Opposition Brief — Wallace v. Methodist Hospital System

ee ———_—

Suvreue Court Dea

| FILED

No. 01-1358 | APR 15 2002

In The - ecieelmeceaman

Supreme Court of the United States

VERONICA A. WALLACE,

Petitioner,

THE METHODIST HOSPITAL SYSTEM,

Respondent.

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Fifth Circuit

.

RESPONDENT’S BRIEF IN OPPOSITION

o

JULIANN H. PANAGOos MicHaet H. Rusin

Counsel of Record McGuINcHEY STAFFORD, PLLC

M. LucittE ANDERSON 9th Floor, One American

McG.uINcHEY. STAFFORD, PLLC Place

1001 McKinney, Suite 1500 Baton Rouge, Louisiana

Houston, Texas 77002 70825

(713) 520-1900 (225) 383-9000

Attorneys for Respondent

The Methodist Hospital System

COCKLE LAW BRIEF PRINTING CO, (800) 225-6964

OR CALL COLLECT (402) 342-2831

QUESTION PRESENTED

Respondent The Methodist Hospital System dis-

agrees with Petitioner’s questions for review. The appro-

priate question is:

1. When the appellate decision below expressly

relies upon Reeves v. Sanderson Plumbing Products,

Inc., 530 U.S. 133 (2000), and when the Fifth Cir-

cuit Court has consistently acknowledged and

followed Reeves, should this Court address a deci-

_ sion of a court of appeals based on general asser-

tions that such decision does not comport with

Reeves?

|

il

PARTIES TO THE PROCEEDING

AND CORPORATE DISCLOSURE STATEMENT

The Petitioner is correctly identified in the caption.

Petitioner’s counsel are Beatrice Mladenka-Fowler, as

counsel of record, and Shannon Breaux Sauceda of

Mladenka-Fowler & Associates.

Respondent is correctly identified in the caption. The

Methodist Hospital System, currently known as The

Methodist Healthcare System, is a private, not-for-profit

organization comprised of two holding companies, The

Methodist Hospital Foundation and TMH Health Care

Group. Respondent’s counsel are Juliann H. Panagos, as

counsel of record, Michael H. Rubin and M. Lucille

Anderson of McGlinchey Stafford, PLLC.

TABLE OF CONTENTS

Page

SPE EEINS SUE RUA. cocccccecccsesesecsensewen i

PARTIES TO THE PROCEEDING AND CORPORATE

ERR EAPO STATEMMEINE fics ccc cccccccncwnccce ii

pe Be oye 8 ey. re Vv

BEAR eeeeee CP Tike CASE... cc ccccc nc ccecssccees 1

ee rer rrr rer rrr errr rer 1

WCUOUD DIO W. 5 iwc ccc cece cecccncces 9

SUMMARY OF THE ARGUMENT ................. 10

ives sea e bea ueee eee. eess eka ees 11

I. The Facts of the Case Militate Against the

Cer OF UO WUE oc ww ccc ccccceessces. 11

A. This Case Does Not Meet Any of the

Usual and Customary Criteria for Grant-

ing a Writ of Certiorari.................. 11

B. Wallace Seeks Review of Factual Findings

After Conceding Legitimate Business Rea-

sons for Her Termination and Admitting

Violations of Hospital Policy ............ 13

C. The Decision Below Is Consistent with

ae a ee eS ews eee 16

II. It Is Well-Settled That Appellate Courts May

Determine Legal Sufficiency of the Evidence

Pursuant to Rule 50 of the Federal Rules of

ID wing ioc bei anunceedves seeessens 18

Ill. The Fifth Circuit Court Did Not Improperly

Comment on Weight of Evidence............ 19

iV

TABLE OF CONTENTS - Continued

Page

IV. Wallace Seeks an Advisory Opinion from this

Court on Established Fifth Circuit Jurispru-

OE EP STL EET UN OT PTET Tere Te TET Tee Te 21

A. The Proper Analysis for a “Work-Rule Vio-

lation” Is “Nearly Identical” Conduct That

Did Not Result in Termination .......... 21

B. The Court of Appeals Properly Assessed

Remarks Presented by Wallace as Stray under

the Express Parameters of Reeves .......... 24

fe ok 3 Pere errr rrr Terry ye ere ree 28

TABLE OF AUTHORITIES

Page

CASES

Aka v. Washington Hospital Center, 156 F.3d 1284

ee. ee ee ee i aa wee ae nee es 18

Auguster v. Vermilion Parish School Board, 249 F.3d

ok. ge ee reer erery errr ererrr yerrry —

Blow v. City of San Antonio, Texas, 236 F.3d 293 (5th

Cir. 2001), reh’g en banc dented, 250 F.3d 745 (5th

ae) rrr reer rrr er rrr rere Se E> 13

Brown v. CSC Logic, Inc., 82 F.3d 651 (5th Cir. 1996) .... 26

Davin v. Delta Air Lines, Inc., 678 F.2d 567 (5th Cir.

Sd St Perera rer ere Terr TT eee Te 24

Evans v. City of Bishop, 238 F.3d 586 (5th Cir. 2000) .... 13

Fisher v. Vassar College, 114 F.3d 1332 (2nd Cir.

1999) (en banc), cert. denied, 522 U.S. 1075 (1998) .... 18

Little v. Republic Refining Co., 924 F.2d 93 (5th Cir.

