Kuznarowis v. Tobey Hospital

United States District Court

District of Massachusetts

)

Lee Kuznarowis, )

)

Plaintiff, )

)

v. ) Civil Action No.

) 16-11432-NMG

Tobey Hospital and Southcoast )

Health Systems, Inc., )

)

Defendants. )

MEMORANDUM & ORDER

GORTON, J.

This case involves allegations of discrimination by Tobey

Hospital (“the Hospital”) and its operator Southcoast Health

Systems, Inc. (collectively “defendants”) against Lee Kuznarowis

(“Kuznarowis” or “plaintiff”), a registered nurse,. Plaintiff

asserts that defendants 1) violated the Age Discrimination in

Employment Act of 1967 (“ADEA”), 29 U.S.C. § 621 et seq., (Count

I) 2) discriminated against him based on age in violation of

M.G.L. c. 151B § 4, (Count II) 3) violated Title VII of the

Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., (Count III)

4) discriminated against him based on gender in violation of

M.G.L. c. 151B § 4, (Count IV) 5) retaliated against him in

violation of Title VII of the Civil Rights Act of 1964, 42

U.S.C. § 2000e–3(a), (Count V) 6) retaliated against him in

violation of ADEA, 29 U.S.C. § 621 et seq., (Count VI) and 7)

retaliated against him in violation of M.G.L. c. 149 §185 (Count

VII).

Defendant moves for summary judgment on all claims.

Because no genuine issues of material fact exist as to any

claim, defendant’s motion for summary judgment will be allowed.

I. Background

In 1993, the Hospital hired Kuznarowis, then 33 years old,

as a Respiratory Therapist. He began working as a Registered

Nurse at the Hospital in approximately 2000. He was first

assigned to the Intensive Care Unit as an ICU RN but then re-

assigned to the Perioperative Department. In 2013 and 2014, his

staff performance evaluation rated him between a “good, solid

performer” and an “excellent performer”.

Lynn Bordwick (“Bordwick”), the Perioperative Department

Nurse Manager at the Hospital, became plaintiff’s manager in

2006. Bordwick informed the Post Anesthesia Care Unit (“PACU”)

that length of stay was a concern and that patients should be

discharged from PACU once they met clinical criteria.

In October, 2013, plaintiff applied for a Team Leader

position at the Hospital, for which he was qualified. Bordwick

was responsible for hiring the Team Leader. Tara Ignacio

(“Ignacio”), a female nurse with less experience than plaintiff

was ultimately selected for the position.

In August, 2014, Ignacio yelled at Kuznarowis to move a

female patient along more quickly. Kuznarowis responded that he

was charting and that he would move the patient when he was

finished. Kuznarowis complained of Ignacio’s behavior to Sue

Gillis (“Gillis”), the lead RN.

In October, 2014, plaintiff, Bordwick, Associate Chief

Nursing Officer Susan Mangini (“Mangini”) and Human Resources

representative Janet Peirce (“Peirce”) met to discuss Bordwick’s

concerns about plaintiff. Bordwick told Mangini that Kuznarowis

tended to keep his patients longer than other RNs and that her

prior experience indicated that extended patient stays and

missing documentation were indicative of possible drug

diversion. The parties dispute whether, during that meeting,

plaintiff was accused of having a substance abuse problem. At

the conclusion of the meeting, Kuznarowis was placed on leave.

On November 20, 2014, plaintiff was terminated. The person

hired to replace him in PACU was Scott Rounseville, a male five

years older than Kuznarowis. Mangini prepared a complaint

against Kuznarowis which a Southcoast HR manager filed with the

Board of Registration in Nursing (“BORN”) in December, 2014.

Plaintiff maintains that the Hospital used manipulated data to

demonstrate that he was dispensing more controlled substances

than the other nurses. He argues that the standard deviation

analysis used by the Hospital to document deficiencies in his

performance was attributable to the entire staff, not solely to

his practices.

On September 8, 2015, Kuznarowis filed a charge of

discrimination with the Equal Employment Opportunity Commission

(“EEOC”). In July, 2016, plaintiff brought this suit against

defendants. They subsequently filed their pending motion for

summary judgment which is the subject matter of this memorandum.

II. Analysis

The role of summary judgment is “to pierce the pleadings

and to assess the proof in order to see whether there is a

genuine need for trial.” Mesnick v. Gen. Elec. Co., 950 F.2d

816, 822 (1st Cir. 1991). The burden is on the moving party to

show, through the pleadings, discovery and affidavits, “that

there is no genuine dispute as to any material fact and that 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.” Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 248 (1986). A genuine issue of material

fact exists where the evidence with respect to the material fact

in dispute “is such that a reasonable jury could return a

verdict for the nonmoving party.” Id.

