Hansbrough v. Cowan

UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

CAROLYN HANSBROUGH,
Plaintiff-Appellant,

v.
No. 97-2633
MARY FRANCES COWAN; JAMES M.
BURNS, M.D.,
Defendants-Appellees.

Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Claude M. Hilton, Chief District Judge.
(CA-96-1723-A)

Submitted: October 27, 1998

Decided: November 23, 1998

Before ERVIN, WILKINS, and MICHAEL, Circuit Judges.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

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COUNSEL

Thomas Michael Curtis, Alexandria, Virginia, for Appellant. Mark L.
Earley, Attorney General of Virginia, Mary E. Shea, Assistant Attor-
ney General, Richmond, Virginia, for Appellees.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION

PER CURIAM:

Carolyn Hansbrough appeals the district court order granting sum-
mary judgment to the Defendants and dismissing her civil rights
action. Hansbrough, a former public health nurse for the Fauquier
County Health Department, alleged she raised concerns to her super-
visors and co-workers about certain health and safety issues at the
clinic and also filed a complaint with the Department of Labor and
Industry. Hansbrough alleged she was then terminated and a report
questioning her fitness for the nursing profession was filed with the
Department of Health Professions in violation of her First Amend-
ment rights. Finding no reversible error, we affirm.

In July 1994, Hansbrough was hired as a public health nurse for the
Fauquier County Health Department. Her direct supervisors were Dr.
James M. Burns, District Director, and Mary Frances Richmond (then
Cowan), Nurse Supervisor. Hansbrough was hired for a six month
probationary period, during which her performance was reviewed and
evaluated.

During her probationary period, Hansbrough raised numerous con-
cerns to co-workers and her supervisors regarding the safety and
health conditions of the department. Her complaints included: (1) the
failure to provide the staff with tuberculosis respirators during screen-
ing of patients; (2) the failure to use vacutainers rather than drawing
blood samples by syringe; (3) the failure to repair or replace a leaking
autoclave used to sterilize medical instruments; (4) the failure to fol-
low standard protocol with regard to sharps containers; (5) failure to
designate clean areas from contaminated work areas; (6) the failure
to provide bleach bottles for sterilization; and (7) the failure to pre-
vent contamination of cleaned speculums with dirty wash water and
urine specimens that were dumped into the wash sink drain.

Meanwhile, staff nurses notified Richmond of Hansbrough's errors
and work habits. Hansbrough was observed spending hours copying
patient handouts that could have been ordered through the clinic
nurse. She was also observed by staff nurses having difficulty retain-
ing information and needed to be reminded of the needs of new

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patients to a family planning clinic and the protocol for abnormal pap
follow-up review, even though she was thoroughly trained in these
areas. Hansbrough also failed to make an entry noting a patient's
appointment in the appointment book. On November 8, 1994, Rich-
mond advised Hansbrough that she was in danger of not successfully
completing her probationary period.

After that discussion, Hansbrough was discovered to have made
numerous erroneous entries on a patient's chart, including the wrong
blood type. Hansbrough admitted to making all of the erroneous
entries except for the wrong blood type. On November 18, 1994, she
was again advised by Richmond that she faced termination. Three
days later, Hansbrough contacted the Department of Labor and Indus-
try (the "Department of Labor") by telephone and made several com-
plaints regarding the alleged health and safety violations.

It was thereafter brought to Richmond's attention that Hansbrough
violated protocol by disclosing the name of a male patient with a sex-
ually transmitted disease to a female patient. When the matter first
arose, Hansbrough was instructed to tell the female patient's regular
nurse about the situation. Hansbrough instead contacted the female
patient herself.

On December 7, 1994, prior to the conclusion of the probationary
period, Hansbrough was terminated by Richmond and Burns. Accord-
ing to Richmond, several work-related problems arose which led her
to conclude that Hansbrough was not going to adjust satisfactorily to
her position. On or about December 12, 1994, Hansbrough filed her
written complaint with the Department of Labor raising her various
health and safety concerns.