RON eudicduvackdseee teases cs stan eee 22

Mayberry v. Vought Aircraft Co., 55 F.3d 1086 (5th

Cae See onkee dan cccendasetvens settee ees 22, 24

Okoye v. The University of Texas Houston Health

Science Center, 245 F.3d 507 (5th Cir. 2001)........ 24

Price Waterhouse v. Hopkins, 490 U.S. 228 (1989)...... 26

Ratliff v. City of Gainesville, Texas, 256 F.3d 355 (5th

Ss EE spb ddnae Boa ene eae ror aes 13

Reeves v. Sanderson Plumbing Products, Inc., 530

[CE aco ka chee otac es ee eee passim

Rhodes v. Guiberson Oil Tools, 75 F.3d 989 (5th Cir.

SE eke ala ds heuke cad bas Paaw seetaaarereen 13

vi

TABLE OF AUTHORITIES - Continued

Page

Rubinstein v. Administrators of Tulane Educational

Fund, 218 F.3d 392 (5th Cir. 2000), reh’g en banc

denied, 232 F.3d 212, cert. denied, 532 U.S. 937

ERPED o-0 6-6.0:6600.00.060484000000 neu eLE OA ee

Russell v. McKinney Hospital Venture, 235 F.3d 219

Re Sa, Ss a 50g 05 00ecnbunbacaveawataees 12, 13, 25

St. Mary's Honor Center v. Hicks, 509 U.S. 502

TOO Ses cb cu cucaseeenttevarsenre ese 19

Smith v. Wal-Mart Stores, 891 F.2d 1177 (5th Cir.

EN sn 0060660066600 0406 0406 kh eRe REO

Urbano v. Continental Airlines, Inc., 138 F.3d 204

Ee | re rr rr ee te 17

Vadie v. Mississippi State University, 215 F.3d 365

ON GE Bs nhc ccccccsucetanaevesesabenekeeneu 12

Vance v. Union Planters Corp., 209 F.3d 438 (5th Cir.

Wallace v. The Methodist Hospital System, 271 F.3d

ros ai. Ce Ay |; ) ereerneen 10, 12, 22, 25

Wallace v. The Methodist Hospital System, 85

F.Supp.2d 699 (S.D. Tex. 2000) .......ccccccccsces 10

Weisgram v. Marley Co., 528 U.S. 440 (2000).......... 19

STATUTES AND RULES

United States Supreme Court Rule 10............. 8, 12

Federal Rule of Civil Procedure 50........ 9, 10, 18, 19

Tax. Occ. Cone & SOL, €F O08... ccccccccescccccvecs 14, 15

STATEMENT OF THE CASE

Respondent does not agree with the accuracy of the

Petitioner's statement of facts. The following undisputed

facts are relevant to the lower courts’ determination that

Respondent was entitled to judgment as a matter of law.’

A. Statement of Facts

Petitioner Veronica Wallace (“Wallace”) was

employed by the not-for-profit Methodist Hospital

(“Methodist”), part of Respondent The Methodist Hospi-

tal System.? Wallace worked in the Medical Intensive

Care Unit (MICU) where doctors and nurses care for the

most critically ill patients in the hospital.* Every patient

in the MICU suffers from multi-system organ failure.*

Methodist’s policies governing nursing and employee

actions are designed to avoid life threatening activities

and ensure outstanding care.> Compliance with written

policy is imperative.®

1 Citations to the record on appeal are referred to as “R.”

and citations to the trial transcript are referred to as “Tr.” The

trial transcript does not reflect record page numbers, but

instead is included in R. 122-26.

2 Methodist provides integrated health care, educational

and research opportunities. Tr. 192, 233 (Wallace); Tr. 1043

(Hahus).

3 Tr. 187 (Wallace). The Doctors who practice at Methodist

are not employed by Methodist, but by Baylor College of

Medicine. Tr. 52.

4 Tr. 187 (Wallace).

5 Tr. 769 (Dr. Lloyd).

6 Tr. 760 (Dr. Lloyd).

Wallace, who had previously worked as a student

nurse at Methodist, was hired in September 1992 at a time

when she was known to be five months pregnant.” The

person who hired her at that time and who supervised

her through the time of dismissal was Donna Hahus

(“Hahus”).§

Wallace took three-and-a-half months of maternity

leave for the birth of her first child in 1993, with full pay

and benefits.? After the birth of Wallace’s child, Hahus

complied with Wallace’s request for primarily weekend

hours, facilitating Wallace’s child care responsibilities.!°

During her second maternity leave in the spring of 1994,

Wallace took thirteen and a half weeks of paid leave from

March 2, 1994 through June 4, 1994.11 As a courtesy,

Hahus allowed Wallace to enter her March 1994 time off

as an “excused absence,” so that Wallace could receive

four additional weeks of paid vacation.!?

In June 1994, in mandated compliance with the fed-

eral Clean Air Act,’* Methodist offered a compressed

7 Tr. 204-05, 215 (Wallace); Tr. 542-43 (Hahus); PX 2 (offer

and acceptance).

8 Tr. 204-05, 215 (Wallace); Tr. 542-43, 1066 (Hahus); PX 2

(offer and acceptance); DX 22 (termination notice).

9 R. 1168; Tr. 219 (Wallace); Tr. 1049-50 (Hahus); DX 15 (1993

time chart).

10 Tr. 626-29 (Hahus).

11 Tr. 1049 (Hahus); DX 17 (1994 time chart).

12 R. 1166; Tr. 1050 (Hahus); DX 17 (1994 time chart).

13 Tr. 39-41. The federal Clean Air Act mandated that

a nn 6 BO ETION, De eh oe) a

certain employers take affirmative steps to reduce air pollution.