If the moving party has satisfied its burden, the burden

shifts to the non-moving party to set forth specific facts

showing that there is a genuine, triable issue. Celotex Corp. v.

Catrett, 477 U.S. 317, 324 (1986). The Court must view the

entire record in the light most favorable to the non-moving

party and indulge all reasonable inferences in that party's

favor. O’Connor v. Steeves, 994 F.2d 905, 907 (1st Cir. 1993).

Summary judgment is appropriate if, after viewing the record in

the non-moving party's favor, the Court determines that no

genuine issue of material fact exists and that the moving party

is entitled to judgment as a matter of law.

A. Timeliness

Under the relevant statutes of limitations, plaintiff is

required to file a charge of discrimination within 300 days

after the unlawful employment practice occurred. 42 U.S.C. §

2000e-5(e)(1) (“. . . within three hundred days after the

alleged unlawful employment practice occurred . . .”); cf. 29

U.S.C. § 626(d)(1)(B) (“. . . within 300 days after the alleged

unlawful practice occurred . . .”); M.G.L. c. 151B, § 5 (“Any

complaint filed pursuant to this section must be so filed within

300 days after the alleged act of discrimination.”). Kuznarowis

filed his charge with the EEOC on September 8, 2015.

Accordingly, acts that occurred before November 14, 2014, are

not actionable.

Plaintiff concedes that the continuing violation doctrine

does not resuscitate the untimely acts but submits that

incidents before November 14, 2014, serve as “background

evidence”. Such incidents may be considered if the prior

actions are of “the same type of discriminatory act or practice

[that] has been timely challenged.” Rathbun v. Autozone, Inc.,

361 F.3d 62, 76 (1st Cir. 2004) (citing United Air Lines, Inc.

v. Evans, 431 U.S. 553, 558 (1977). Similarly, acts that

occurred subsequent to the challenged acts may be referenced so

long as they are relevant. Id.

Untimely allegations such as the hiring of Ignacio as Team

Leader in 2014 cannot serve as the basis for a claim. See Rivera

v. Puerto Rico Aqueduct & Sewers Auth., 331 F.3d 183, 188 (1st

Cir. 2003). Each “discrete discriminatory act transpires only

at the time it takes place.” Id. (citing National R.R. Passenger

Corp. v. Morgan, 536 U.S. 101 (2002)). Thus, the only timely

act upon which plaintiff may rely is his November 20, 2014,

termination.

B. Age and gender discrimination

Under both state and federal law, it is unlawful for a

private sector employer to discharge an employee because of his

age or gender. 29 U.S.C. § 621 et seq.; M.G.L. c. 151B § 4; 42

U.S.C. § 2000e et seq.; M.G.L. c. 151B § 4.

Where an employee lacks direct evidence that an employer's

actions were motivated by animus, Massachusetts and federal

courts apply the burden-shifting framework outlined in McDonnell

Douglas Corp. v. Green, 411 U.S. 792 (1973). See

Haddad v. Wal-Mart Stores, Inc., 455 Mass. 91, 97 (2009) (citing

McDonnell Douglas, 411 U.S. at 802); Mulero–Rodriguez v. Ponte,

Inc., 98 F.3d 670, 673 (1st Cir. 1996). Under that framework,

1) the plaintiff must establish a prima facie case of

discrimination 2) the defendant may rebut that case by offering

a legitimate, nondiscriminatory reason for its employment

action, requiring plaintiff 3) to produce evidence demonstrating

that defendant’s stated reason was a pretext. Haddad, 455 Mass.

at 97 n. 14; Ingram v. Brink’s, Inc., 414 F.3d 222, 230 (1st

Cir. 2005). The “elements of the prima facie case will vary

depending on . . . the type of discrimination alleged” and the

protected category at issue. Knight v. Avon Prod., Inc., 438

Mass. 413, 420 n. 4 (2003).

To establish a prima facie case of discrimination, a

plaintiff must demonstrate that

(1) [he is] a member of a protected class; (2) [he is]

qualified for [his] job; (3) [he] suffer[ed] an adverse

employment action at the hands of [his] employer; and (4)

[there is] some evidence of a causal connection between

[his] membership in a protected class and the adverse

employment action.

Garmon v. Nat’l R.R. Passenger Corp., 844 F.3d 307, 313 (1st

Cir. 2016) (quoting Bhatti v. Trs. of Bos. Univ., 659 F.3d 64,

70 (1st Cir. 2011)); Knight, 438 Mass. at 423 (requiring a

“logical connection between each element of the prima facie case

and the illegal discrimination”) (quoting O’Connor v.

