United States Court of Appeals
For the First Circuit
No. 00-1067
DOLORES GRIEL,
Plaintiff, Appellant,
v.
FRANKLIN MEDICAL CENTER AND
WILLIAM GARRAND,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Michael A. Ponsor, U.S. District Judge]
Before
Torruella, Chief Judge,
Boudin and Lynch, Circuit Judges.
Mark H. Bluver with whom Susan E. Zak and Shatz, Schwartz
and Fentin, P.C. were on brief for appellant.
Jay M. Presser with whom Skoler, Abbott & Presser, P.C. was
on brief for appellees.
December 7, 2000
Per Curiam. In this employment discrimination action,
appellant Dolores Griel alleges that she was wrongfully
terminated as a nurse in the critical care unit of appellee
Franklin Medical Center. She claims that the discharge occurred
because of her status as a recovering drug addict and thereby
violated the Americans with Disabilities Act, the Rehabilitation
Act of 1973, and the Massachusetts anti-discrimination statute.1
Appellee pointed to evidence showing that the discharge took
place after incidents in which Griel had violated protocol
requirements during the care of patients. The district court
granted summary judgment, finding that no reasonable jury could
disbelieve this asserted, nondiscriminatory reason.
Because the evidence is set forth in detail in the
district court opinion, see Griel v. Franklin Med. Ctr., 71 F.
Supp. 2d 1, 4-6 (D. Mass. 1999), we confine ourselves to a very
brief description. Griel was hired in July 1992, after she
candidly acknowledged that she was a recovering drug addict who
had previously been terminated for diverting narcotics in
another hospital. At the time of hiring, she was involved in a
1
Americans with Disabilities Act, 42 U.S.C. §§ 12101-12117;
the Rehabilitation Act of 1973, 29 U.S.C. § 794; the
Massachusetts anti-discrimination act, Mass. Gen. Laws ch. 151B.
-2-
five-year rehabilitation program to assist nurses in the
situation. For several years she performed well at the
hospital, but in 1995 she injured her back while lifting a
patient and had to take a year away from Franklin, taking a
prescribed narcotic for pain control.
On her return to Franklin in late 1996, a co-worker
raised concerns about Griel's nursing, and an acting supervisor
concluded that Griel's patients were receiving narcotics too
readily and in excessive amounts. Griel was briefly suspended
and after a new manager took charge, he agreed with the concerns
and brought Griel back to work with restrictions. Thereafter,
a report was made that Griel had been rummaging through
discarded medication bottles and she was asked to take a drug
test. After some delay, Griel took the test and the report was
negative.
In March 1997, Griel returned to work without
restrictions but in the course of the next two weeks there
occurred two more incidents. First, Griel asked a new nurse to
administer a drug drawn by Griel--a violation of protocol--and
then initially denied doing so before she ultimately admitted
it. Thereafter, Griel administered a dose of drugs to another
patient without acquiring the required co-signature for surplus
narcotics that she wasted or recording one of the doses in the
-3-
medication records or her nurse's notes. After a disciplinary
hearing, Griel was terminated as presenting an unacceptable risk
to patient safety.
At the summary judgment stage, Griel relied primarily
upon the presumption and burden-adjusting framework established
in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
Recognizing that Franklin had proffered an explanation for
discharge that was on its face nondiscriminatory, she
concentrated her attack on showing that the explanation was
pretextual--or at least that there was enough evidence to take
this issue to a jury--by showing that many others nurses had
made errors in narcotics administration without being dismissed
and that in specific cases other nurses were given verbal or
written warnings or were required to take training to remedy
mistakes. After discussing the evidence on both sides, the
district court concluded that there was "no evidence that would
remotely justify a jury in concluding [that] a nurse who was not
a former substance abuser, and who committed a similar pattern
of similar mistakes, was not (or would not have been)
terminated." Griel, 171 F. Supp. 2d at 12.
Our review of the entry of summary judgment is de novo,
and we take the inferences in the light most favorable to the
nonmoving party. See Thomas v. Eastman Kodak Co., 183 F.3d 38,
-4-
47 1st Cir. 1999), cert. denied, 120 S. Ct. 1174 (2000).
Griel's main challenge in this appeal is to the district court's
assessment of the evidence. Specifically, Griel points out that
her own experts defended Griel's substantive decisions as to
drugs administered to patients that worried hospital managers;
she says that there was direct evidence of animus against her;
and she says that her protocol violations were ameliorated by
surrounding circumstances and by the fact that they occurred
often enough with other nurses.
If the question in this case was whether Griel's
medical choices were defensible, quite possibly the expert
evidence she offered would have created a jury issue. But the
ultimate issue in a discrimination case is whether the
hospital's reason for discharging her was because it believed
that she was not a safe nurse, primarily because of violations
of protocol in the administration of narcotics and, in
particular, on Griel's violation of the "you draw, you
administer" rule. "The evidence is essentially unrebutted that
violating this rule is rare and very serious [and] [a]lthough
plaintiff's experts rebut the seriousness and rarity of the
documentation and co-sign problems, they are conspicuously
silent about Griel's violation of this rule." Griel, 71 F.
Supp. 2d at 12 (footnote omitted).
-5-
Next, it is quite true that there was some evidence
that the hospital was especially concerned when Griel,
apparently recovered from her past affliction, began to make
substantive medical decisions that managers thought indicated an
excessive propensity to prescribe narcotics. But the remarks
were triggered by what the managers deemed to be over-
prescription; and as the district court pointed out, there is no
direct link between the remarks and any disparate treatment of
Griel by the hospital. Griel, 71 F. Supp. 2d at 13. It was
only after the incident of protocol violation that Franklin
undertook to terminate Griel.
Lastly, the district court took full account of
evidence indicating that other nurses were not discharged, or in
some cases even disciplined, for individual mistakes. But the
district court properly pointed out that no other nurse was
identified as committing a series of protocol mistakes in a
rather brief period, one of which was an extremely serious
violation; and while the hospital did not fire the nurse who
actually administered the drugs for Griel in violation of the
"you draw, you administer" rule, she was a new and inexperienced
nurse who forthrightly acknowledged her mistake, while Griel
"equivocated." Griel, 71 F. Supp. 2d at 12. And there was
evidence that Franklin had terminated nurses for serious
-6-
violations of hospital rules, even though there was no exact
counterpart to Griel's case. Id.
We thus agree with the district court that Griel's
evidence did not provide a reasonable jury any basis to doubt
that the hospital's motive in discharging Griel was a genuine
concern about her nursing practices. Griel cites our recent
decision in Dominguez-Cruz v. Suttle Caribe, Inc., 202 F.3d 424
(1st Cir. 2000), but we see no inconsistency. In that case,
involving age discrimination, we found that the employer had
given different and arguably inconsistent explanations for the
termination, and that there was affirmative evidence to suggest
that the principal explanation was not in fact the true reason
for the termination. See id. at 431-32. This alone explains
why Dominguez-Cruz is not in point.
The legal framework for analyzing discrimination claims
has been altered since the district court's decision by Reeves
v. Sanderson Plumbing Products, Inc., 120 S. Ct. 2097 (2000),
and--in Massachusetts--by Abramian v. President & Fellows of
Harvard College, 731 N.E.2d 1075 (Mass. 2000). We have
discussed these developments in Fite v. Digital Equipment Corp.,
2000 WL 1672806 (1st Cir., Nov. 13, 2000), and mention the
decisions only to say that their clarifications of federal and
-7-
Massachusetts law do not affect the disposition of the present
case.
Affirmed.
-8-