Compressed time was a policy designed to ensure Methodist’s

time schedule to nurses in the MICU.!4 Under such pro-

gram, the nurses worked longer shifts, but fewer hours

per week, continued to receive full benefits and enjoyed

reduced commuting time.!> Wallace elected and was

awarded one of the six compressed positions, along with

other pregnant and nonpregnant nurses.!© In addition,

Hahus and Schmitz continued to give preference to Wal-

lace’s shift selections, allowing her to work only on week-

ends to avoid having to secure child care.!7

One of the MICU patients, Mr. B., suffered from

cardiac and renal failure, diabetes and aspirational pneu-

monia from November 1994 through his death in January

1995.18 Mr. B. had a Salem sump in place, a large bore

nasogastric tube threaded through Mr. B’s nose and into

his stomach. The purpose of the Salem sump was both to

decompress and aspirate Mr. B.’s stomach and deliver

medication and nutrition.!? On December 19, 1994, gas-

troenterologist Dr. Barroso ordered that Mr. B. “[s]tart TF

compliance with the federal Clean Air Act and reflected an

effort to reduce employee commuting time and thus, air

pollution. Tr. 626 (Hahus).

14 Tr. 39-41 (Clean Air Act); Tr. 247 (Wallace); Tr. 503 (Reggie

Wallace); Tr. 626-27, 631 (Hahus).

15 Tr. 39-41 (discussion of Clean Air Act); Tr. 247 (Wallace);

Tr. 503 (Reggie Wallace); Tr. 626-27, 631 (Hahus).

16 Tr. 228-29 (Wallace); Tr. 626-27, 631 (Hahus); Tr. 247

(Wallace); Tr. 503 (Reggie Wallace).

i7 Tr. 496-97 (Reggie Wallace); Tr. 1022 (Schmitz); Tr. 1057

(Hahus); DX 36 at p. 3.

18 Tr. 718, 788 (Dr. Lloyd); Tr. 849 (Dr. Barroso).

19 Tr. 721-22 (Dr. Lloyd); Tr. 849-50 (Dr. Barroso).

[tube feeding]... ”2° Later that day, attending physician

Dr. Lloyd noticed Mr. B.’s Salem sump had been removed

and replaced with a small bore feeding tube that could not

be used for necessary decompression or aspiration.! Dr.

Lloyd found an order “Place feeding tube & check with

a”

X-ray,” signed “Dr. Hanania” by “Veronica Wallace.”

When questioned by Dr. Lloyd, Dr. Hanania denied

giving any order to change Mr. B.’s nasogastric tube.?> Dr.

Lloyd confronted Wallace and expressed his concern that

she had practiced medicine without a license, endangered

the patient, and falsified a medical record.24 Not only

20 Tr. 226-27 (Dr. Lloyd); DX 1 (doctor’s order).

21 Tr. 722-24 (Dr. Lloyd); DX 1 (doctor’s order); Tr. 1082

(Hansen).

22 Tr. 722-24 (Dr. Lloyd); DX 1 (doctor’s order); Tr. 1082

(Hansen). Contrary to Wallace’s argument that she did not

“willfully falsify” a patient’s record, she attributed approval for

the procedure to a specific doctor whose name she wrote next to

the order and thereby confirmed her knowledge that a doctor’s

order was required for placement of the tube. In addition,

Wallace attributed the order to a physician other than Mr. B’s

physician. Not only was Wallace’s conduct willful, it was

deceitful.

23 Tr. 725, 746 (Dr. Lloyd); Tr. 807 (Dr. Hanania).

24 Tr. 747, 749-52 (Dr. Lloyd). In her Petition, Wallace states

she “was following the policy and procedure practiced in

Methodist MICU and she truthfully recorded the actions she

had taken in the patients records,” Petition p. 16. In fact, Wallace

committed two “Class I” violations under Policy P-001, did not

obtain the required doctor’s order for insertion or removal of a

nasogastric tube under Policy D-707 and falsely wrote in the

patient’s record that she had received the required order from

Dr. Hanania when she did not seek or receive that order. Tr. 807

(Dr. Hanania); Tr. 1068 (Hahus).

does Methodist have a written policy requiring a physi-

cian’s order for insertion or removal of a nasogastric

tube,2> Wallace admitted “I shouldn’t have placed the

feeding tube or written the verbal order without speaking

to the physician first.”26 All the other nurses agreed they

would never remove a Salem sump or insert a feeding

tube without first consulting a physician.?”

Dr. Lloyd complained of Wallace’s actions to super-

vising nurse Tory Schmitz (“Schmitz”), who investigated

immediately and recorded the results of her investiga-

tion, including Wallace’s admissions.?8 Hahus then inde-

pendently confirmed the facts gathered by Schmitz and

consulted with her supervisor and the nursing director

Paula Hansen, the medical director Dr. Davies, Dr. Hana-

nia and finally, chairman of the Peer Review Committee

Marcella Louis.?? Hahus also reviewed the Texas Nurse

Practices Act and Hansen consulted with Leslie Wagner

in Human Resources.*° Based on the investigation and

because Wallace admitted her conduct, it was undisputed

Wallace (1) wrote a false entry into the medical record

reflecting a doctor’s order had been given for a medical

25 DX 4 at Policy D-707.

26 Tr. 381, 448-51 (Wallace); Tr. 1018-21 (Schmitz); DX 8A

(notes) at p. 9; DX 30.