Consolidated Coin Caterers Corp., 517 U.S. 308, 311–312 (1996)).

In response to the plaintiff's establishment of a prima

facie case, the employer can rebut the presumption of

discrimination “by articulating a legitimate, nondiscriminatory

reason for its . . . decision.” Blare v. Husky Injection Molding

Sys. Boston, Inc., 419 Mass. 437, 441 (1995); Ingram, 414 F.3d

at 230. If the employer does so, the plaintiff must then

demonstrate that the defendant's proffered reason for its

employment decision was not the real reason but rather a pretext

for discrimination. Ingram, 414 F.3d at 230; Lipchitz v.

Raytheon Co., 434 Mass. 493, 501 (2001). Under Massachusetts,

but not federal, law “if the fact finder is persuaded that one

or more of the employer’s reasons is false,” it may infer a

discriminatory motive. Lipchitz, 434 Mass. at 501.

1. Prima facie case of age discrimination

Scott Rounseville, who replaced plaintiff in the PACU, is

male and five years older than plaintiff. An inference of

unlawful discrimination “cannot be drawn from the replacement of

one worker with another worker insignificantly younger.”

O’Connor, 517 U.S. at 312-13; cf. Knight, 438 Mass. at 425 (“We

conclude that an age disparity of less than five years, by

itself, is too insignificant to support a prima facie case of

age discrimination.”). Because plaintiff has not shown a

“causal connection” between his termination and his age, he has

failed to make a prima facie case of age discrimination under

federal and state law. “While the burden of establishing a

prima facie case is not onerous, the plaintiff” is still

required make his case. Garmon v. Nat’l R.R. Passenger Corp.,

844 F.3d 307, 313 (1st Cir. 2016).

Defendant’s motion for summary judgment will, with respect

to Counts I and II, be allowed.

2. Legitimate, nondiscriminatory reason

Plaintiff declares that “Tobey’s complaint to the Board is

the only reason it can use for firing Lee.” Defendants respond

that plaintiff was terminated because of his “substandard

medication administration and documentation practices” and his

inability to explain those discrepancies.

Associate Chief Nursing Officer Susan Mangini reviewed

PACU, patient medical and pharmacy department records for

patients of all nurses in the PACU. That review identified

unexplained narcotics and medication discrepancies in

Kuznarowis’s documentation. The Hospital met with plaintiff on

four occasions to discuss the results of that investigation.

According to the Hospital, Kuznarowis was placed on leave, and

ultimately terminated, because of his suspicious and subpar

handling of narcotics and other medications.

Plaintiff rejects that purported reason for his

termination. He maintains that “it would not be possible for

Mangini” to review the volume of documentation that she claims.

He insists that the Hospital’s story is contradictory because

“either Mangini was conducting a review of all nurses or she

reviewed the records for the plaintiff.” Nowhere does he point,

however, to any specific facts demonstrating that the Hospital

terminated him because of his age or gender. Likewise, he

proffers no facts demonstrating that defendants’ stated

consideration of narcotic and medication administration was

pretextual. “The mere allegation of an illegal motive” is

insufficient to survive summary judgment. Barss v. Tosches, 785

F.2d 20, 22 (1st Cir. 1986). Plaintiff offers nothing more.

Kuznarowis challenges the Hospital’s account of certain

events. The relevant inquiry does not, however, depend on their

accuracy but rather on the employer’s

explanation of its conduct, together with any other

evidence, [that] could reasonably be seen by a jury not

only to be false

but to suggest discriminatory animus. Ronda-Perez v. Banco

Bilbao Vizcaya Argentaria--Puerto Rico, 404 F.3d 42, 44 (1st

Cir. 2005). Here, the plaintiff has proffered no such evidence.

“Casting aspersions is not enough.” Murray v. Kindred Nursing

Centers W. LLC, 789 F.3d 20, 27 (1st Cir. 2015).

Murray bears striking similarities to this case. In both

cases, plaintiff-nurses sued for discrimination after they were

terminated for allegedly diverting drugs. As the Murray court

made clear,

Whether [plaintiff] actually diverted drugs is of no

moment. [Defendant’s] reasonable suspicion was sufficient

to justify terminating [plaintiff’s] employment.

Id. at 26.

Under Massachusetts law, “if the fact finder is persuaded

that one or more of the employer's reasons” is dissembling, it

may infer a discriminatory motive. See Lipchitz v. Raytheon Co.,

434 Mass. 493, 501 (2001). Even under that more favorable

framework, however, an employee only prevails when an

explanation has “no reasonable support in the evidence or is

wholly disbelieved (and hence is transparently a pretext).”

