J.A. 382. The Hospital also
asserted in its interrogatory responses that “GUH Human
Resources determined that Plaintiff should be terminated”
based on Hollandsworth’s investigation. J.A. 381 (emphasis
added). And despite the Hospital’s assertion that “Plaintiff
was not fired by Susan Howell,” J.A. 383, other evidence
12
indicates that Director Howell was integrally involved in
Nurse Wheeler’s disciplinary process and was therefore a
relevant decision maker. Where the Hospital clearly
identified Director Howell and GUH Human Resources – in
addition to Nurse Hollandsworth – as “person[s] who made
the decision to terminate” Nurse Wheeler, J.A. 382, a
reasonable juror could conclude that disciplinary decision-
making was a shared responsibility between Nurse
Hollandsworth, the direct supervisor, Howell, the clinical
director, and GUH Human Resources. Accordingly, there is
at least a dispute of fact as to whether other nurses also
subject to supervision and discipline by Hollandsworth,
Howell, as clinical director, or GUH Human Resources
should be viewed as similarly situated to Wheeler in this
respect.
Based on the record evidence, a juror could reasonably
conclude that either Nurse Hollandsworth or Director Howell,
or both, played a role in the decision not to terminate three out
of the four of Nurse Wheeler’s proposed comparators who
were also supervised by Nurse Hollandsworth – C.S., K.M.,
and W.L. – and that the harsher treatment of Wheeler was
based on race. 1 Nurse Hollandsworth was well aware, for
1
With respect to A.A., however, we find this factor eliminates her
as a comparator because the record evidence does not support a
finding that her alleged misconduct was relayed to Nurse
Hollandsworth, Director Howell, or Human Resources. While A.A.
worked directly for Nurse Hollandsworth, the evidence provided by
Nurse Wheeler suggests only that an “ICU manager” was informed
of the incident. J.A. 254. Nurse Wheeler admitted that she “didn’t
talk to anyone about going to HR” to report the incident, J.A. 256,
and Nurse Hollandsworth denied any knowledge of the event in her
deposition, J.A. 343-44. For this reason, there is insufficient
evidence for a juror to reasonably conclude that Hollandsworth,
13
example, that C.S. erroneously discontinued sickle cell
anemia medication contrary to the doctor’s order that it be
administered, but after reviewing the incident report, Nurse
Hollandsworth chose merely to counsel C.S. rather than
terminate her or recommend her termination. And although
Nurse Hollandsworth denied awareness of K.M.’s misconduct
in failing to attend to a patient who “coded,” Wheeler’s own
testimony that, when it happened, she told Nurse
Hollandsworth about that incident suffices to create a material
factual dispute that Nurse Hollandsworth had a role in the no-
discipline response to K.M.’s misconduct. Another of Nurse
Hollandsworth’s direct reports, W.L., similarly received no
discipline after she gave a patient an incorrect dose of the
anti-coagulant heparin, requiring the patient’s intubation and
transfer to the ICU. And though Nurse Hollandsworth was
not involved in the investigation into W.L.’s misconduct, the
record evidence suggests that Director Howell or some other
common manager was.
The record also shows that two other proposed
comparators, B.D. and C.R., shared a decision maker in
common with Nurse Wheeler in Director Howell, though they
worked in a different unit and under a different clinical
manager. As discussed above, Sue Howell was the director of
the unit in which Nurse Wheeler worked, and in conjunction
with Michelle Lawyer of GUH Human Resources was
integrally involved in the decision to terminate Wheeler.
According to the record evidence, Director Howell and Nurse
Hollandsworth jointly called Nurse Wheeler on December 29
to inform her of her suspension; Howell and Hollandsworth
both received Nurse Wheeler’s emails to Ms. Lawyer
providing Nurse Wheeler’s statements as to the incidents
Howell, or Human Resources were involved in the decision to
discipline A.A., and thus A.A. is not an apt comparator.
14
under investigation; and Howell and Hollandsworth both met
with Nurse Wheeler in person on January 8 to notify her of
the decision to terminate her employment. Given Director
Howell’s close involvement in Nurse Wheeler’s case, a jury
could reasonably infer that Howell, as director of the clinical
unit where B.D. and C.R. worked, similarly participated in the
decision to suspend B.D. and C.R., along with their direct
supervisor. The evidence thus suffices to create a triable issue
whether Director Howell engaged in racially disparate
treatment of Nurse Wheeler by suspending, rather than
terminating, similarly situated white nurses.
In sum, there remains a genuine issue of material
dispute, based on the facts presented, and viewing the
evidence in the light most favorable to Nurse Wheeler, that
other nurses were subject to the same decision makers to a
sufficient extent to allow a meaningful comparison as to how
these nurses were ultimately treated by the Hospital. See
Louzon v. Ford Motor Co., 718 F.3d 556, 563-64 (6th Cir.
2013) (noting that the “same supervisor” criterion had never
been read as an inflexible requirement, but “[r]ather, a court
should make an independent determination as to the relevancy
of a particular aspect of the plaintiff’s employment status and
that of the non-protected employee” (internal quotation marks
omitted)).
3.