27 Tr. 603-04 (Goggins); Tr. 675-76, 687-79, 681-82 (Gaskin);

Tr. 602-03 (Hooper); Tr. 971-72, 975 (Coscio); R. 117 (Rousseau-

Mezile); Tr. 752 (Dr. Lloyd); Tr. 1017 (Schmitz).

28 Tr. 880, 1018-21 (Schmitz); DX 8A (notes); Tr. 1017-20

(Schmitz).

29 Tr. 1061-65 (Hahus); Tr. 1076-78 (Hansen).

30 Tr. 1063 (Hahus); Tr. 1078 (Hansen).

procedure and (2) without having obtained any such

order, proceeded to perform a medical procedure of a

type that requires doctor approval in advance.?! Both

actions are in violation of Methodist policies. On only one

other occasion had a nurse falsified a medical record and

that nurse was immediately discharged.*?

Paula Hansen and Leslie Wagner approved of termi-

nation based on Wallace’s December 19, 1994 conduct, not

knowing Wallace, her name or that she was pregnant at

the time of their decision.3? Likewise, Dr. Davies

and Marcella Louis approved of termination.*4

Hahus terminated Wallace on December 21, 1994.3° Ter-

mination was based on two separate “Class I” violations:

unprofessional conduct detrimental to patient care and

deliberate omission or falsification of employee/

employer records.%6 After conducting a grievance meet-

ing, the Methodist review committee subsequently

upheld the termination under Policies D-70797 and

31 Policy D-707 provides “A physician’s order is required

for insertion or removal of a nasogastric tube.”

32 Tr. 607-08 (Hahus).

33 Tr. 1064 (Hahus); Tr. 1076, 1079 (Hansen). Hansen and

Wagner both had the authority to overrule Hahus’s decision to

terminate Wallace. Tr. 1078-79 (Hansen).

34 Tr. 1062 (Hahus).

35 DX 22 (termination notice); Tr. 1066 (Hahus).

36 DX 22 (termination notice); DX 4 at Policy P-001 and

Appendix (G) and (H); Tr. 1068 (Hahus).

37 DX 4 at Policy D-707.

Joby oka boat iat

Pett a lh yt) meni

P-001°8 because Wallace admitted to falsifying the record

and was unable to present any justification when given

the opportunity to do so.9? After the termination, dieti-

cian Shawn Forney inquired as to which nurse had been

fired, but did not recognize the name of the nurse that

38 The Due Process Policy P-001 provides:

A Class I Violation is defined as a serious violation of

System standards under circumstances that, after a

thorough consideration of the facts, may justify

termination for a first violation without regard to the

employee’s length of service or prior record of

conduct. Recommended action to be taken is

termination for the first violation after review by

Employee Relations. See III. H. 2.

DX 4; Tr. 1068 (Hahus). Section III(H)(2) of Policy P-001 states:

Immediate termination. If termination is elected due

to the clarity of the issues involved and the severity of

the violation, the manager/supervisor must review

the facts with Employee Relations before terminating

the employee and no later than a workday following a

weekend termination to ensure that the action was

equitable and consistent with other similar cases.

DX 4. In its Appendix, Policy P-001 lists a number of Class I

Violations including:

G. Willful or illegal, unprofessional conduct or

unethical conduct detrimental to patient care or to

TMHS’s operations that result in neglect, abuse, or

exploitation of any patient.

H. Deliberate omission of information, falsification

of employee/employer records, or falsifying

information to management regarding their

availability for work, job duties, or performance.

DX 4.

39 Tr. 1081 (Hansen); DX 8A (notes); Tr. 1017-20 (Schmitz).

had been fired.4° Schmitz described Wallace as the one

who has been pregnant.?!

Wallace states in her Petition that “[t]he Nursing

Board of Examiners took no action against Ms. Wallace in

response to Ms. Hahus’ report of the incident and termi-

nation.”42 All evidence concerning the Nursing Board of

Examiners was inadmissible at trial as Wallace failed to

produce the letter she submitted to the Board in response

to its charges against her.43 Wallace makes other allega-

tions in her “statement of facts” that are not supported by

the record and which, in fact, either were not evidence at

trial or were excluded from consideration by the trial

court’s rulings on motions in limine.**

Of the thirty-two nurses working in MICU, it is

undisputed that ninety percent are female and three to

seven of the MICU nurses give birth each year.* It is also

unchallenged that these pregnant MICU nurses take

maternity leave and return to work without any adverse

career consequences.* One quarter of the three thousand

babies born at Methodist each year are born to Methodist_

40 Tr. 928-31.

41 Tr. 671 (Gaskin); Tr. 931-34 (Forney); Tr. 1005-07

(Schmitz). Gaskin testified she did not hear the conversation,

only the “she’s been pregnant” statement and thus, the

conversation is uncontroverted. Tr. 687 (Gaskin).

42 Petition p. 4.

@ Tr. 97.

44 See, e.g., Tr. 97-112, 246-47, 747, 749-52, 807, 1068.

45 R. 1157; Tr. 1000 (Schmidt); Tr. 1046-47 (Hahus).

46 R. 1157; Tr. 1023 (Schmidt).

employees.*” Six of the ten MICU nurses testifying at trial

were or had been pregnant while employed at Method-

ist.48 Two nurses, Wallace and Paula Hansen, were known

to be pregnant when they were hired by Methodist.49 At

the time of trial, there were two pregnant nurses in

MICU, including Amy Goggins who testified for Wal-

lace.°°

B. Proceedings Below

Wallace filed suit against Methodist in federal district

court on January 14, 1997.°! During the first trial, the jury

did not reach a verdict and a mistrial was declared.52 The

second trial resulted in a verdict in favor of Wallace.%

Following the jury’s verdict, Methodist moved for judg-

ment as a matter of law under Rule 50 of the Federal

Rules of Civil Procedure. After receiving considerable

briefing and argument and reviewing the entire trial tran-

script, the district court granted Methodist’s motion for

__* Tr. 1075 (Hansen). Of the pregnant nurses in MICU each

year, there is an additional number of pregnant MICU nurses

who give birth elsewhere or do not carry to term. Tr. 1046-47

(Hahus).

