Wilderson v. Univ. of Kan. Hosp. Auth.

1

DENISE WILDERSON, Plaintiff v. UNIVERSITY OF KANSAS HOSPITAL AUTHORITY, Defendant

No. 21-cv-02525-TC

United States District Court, D. Kansas

June 7, 2023

MEMORANDUM AND ORDER

TOBY CROUSE, UNITED STATES DISTRICT JUDGE

Plaintiff Denise Wilderson is a former employee of Defendant University of Kansas Hospital Authority (UKHA). Wilderson alleges that UKHA terminated her in violation of federal law because of her age and retaliated against her for engaging in protected activity. Doc. 47 at ¶ 4.a.i.-vi. UKHA moves for summary judgment on all claims. Doc. 48. For the following reasons that motion is granted.

I

A

Summary judgment is proper under the Federal Rules of Civil Procedure when the moving party demonstrates “that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P 56(a). A fact is “‘material' if it might affect the outcome of the suit under the governing law.” Janny v. Gamez, 8 F.4th 883, 898-99 (10th Cir. 2021) (quoting Allen v. Muskovee, 119 F.3d 837, 839 (10th Cir. 1997)). And disputes over material facts are “‘genuine' if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id. at 899 (quoting Allen, 119 F.3d at 839). Disputes-even hotly contested ones-over facts that are not essential to the claims are irrelevant. Indeed, belaboring such disputes undermines the efficiency Rule 56 seeks to promote.

At this stage, the parties must identify material facts by reference to “pleadings, depositions, answers to interrogatories and admissions on file, together with . . . affidavits, if any.” Sanderson v. Wyo. Highway Patrol, 976 F.3d 1164, 1173 (10th Cir. 2020) (citation and internal quotation marks omitted); see also D. Kan. R 56.1(d). The court “con-strue[s] the factual record and reasonable inferences therefrom in the light most favorable to the nonmovant.” Janny, 8 F.4th at 899 (quoting Allen, 119 F.3d at 839-40). That said, the nonmoving party cannot create a genuine factual dispute by making allegations that are purely con-clusory, id. or unsupported by the record as a whole, Scott v. Harris, 550 U.S. 372, 380 (2007); see also Heard v. Dulayev, 29 F.4th 1195, 1202 (10th Cir. 2022).

The moving party bears the initial burden of showing the absence of any genuine issue of material fact and entitlement to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Savant Homes, Inc. v. Collins, 809 F.3d 1133, 1137 (10th Cir. 2016). Once the moving party meets its burden, the burden shifts to the nonmoving party to demonstrate that genuine issues as to those dispositive matters remain for trial. Celotex, 477 U.S. at 324; Savant Homes, 809 F.3d at 1137.

B

1. UKHA hired Denise Wilderson in 2001 as a cancer treatment nurse. Doc. 53 at ¶¶ 3, 4; Doc. 47 at ¶ 2.a.i Wilderson “transferred to the position of Clinical Nurse Coordinator in the Melanoma Clinic run by Dr. Gary Doolittle” in 2012. Doc. 53 at ¶ 4; Doc. 47 at ¶ 2.a.v. That clinic consisted of Doolittle, Kristen Burkett (a nurse practitioner), two Clinical Nurse Coordinators, and a pharmacist. Doc. 53 at ¶ 6. Burkett joined the team three years after Wilderson. Id. at ¶ 7; Doc. 47 at ¶ 2.a.vi. At the relevant time, Mary Williams was the Nursing Supervisor and Amy Belton was the Nurse Manager. Id. at ¶ 8.

Wilderson's performance at UKHA was checkered. She received verbal counseling in 2011 for frequently leaving the clinic during her shift without notifying staff of her whereabouts, Doc. 53 at ¶ 10; Doc. 49-2 at 57-58, and a written warning in 2012 for being unavailable on multiple occasions, Doc. 53 at ¶ 10; Doc. 49-2 at 59-60. She received a written warning in 2017 for a confrontation with a scheduler, who perceived Wilderson's conduct as “accusatory,” “disrespectful,” and “retaliatory.” Doc. 53 at ¶ 11; Doc. 49-2 at 61-62. Wilderson also received counseling in June 2019 for accessing and printing protected health information and a “Final Written Warning” three months later for falsifying a medical records request. Doc. 53 at ¶ 20; Doc. 49-2 at 73-76.

2. On June 11, 2020, Wilderson and the nurse she was training, Brittni Ridenour left the clinic together for lunch, leaving a gap in coverage at the clinic. Doc. 47 at ¶ 2.a.viii.; Doc. 53 at ¶¶ 41, 44. Before they left, Wilderson informed Burkett, but not the float nurse, that they were leaving. Doc. 53 at ¶¶ 42, 48. Wilderson “mentioned to Ridenour that she thought Burkett was going to be mad.” Id. at ¶ 43.