Finally, Nurse Wheeler has raised a genuine issue as to
whether the alleged misdeeds of the proposed comparators
were of comparable seriousness to her own alleged
misconduct. In order to be considered similarly situated, it is
not necessary that the comparators engaged in the exact same
offense; what is required is merely that the offenses are of
“comparable seriousness.” McDonnell Douglass, 411 U.S. at
804; see also Holbrook, 196 F.3d at 261 (proof that another
15
employee is similarly situated requires demonstration that the
two employees “were charged with offenses of ‘comparable
seriousness’” (quoting Lynn v. Deaconess Med. Ctr.-West
Campus, 160 F.3d 484, 488 (8th Cir. 1998), abrogated on
other grounds by Torgerson v. City of Rochester, 643 F.3d
1031, 1043 (8th Cir. 2011))). In Lynn, the Eighth Circuit
explicitly rejected the notion that comparator analysis requires
the compared employees to have engaged in the exact same
offense. 160 F.3d at 488. “To require that employees always
have to engage in the exact same offense as a prerequisite for
finding them similarly situated would result in a scenario
where evidence of favorable treatment of an employee who
has committed a different but more serious, perhaps even
criminal offense, could never be relevant to prove
discrimination. Common sense as well as our case law dictate
that we reject such an approach.” Id.
A jury could reasonably conclude that the alleged
offenses of Nurse Wheeler’s proposed comparators were
offenses of “comparable seriousness.” As the Hospital’s
corporate representative Regina Bryan testified, one category
of misconduct which could lead to termination by the
Hospital without prior discipline is “gross misconduct,”
including “severe work performance problems.” J.A. 411.
Ms. Bryan cited, inter alia, negligence in the care of a patient
and negligent medicine administration as being potentially
considered “gross misconduct,” which could lead to
termination. Where, according to her termination letter,
Nurse Wheeler was terminated for “poor work performance
and failure to follow hospital policy and procedure,” J.A. 109,
it would be reasonable to view the basis for her termination as
falling under the “gross misconduct” classification. Likewise,
in accordance with Ms. Bryan’s testimony, it would be
reasonable to view the actions of the proposed comparators as
potentially rising to the level of “gross misconduct” where
16
those alleged incidents could be characterized as negligence
in the care of a patient or negligent medicine administration.
Indeed, when asked whether some of the comparators’ alleged
mistakes would be considered “gross misconduct,” Ms. Bryan
testified that those circumstances could potentially be
characterized as such. 2 And, as stated above, there does not
have to be a history of prior failures in order for one major
failure to be considered “gross misconduct.” Thus, a jury
could reasonably determine that Nurse Wheeler’s misconduct
was categorically similar to the misconduct of the proposed
comparator nurses.
The Hospital here attempts to distinguish Nurse Wheeler
from her proposed comparators on account of her prior
history of performance issues, stating that because of these
issues the other nurses could not be found to be similarly
situated. To begin with, however, there was evidence that
K.M. and C.S. did have prior performance issues that had led
to either counseling or official discipline, according to the
testimony of Nurse Hollandsworth. Moreover, Nurse’s
Wheeler’s termination letter and the Hospital’s interrogatory
responses identified only the events of December 27 as the
basis for her dismissal. The Hospital first pointed to Nurse
Wheeler’s past performance issues to explain her termination
in October 2013, when Nurse Hollandsworth testified on
behalf of the Hospital that “[f]or Ms. Wheeler, what led
ultimately to her termination was a repeated pattern of poor
work performance.” J.A. 287. To the extent that the Hospital
relies after-the-fact on Nurse Wheeler’s prior work
performance as a basis for her termination, that only bolsters
her argument that her termination was in fact based upon
2
The Hospital’s response to Nurse Wheeler’s reliance on Ms.
Bryan’s testimony in this regard is to suggest that their Rule
30(b)(6) witness should not be credited. This is not an appropriate
response at the summary judgment stage.
17
pretext, as it suggests that the explanation has shifted over
time. See Geleta v. Gray, 645 F.3d 408, 413 (D.C. Cir. 2011)
(when an employer’s justification for terminating an
employee varies over time, “[s]uch shifting and inconsistent
justifications are probative of pretext” (quotation marks
omitted)). To the extent the Hospital is not relying on her
past performance as a basis for termination, however, the
Hospital cannot try to turn around and use past performance
issues as a basis upon which to distinguish Nurse Wheeler
from similarly situated nurses who were not terminated for
their missteps. The Hospital simply cannot have it both ways.
Our decision is bolstered by the identification by the
Hospital in its interrogatory responses of all of the nurses who
had been disciplined by Nurse Hollandsworth in the past five
years. None of the nurses identified by Nurse Wheeler as
having made similar mistakes was on that list. But what is
even more striking is that, according to Nurse Wheeler’s
deposition testimony, none of the nurses on that list is white.
Thus, a jury could reasonably find that Nurse Hollandsworth
had a history of only disciplining non-white nurses, and the
Hospital did not terminate any of the white nurses who
allegedly committed the same class of infraction as Wheeler.
In view of all the evidence, we cannot say that no rational
and reasonable jury could find these nurses to be comparable
to Nurse Wheeler. See Lynn, 160 F.3d at 488. A jury could
reasonably compare other nurses, who each made a mistake
that might rise to the level of “gross misconduct,” with Nurse
Wheeler. To be clear, the Hospital has not presented evidence
that conclusively undermines the veracity of Nurse Wheeler’s
descriptions of the misconduct of the proposed comparators.
Nor has it presented undisputed evidence that Director Howell
and GUH Human Resources did not play a role in the
discipline (or lack thereof) of each of the proposed
18
comparators. As Rule 56 instructs, a movant may assert that a
fact cannot be genuinely disputed by “showing that the
materials cited do not establish the . . . presence of a genuine
dispute, or that an adverse party cannot produce admissible
evidence to support the fact.” FED. R. CIV. P. 56(c)(1)(B). In
the face of the evidence presented by Nurse Wheeler, raising
genuine issues of material fact, the Hospital has failed to
show that the evidence does not establish a genuine dispute.
As such, summary judgment is not warranted.
IV.
For the foregoing reasons, the Hospital’s motion for
summary judgment should have been denied. We reverse the
judgment of the District Court and remand for further
proceedings.
So ordered.