48 Tr. 205 (Wallace) (two births); Tr. 594 (Goggins) (two

births); Tr. 680-81 (Gaskin) (two births); R. 117 (Rousseau-

Mezile) (one birth); Tr. 999 (Schmitz) (two births); Tr. 1075

(Hansen) (two births).

49 Tr. 205 (Wallace); Tr. 1076 (Hansen).

50 Tr. 1023 (Schmitz).

51 R. 1-8; R. 1170.

52 R. 620.

53 R. 849.

10

judgment as a matter of law and, by final judgment dated

February 24, 2000, dismissed the case with prejudice.

Wallace v. The Methodist Hospital System, 85 F.Supp.2d 699

(S.D. Tex. 2000).54

On November 7, 2001, the United States Court of

Appeals for the Fifth Circuit affirmed the dismissal. Wal-

lace v. The Methodist Hospital System, 271 F.3d 212 (5th Cir.

2001).55 On December 13, 2001, Petitioner’s Petition for

Rehearing En Banc was denied.*®

¢

SUMMARY OF THE ARGUMENT

The petition for writ of certiorari should be denied

because the questions presented by the Petitioner do not

meet any of the usual and customary requirements for

granting a writ of certiorari. Wallace requests that this

Court review the court of appeals’ application of the

holdings in Reeves v. Sanderson Plumbing Products, Inc. to

the facts of her case.5? Such request is inappropriate

where Wallace admitted the behavior for which she was

terminated and did not contest the legitimate business

reasons for her discharge. The court of appeals was well

within its discretion in its application of Federal Rule of

Civil Procedure 50, with express deference to Reeves,

°4 Petition for writ of certiorari, Appendix C. The Appendix

attached to the petition is referred to as “App.”

55 App. A.

56 App. B.

57 530 U.S. 133 (2000).

11

basing its assessment on the abundance of uncon-

troverted and unimpeached evidence in the record.

Wallace seeks an advisory opinion on the “nearly

identical” analysis used by the lower courts to evaluate

work-rule violations. In addition, Wallace seeks an advi-

sory opinion on the Fifth Circuit Court’s application of

Reeves and its post-Reeves jurisprudence in evaluating

certain remarks in the workplace. Considering the clarity

of the factual issues, this case is not the appropriate

forum to evaluate further either method of judicial anal-

ysis.

ARGUMENT

I. The Facts of the Case Militate Against the Granting

of the Writ.

A. This Case Does Not Meet Any of the Usual and

Customary Criteria for Granting a Writ of Cer-

tiorari.

United States Supreme Court Rule 10 provides that

the granting of a petition for a writ of certiorari is a matter

of judicial discretion and will be exercised only for com-

pelling reasons. Compelling reasons under Rule 10

include: (1) a conflict between two United States courts of

appeals; (2) a conflict between two state courts of last

resort or between one such court and a United States

court of appeals; or (3) a state court or a United States

court of appeals has decided an important question of

federal law that has not been, “but should be, settled by

12

this Court.”°§ None of these reasons are present or

asserted in this case. When the asserted error consists of

purported erroneous factual findings or an alleged mis-

application of a properly stated rule of law, Rule 10

provides a petition for writ of certiorari is rarely granted.

Wallace does not identify any ruling from another

circuit court that conflicts with the Fifth Circuit Court’s

ruling, nor any conflict between two state courts of last

resort or between one such court and a court of appeals.

Wallace does not even contend that the case below

involves an important question of law that has not been,

but should be decided by this Court. Rather than -meeting———-——-

any of the usual and customary writ criteria, Wallace’s

application focuses on what she contends to be erroneous

factual findings and misapplication of properly stated

rules of law, neither of which are a favored reason for

granting a writ of certiorari.

Although throughout its opinion the Fifth Circuit

Court expressly relied on this Court’s ruling in Reeves,

Wallace accuses the court of appeals of ignoring Reeves on

eleven separate occasions in her Petition.°? The Fifth Cir-

cuit has not ignored Reeves, as is clear not only by its

express reliance on Reeves in five separate places in the

Wallace opinion,®° but also by its detailed analysis of

Reeves in Vadie v. Mississippi State University and Russell v.

58 See, e.g., Sup. Ct. R. 10.

59 Petition pp. 5, 6, 8, 9, 12, 16, 19, 21.

60 Wallace, 271 F.3d at 219-20, 222, 224.

13

McKinney Hospital Venture.©! The Fifth Circuit Court has

consistently rejected district court judgments that have

not comported with Reeves.®

Wallace does not present any new issue of great

importance. At best, the only matter at issue is whether

the lower court should have applied an interpretation of

the law preferred by Wallace, an issue that need not be

reviewed by this Court. Wallace attempts to paint her

litany of factual complaints as confirmation that the

lower courts were “ignoring the teachings of Reeves” and

acting in “direct contradiction of this Court’s instruction

in Reeves.” There is no such disparity between Reeves and

Wallace.