Richmond determined that her reading of Va. Code Ann. § 54.1-
2906 (Michie 1998) obligated her to report the decision to terminate
Hansbrough to the Virginia Department of Health Professions (the
"DHP")1 and Burns agreed. On December 24, 1994, Richmond made
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1 Va. Code § 54.1-2906 provides, in relevant part, as follows:

A. The chief administrative officer and the chief of staff of every
hospital or other health care institution in the Commonwealth

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a report concerning Hansbrough to the DHP.2

On January 3, 1995, an inspector with the Department of Labor
conducted a surprise inspection of the health clinic. There was no evi-
dence that either Richmond or Burns were aware of Hansbrough's
complaints to the Department prior to this inspection. The inspector
concluded that Hansbrough's complaints were either not supported by
his inspection or not health and safety violations. For instance, the
inspector found that tuberculosis respirators were available, sharps
containers were handled appropriately, vacutainers were available
(but not the sole appropriate method for drawing blood), the autoclave
was not leaking to a significant degree, and a clean area was available
for employees. The inspector did not recommend any citations be
issued for any of Hansbrough's complaints. The inspector did recom-
mend issuance of citations for several deficiencies in record keeping
and paperwork necessary to communicate programs to employees.

The district court found that Hansbrough did not engage in speech
concerning a legitimate public concern when she complained to co-
workers, supervisors and the Department of Labor and that her speech
was not a substantial factor in her termination.

We review de novo the district court's decision to grant Defendants
summary judgment. See Halperin v. Abacus Tech. Corp., 128 F.3d
191, 196 (4th Cir. 1997). Summary judgment is appropriate only "if
the pleadings, depositions, answers to interrogatories, and admissions
on file, together with the affidavits, if any, show that there is no genu-
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shall report to the appropriate board the following information
regarding any person licensed by a health regulatory board
unless exempted under subsection D:

3. Any disciplinary action, including but not limited to denial or
termination of employment, denial or termination of privileges
or restriction of privileges, while under investigation or during
disciplinary proceedings, taken or begun by the institution as a
result of conduct involving professional ethics, professional
incompetence, moral turpitude, or substance abuse.
2 After an investigation, the DHP chose not to take any action against
Hansbrough.

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ine issue as to any material fact." Fed. R. Civ. P. 56(c). Rule 56(c)
mandates entry of summary judgment "against a party who fails to
make a showing sufficient to establish the existence of an element
essential to that party's case." Celotex Corp. v. Catrett, 477 U.S. 317,
322 (1986).

In order to demonstrate that her supervisors retaliated against her
for exercising her free speech rights, Hansbrough must make a prima
facie showing that her speech involved a matter of public concern,
that her interest in commenting on the matter outweighed the employ-
er's interest in promoting efficiency, and that it was a substantial or
motivating factor in the adverse employment decisions. See Hughes
v. Bedsole, 48 F.3d 1376, 1385 (4th Cir. 1995). We need not address
whether Hansbrough's speech concerned a matter of public concern
if we conclude that it was not a substantial or motivating factor in her
termination or the report filed with the DHP. Id. at 1386.

With regard to Hansbrough's complaints to co-workers and super-
visors, Hansbrough contends that the temporal proximity of the
adverse employment decisions and the post-hoc rationale for her ter-
mination create an inference that her termination was due to her com-
plaints. There is no evidence in the record to support Hansbrough's
contention that the reasons given by the employer for her termination
were not articulated until after her termination. She was warned on
two separate occasions, once in writing, that she was in danger of not
successfully completing her probationary period. Hansbrough was
informed that it was noted that she was having difficulty retaining
information, that it appeared she was not reading her training materi-
als, and that she made erroneous entries to a patient's chart.3

Temporal proximity alone is insufficient to create a genuine issue
of material fact. The fact that Hansbrough's termination and the filing
of a report with the DHP followed her conduct does not, by itself,
indicate that her conduct was a substantial or motivating factor for her
employer. See Hughes, 48 F.3d at 1387-88; see also Bailey v. Floyd
County Bd. of Educ., 106 F.3d 135, 145 (6th Cir. 1997) (employee
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3 The fact that the DHP chose not to take any action against Hans-
brough is not relevant to the issue of whether there were legitimate rea-
sons to terminate Hansbrough's employment.

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must link the speech in question to the adverse employment decision).
We note there was no link between Hansbrough's filing of the com-
plaint with the Department of Labor and the adverse employment
decisions because there was no evidence that either of her supervisors
was aware of the complaint until after the adverse employment deci-
sions were made.

Thus, we conclude that Hansbrough failed to show that her conduct
was a substantial or motivating factor for her supervisors when mak-
ing the adverse employment decisions. We therefore affirm the order
of the district court. We dispense with oral argument because the facts
and legal contentions are adequately presented in the materials before
the court and argument would not aid the decisional process.

AFFIRMED

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