When they returned, Burkett asked them both to stagger their lunches going forward because she had “realized that she needed to have someone there with her.” Doc. 53 at ¶ 44. Ridenour agreed to the request, but Wilderson objected because she felt that UKHA was failing to abide by its policy to ensure breaks and lunches. Id. at ¶¶ 45, 46. Burkett and Ridenour described Wilderson's response to the request as “argumentative, aggressive, explosive, and [as] having a meltdown.” Id. at ¶¶ 49, 50.

Due to Wilderson's response, Burkett submitted a report documenting the event in which she described feeling “left without assistance of any kind” and that “this [wa]s a reoccurring issue with [Wil-derson].” Doc. 53 at ¶¶ 51, 52; Doc. 49-4 at 18-19. The following day, Williams, Belton, Doolittle, Burkett, and Wilderson met to discuss the events and concluded “that the team was not going to be able to continue functioning in the capacity it was in” due to “multiple issues . . . over a period of years.” Doc. 53 at ¶¶ 53, 57.

The June 11 event triggered the involvement of UKHA's Human Resources staff. Chris Wilson started an investigation into Wilderson's conduct based on Burkett's concerns. Doc. 53 ¶ 58; Doc. 49-9 at 3. Burkett told Wilson that, in addition to the controversy over breaks and lunches, Wilderson had repeatedly failed to follow oral refill chemotherapy protocols. Doc. 49-9 at 3. Those protocols dictate that a Nurse Coordinator must both call the patient and check lab results before he or she sends an oral chemotherapy medication to a provider for a refill “to ensure that the prescription should be refilled.” Doc. 53 at ¶¶ 60, 61. Burkett asserted that Wilderson failed to follow those protocols on several occasions. Id.; Doc. 49-9 at 10. Taylor Monson, a Clinical Pharmacist, confirmed Burkett's concerns regarding the chemotherapy protocols. Doc. 53 at ¶ 62; Doc. 49-9 at 4.

Wilderson and Ridenour were spotted leaving the clinic on two occasions shortly thereafter. On June 18, Williams saw Wilderson and Ridenour leaving the clinic area together and relayed this to Belton. Doc. 53 at ¶¶ 63, 64. A few weeks later, Wilderson asked Ridenour to accompany her to pick up lunch. Doc. 53 at ¶ 65. Wilderson checked out of the clinic and believed that Burkett was aware of her departure. Id. at ¶ 66; Doc. 49-2 at 34. Wilderson thought it was okay to leave because Doolittle was not seeing any patients at that time. Doc. 49-2 at 33. Frustrated by Wilderson's absence, Burkett contacted her own supervisor, Gloria Solis, and Solis relayed Burkett's account to Belton, Wilson, and Lori Rodgers, Director of Nursing. Doc. 53 at ¶ 72. Belton met with Wilderson and Ridenour the following day to discuss the incident, which Ridenour understood to constitute verbal counseling. Id. at ¶ 73-74.

Following that meeting, Burkett submitted two new reports regarding Wilderson's behavior. Doc. 53 at ¶ 78. The first concerned the most recent lunch incident, in which Burkett indicated that “nothing was communicated with [her] prior to them leaving” and she was left seeing patients “without assistance.” Id. at ¶ 69; Doc. 49-4 at 22-23. The second detailed her opinion that she had relayed to HR about Wil-derson's failure to follow the protocols for oral chemotherapy refills. Doc. 53 at ¶¶ 78-80.

3. UKHA terminated Wilderson's employment on July 13, 2020. Doc. 47 at ¶ 2.a.ii.; Doc. 49-2 at 80. At the time of her termination, Wilderson was 51 years old. Doc. 53 at 38. The termination letter cited the three instances when Wilderson left the clinic as well as her “out-burst[s]” toward clinic staff, inadequate patient coverage during working hours, and insubordination. Doc. 49-2 at 78-79. The letter also identified Wilderson's failure to follow oral chemotherapy protocols, which was tied to “at least 3 oral chemo patient safety events or near miss events.” Id. at 79. The most recent of those events was issuing a request to refill a patient's chemotherapy medication after the course had completed, a drug which if taken when no longer needed “could lead to poor outcomes or even death.” Id. Among the decisionmakers were Belton, Williams, and Rodgers as nurse management staff, and Wilson in Human Resources. Doc. 53 at ¶ 83.

Wilderson disagreed with UKHA's termination decision. She claimed that she was not given lunch breaks and that “a handoff was given each time” before she left. Doc. 49-2 at 80. She also noted that the termination was unfair and “completely personal in all aspects,” and that her dedication of more than 20 years to UKHA was “not valued.” Id.

Wilderson appealed her termination through UKHA's three-step grievance process. Doc. 53 at ¶¶ 88, 91. In that process, an employee first submits a grievance to his or her supervisor, who issues a response. Id. at ¶ 91. Second, the employee may elevate the grievance to the department director, who then responds. Id. Third if the employee remains dissatisfied with the responses to the grievance, he or she may appeal to a three-person advisory body of fellow employees empaneled by human resources. Id. That panel considers the grievance, hears from the employee and management, and issues findings and recommendations to the Vice President of Human...