B. Wallace Seeks Review of Factual Findings After

Conceding Legitimate Business Reasons for Her

Termination and Admitting Violations of Hos-

pital Policy.

The facts in this case are largely uncontradicted and

unimpeached and as such, militate against the granting of

61 215 F.3d 365, 373, n.23 (5th Cir. 2000); 235 F.3d 213, 223

n.4 (5th Cir. 2000) (“[W]e simply comply with the Supreme

Court’s mandate in Reeves not to substitute our judgment for

that of the jury and not to unduly restrict a plaintiff's

circumstantial case of discrimination. We therefore underscore

that Reeves is the authoritative statement regarding the standard

for judgment as a matter of law in discrimination cases. Reeves

guides our decisions, and insofar as Rhodes [v. Guiberson Oil

Tools, 75 F.3d 989 (5th Cir. 1996)] is inconsistent with Reeves, we

follow Reeves.).

62 See, e.g., Blow v. City of San Antonio, Tex., 236 F.3d 293, 297

(5th Cir. 2001), reh’g en banc denied, 250 F.3d 745 (5th Cir. 2001);

Evans v. City of Bishop, 238 F.3d 586, 591 (5th Cir. 2000); Ratliff v.

City of Gainesville, Tex., 256 F.3d 355, 362 (Sth Cir. 2001).

14

the writ. The events leading to Wallace’s termination took

place in an intensive care unit of a hospital recognized for

world class medical care.®

On December 19, 1994, Wallace committed not one,

but two egregious acts, either sufficient to justify immedi-

ate termination under written policy.°* Methodist’s writ-

ten policies require strict enforcement when dealing with

the most critically ill patients in the hospital.®> Wallace

admits to performing both instances of conduct that

formed the basis of her termination, but asserts in her

Petition, “it does not matter whether [she] admitted [the

conduct],” instead explaining her conduct was not “will-

ful.”© Wallace also admits her conduct was wrong. In her

June 14, 1995 statement to the EEOC signed “under pen-

alty of perjury,” Wallace states “I shouldn’t have placed

the feeding tube or written the verbal order without

speaking to the physician first.”©? The consequence of

committing any act constituting a Class I Violation under

hospital Policy P-001 is termination.

It is undisputed that Wallace (1) made a medical

decision in violation of state law,®? (2) performed a

63 Tr. 192, 233 (Wallace); Tr. 1043 (Hahus).

64 DX 8A (notes); Tr. 1017-20 (Schmitz).

65 Tr. 760 (Dr. Lloyd).

66 Tr. 381, 448-51 (Wallace); Tr. 1018-21 (Schmitz); DX 8A

(notes) at p. 9 (Notes); DX 30 (EEOC charge); Petition p. 16.

67 DX 30 (EEOC charge); Tr. 456.

68 DX 4 at Policy P-001 and Appendix (G) and (H); Tr. 1068

(Hahus).

69 Tex. Occ. Cove § 301, et seq. The record confirms that the

applicable statute —- the Nurse Practices Act - is a law to guide

ee

15

technical and potentially dangerous medica! procedure

on a comatose patient, (3) where written policy requires a

prior doctor’s order, and (4) lied about her behavior by

making a faise entry into a medical record. There is no

clearer case for termination, and either ground - falsifica-

tion of a medical record or practicing medicine without a

license — is sufficient to support Methodist’s decision. The

decision to terminate was approved on review of the facts

by a number of hospital administrators who did not

know Wallace was pregnant”? and assessed again after

termination under Policy P-009 in a grievance meeting

attended by Wallace.”!

Based on the clarity of the issues and the severity of

the violations, Methodist properly terminated Wallace for

reasons that were both legitimate and in the protection of

its patients who were in the critical care unit. Failing to

terminate under these facts would render Methodist poli-

cies meaningless.

Wallace does not challenge either of Methodist’s legiti-

mate business reasons for her termination as false. Instead,

Wallace contends those reasons are a pretext for discrimi-

nation by claiming an inference of discrimination based on

alleged disparate treatment and stray remarks which both

the trial and appellate courts found did not relate to her

protected class, were not proximate in time, and were not

made by one with decision making authority.

the practice of registered nurses and provides that a nurse

cannot “diagnose, prescribe or dispense.” Tr. 1052-53 (Hahus);

Tex. Occ. Cove § 301.452.

70 Tr. 1061-65 (Hahus); Tr. 1076-78 (Hansen).

71 Tr. 290 (Wallace); Tr. 1076, 1079-80 (Hansen).

16

C. The Decision Below Is Consistent with Reeves.

This Court’s opinion in Reeves confirms that the fals-

ity of the employer’s explanation is critical to a “pretext”

analysis when the employer’s purported reasons are at

odds with the facts. Unlike the employee in Reeves, how-

ever, Wallace did not begin to make a “substantial show-

ing that the [employer’s] explanation was false,” for

Wallace admitted her wrongful conduct and does not

contest that such conduct is sufficient for termination

under Policy P-001.72 This is in_sharp contrast to the

employee in Reeves who created a fact issue on the

employer’s reason for termination (time keeping errors),

and the employer in Reeves who admitted inconsistencies

in the “legitimate business reason” concerning time

clocks malfunctioning.”3 Based on Wallace’s own admis-

sions and the wording of Policy P-001, Methodist’s legiti-

mate business reasons for termination were true, not

false. Wallace simply failed to meet her burden of proof

under Reeves to show both a prima facie case and “suffi-

cient evidence” that her employer’s legitimate business

reasons are false.”4

Wallace relied on no direct evidence of discrimina-

tion, but instead alluded to a lack of credibility of the

——_—__—__—defendant’s witnesses and presented alleged indirect evi-

dence of discrimination in the form of other instances of

conduct and remarks unrelated to her record falsification.