Blare v. Husky Injection Molding Sys. Boston, Inc., 419 Mass.

437, 443 (1995) (quoting Wheelock Coll. v. Massachusetts Comm’n

Against Discrimination, 371 Mass. 130, 138 (1976)). The

Hospital’s decision to terminate Kuznarowis because of

irregularities in his narcotics management is a sufficient

legitimate, non-discriminatory reason. Plaintiff has failed to

rebut it.

Even if plaintiff had demonstrated a prima facie case of

age discrimination, this Court finds that he failed to prove

that defendants’ legitimate, non-discriminatory reason was

pretextual as to those claims.

Defendant’s motion for summary judgment will, with respect

to Counts III and IV, be allowed.

C. Retaliation

Plaintiff submits that, on separate occasions, he

“complained about being yelled at” and about “being treated

differently.” Specifically, on October 6, 2014, Kuznarowis told

his supervisors that “he felt that he was being singled out.”

To make a prima facie case of retaliation, a plaintiff

must show that (1) she undertook protected conduct; (2) she

suffered an adverse employment action, and (3) the two were

causally linked.

Cherkaoui v. City of Quincy, 877 F.3d 14, 28 (1st Cir. 2017)

(quoting Noviello v. City of Boston, 398 F.3d 76, 88, (1st Cir.

2005)); Mole v. Univ. of Massachusetts, 442 Mass. 582, 591-92

(2004) (applying Massachusetts law).

Complaining about being yelled at by a boss is not

protected by federal or state retaliation laws. Protected

activities are actions “taken to protest or oppose statutorily

prohibited discrimination.” Fantini v. Salem State Coll., 557

F.3d 22, 32 (1st Cir. 2009); cf. M.G.L. c. 151B § 4(4) (making

it an unlawful practice for an employer to “discriminate against

any person because he has opposed any practices forbidden under

this chapter or because he has filed a complaint, testified or

assisted in any proceeding” related to an MCAD complaint).

Plaintiff made no formal complaint of discrimination nor is

there evidence that his comments about unfair treatment

concerned discriminatory treatment. Having “a boss who is

tough, insensitive, unfair or unreasonable” may be

discomforting, Ahern v. Shinseki, 629 F.3d 49, 59 (1st Cir.

2010), but it is not prohibited under Title VII or M.G.L.

c. 151B. Plaintiff has failed to demonstrate that he engaged in

protected activity.

Plaintiff insists that “both complaints establish temporal

proximity,” but “chronological proximity does not by itself

establish causality.” Wright v. CompUSA, Inc., 352 F.3d 472, 478

(1st Cir. 2003). The non-moving party at the summary judgment

stage must set forth specific facts showing that there is a

genuine, triable issue. See Celotex, 477 U.S. at 324. Plaintiff

has failed to set forth such required facts demonstrating

causation.

Finally, although the claim fails on its merits, the

cursory explanation plaintiff offers with respect to his

retaliation claims are insufficient and would result in a waiver

of that claim in any event. See Photographic Illustrators Corp.

v. Orgill, Inc., 118 F. Supp. 3d 398, 411 (D. Mass. 2015)

(quoting United States v. Zannino, 895 F.2d 1, 17 (1st

Cir.1990)) (“[I]ssues adverted to in a perfunctory manner,

unaccompanied by some effort at developed argumentation, are

deemed waived.”).

Defendant’s motion for summary judgment will, with respect

to Count VI, be allowed.

D. Whistleblower claim

Plaintiff has not opposed defendant’s motion for summary

judgment as to his whistleblower claim. That claim is therefore

waived. See id. Even if it were not waived it would be

unavailing because the Massachusetts whistleblower statute

applies only to public sector employees, which Kuznarowis was

not. Welch v. Ciampa, 542 F.3d 927, 942 (1st Cir. 2008); M.G.L.

c. 149 § 185(a)(2) (defining “employer” as “the commonwealth,

and its agencies or political subdivisions, including, but not

limited to, cities, towns, counties and regional school

districts, or any authority, commission, board or

instrumentality thereof.”). The statute offers plaintiff no

relief.

Defendant’s motion for summary judgment will, with respect

to Count VII, be allowed.

ORDER

For the foregoing reasons, defendants’ motion for summary

judgment (Docket No. 44) is ALLOWED.

So ordered.

/s/ Nathaniel M. Gorton_____

Nathaniel M. Gorton

United States District Judge

Dated June 28, 2018