Wallace does not identify any other nurse who falsified a

72 Reeves, 530 U.S. at 144-45.

73 Reeves, 530 U.S. at 145.

74 Reeves, 530 U.S. at 148.

a a a ne a

17

record and was not terminated. Rather, the evidence

shows that the one other nurse who falsified a medical

record also was terminated.”5 The attached chart presents

uncontroverted evidence as to why each of Wallace’s

specific examples of treatment of other nurses was not

similar or equivalent to Wallace’s conduct in this case. See

attached chart. There is simply no evidence that a pri-

mary reason for termination —- Wallace’s falsification of

the medical record —- was untrue and thus, a pretext. This

_______reason alone is sufficient to support her termination

under Reeves as Wallace does not present “sufficient evi-

dence for a reasonable fact finder to reject the employer’

nondiscriminatory explanation for its decision.”7°

In Reeves, this Court instructs courts to give credence

to uncontradicted and unimpeached evidence regarding

the validity of an employer’s legitimate business reason,

“at least to the extent that the evidence comes from

disinterested witnesses,” like Dr. Lloyd.”” Further, Reeves

noted that even if the plaintiff can show a prima jacie case

and evidence tending to show pretext (which Wallace did

not), a jury’s finding of liability must be rejected when

“no rational factfinder could conclude that the action was

75 Tr. 607-08 (Hahus). See Urbano v. Continental Airlines, Inc.,

138 F.3d 204, 206 (5th Cir. 1998) (“Without a showing that [the

employer] adhered to the requirements of the [ ] policy only in

cases involving its pregnant workers, [plaintiff] cannot

maintain that she was a victim of discrimination under the PDA

[Pregnancy Discrimination Act].”).

_____76 Reeves, 530 U.S. at 146.

77 Reeves, 530 U.S. at 151 (citation omitted); Tr. 747, 749-52

(Dr. Lloyd).

18

”

discriminatory .. . ” such as when “the record con-

clusively revealed some other, non-discriminatory reason

for the employer’s decision.”7§

No rational factfinder could conclude that Wallace’s

termination was improper in the face of uncontradicted

and unimpeached evidence in this case. No nurse - preg-

nant or not - is allowed to (1) make a medical decision,

(2) act on that decision by performing a medical pro-

cedure without a doctor’s knowledge or consent, (3)

ignore policies that prohibit such behavior and (4) lie by

making false entries into a medical record.

II. It Is Well-Settled That Appellate Courts May Deter-

mine Legal Sufficiency of the Evidence Pursuant to

Rule 50 of the Federal Rules of Civil Procedure.

It is fundamental that courts may determine the legal

sufficiency of the evidence.”? Wallace contends the court

of appeals made improper weight and credibility deter-

minations prohibited by Reeves.8° Wallace neglects to

acknowledge, however, this Court’s observation in Reeves

that a court is not only permitted, but should render

judgment as a matter of law when a “party has been fully

heard on an issue and there is no legally sufficient evi-

dentiary basis for a reasonable jury to find for that party

78 Reeves, 530 U.S. at 148 citing Aka v. Washington Hospital

Center, 156 F.3d 1284, 1291-92 (D.C. Cir. 1998) (en banc); Fisher v.

Vassar College, 114 F.3d 1332, 1388 (2nd Cir. 1999) (en banc), cert.

denied, 522 U.S. 1075 (1998).

79 Fep. R. Cw. P. 50.

80 Petition p. 7, 12.

_ oc egeNRhEIRR a SES mee Wmesd ere

19

on that issue.”®! Indeed, in the words of Reeves, “[t]o hold

otherwise would be effectively to insulate an entire cate-

gory of employment discrimination cases from review

under Rule 50,” something this Court has consistently

declined to do.®?

Reeves does not eliminate a Rule 50 motion as Wallace

would have this Court believe, but rather reaffirms its

primacy.

III. The Fifth Circuit Court Did Not Improperly Com-

ment on the Weight of the Evidence.

Wallace’s arguments about the “weight” of the evi-

dence are inapplicable when evidence is undisputed. It is

undisputed that Wallace engaged in the acts for which

Methodist terminated her. Wallace admitted “I shouldn’t

have placed the feeding tube or written the verbal order

without speaking to the physician first.”8° Policy P-001

expressly classifies either of these acts as “Class I Viola-

tions” rendering the employee subject to immediate ter-

mination. Such evidence supports Methodist, is

uncontradicted and unimpeached.®4 The jury was

81 530 U.S. 133, 149 (2000); Fep. R. Civ. P. 50(a); see also

Weisgram v. Marley Co., 528 U.S. 440, 447-48 (2000).

82 530 U.S. at 148, citing St. Mary’s Honor Center v. Hicks, 509

U.S. 502, 506 (1993).

83 Tr. 381, 448-51 (Wallace); Tr. 1018-21 (Schmitz); DX 8A

(notes) at p. 9; DX 30.

84 Reeves, 530 U.S. at 151.

20

required to believe such uncontradicted evidence, as was

the Fifth Circuit Court.85

While Wallace acknowledged she should not have

removed the Salem Sump and replaced it with a feeding

tube, she claims her conduct was minimized by the

ambiguous testimony of Cheryl Gray.86 Unlike Cheryl

Gray, Wallace never spoke to a physician and admitted

she should not have written the verbal order in the medi-

cal record without speaking to the physician first. No

other nurse falsified a medical record without being ter-

minated and Methodist terminated the only other nurse

who made a false entry into a medical records.87

Thus, the critical elements of the case favoring Meth-

odist are undisputed and uncontradicted. The Fifth Cir-

cuit Court had no need to weigh the evidence and could

not have improperly commented on the weight of undis-

puted evidence, as Wallace claims. Wallace produced no

evidence to deny her conduct, dispute Methodist policies

or contest her termination under those policies. Nor did

she present any instance of another nurse who falsified a

record and was not discharged. The lower courts did not

assess the “credibility” of evidence; rather, the courts

acknowledged the absence of evidence supporting Wal-

lace’s claims.

85 Id.

86 Cheryl Gray testified when she was confronted by a

doctor about her placement of the tube, she “told him that the

doctor... had given me the order and [that is] why the tube was

placed.” Tr. 524-25 (Gray).

87 Tr. 607-08 (Hahus).

21

IV. Wallace Seeks an Advisory Opinion from this

Court on Established Fifth Circuit Jurisprudence.

In her first and third questions presented, Wallace

seeks an advisory opinion from this Court on the issues

of “nearly identical” conduct and the “stray remarks”

analysis. Neither request is an appropriate basis for

granting a writ of certiorari in this case.

A. The Proper Analysis for Alleged “Work-Rule

Violations” Is “Nearly Identical” Conduct That

Did Not Result in Termination.

In her third question presented, Wallace sets up a

straw-man argument that the lower courts required Wal-

lace to “present identical, comparative evidence in order

to rebut the defendant’s justification for the adverse

action.”88 Wallace then contends that such requirement is

contrary to this Court’s holding in Reeves.89 Neither Wal-

lace nor Reeves uses the standard “identical” or “compara-

tive” and, contrary to Wallace’s assertion, the court of

appeals did not impose any heightened evidentiary

requirement on Wallace. The court of appeals simply

applied its long-standing “nearly identical” analysis to

the litany of dissimilar instances of conduct presented by

Wallace in her attempt to show pretext. Likewise, the

88 Petition p. il.

89 Petition pp. 15-16. Wallace apparently derives this

fictional “requirement” from the Fifth Circuit’s description of

Cheryl Gray's insertion of a nasogastric tube as “almost the

exact procedure.” Wallace attempts to elevate such factual

description to a legal standard followed in the Fifth Circuit.

22

phrase “nearly identical” is expressly mentioned in the

Reeves decision in the context of comparing employee

conduct.” Therefore, Wallace’s argument is without merit

and does not warrant granting the writ on this issue.

Nevertheless, Wallace contends the court of appeals

improperly applied its own legal precedent and required

her to present evidence of “identical acts,” rather than

merely “similar acts,” performed by other, non-pregnant

nurses who were not discharged. The court of appeals,

however, properly obligated Wallace to show instances of

other conduct that were “nearly identical” in order to

demonstrate disparate treatment as evidence of inten-

tional discrimination.?! Wallace’s recitation of the other

instances of conduct on pages 13 through 15 of her Peti-

tion is misleading and incorrectly characterizes actual

witness testimony. See attached chart. For example, Wal-

lace’s claim that Hahus “was aware that nurses wrote

verbal orders and implemented procedures such as

x-rays, flushes, restraints, and altering dosages of medi-

cations, all of which require a doctor’s order” is wrong

because by written policy, none of these procedures

require a doctor’s order.9? See attached chart. Finally,

90 Reeves, 530 U.S. at 151.

91 Wallace 271 F.3d 212 (5th Cir. 2001), citing Smith v. Wal-

Mart Stores (No. 471), 891 F.2d 1177, 1180 (5th Cir. 1990) (per

curiam); see also Mayberry v. Vought Aircraft Co., 55 F.3d 1086,

1090 (5th Cir. 1995) and Little v. Republic Refining Co., 924 F.2d

93, 97 (5th Cir. 1991).

92 Tr. 648-49 (x-rays) and Policy D-711; Tr. 647-48 (flushes)

and Policy D-1406 (Insertion, Management, and Removal of

Central Venous Catheters); Tr. 430-33, 645 (restraints) and Policy

D-505 (Use of Restraints); Tr. 427-28, 642-44 (altering dosages)

23

while Wallace asserts (without reference to the record)

that “Hahus allowed and encouraged her nurses to break

this rule [to obtain a doctor’s order for procedures that

require an order] on a routine basis,” there is no evidenti-

ary basis whatsoever for this illogical statement.

It is well-settled in the Fifth Circuit that to defeat

judgment as a matter of law in an employment discrimi-

nation case where a “work-rule violation” is at issue, a

plaintiff must show “the misconduct for which she was

discharged was nearly identical to that engaged in by a

[non-pregnant] employee whom [the company]

retained.”93 Notably, Wallace avoids any discussion of

decisions from any court of appeals or other circuits or

state courts of last resort on this issue in support of her

argument before this Court. Wallace's third question pre-

sented implies the analysis of “identical comparative evi-

dence” is somehow precluded by Reeves, but because that

issue is not discussed in the Reeves opinion, Wallace is

requesting this Court to evaluate what she contends is the

Fifth Circuit Court’s misapplication of a properly stated

rule of law.

The Fifth Circuit Court consistently compares the

work-rule violation at issue with nearly identical viola-

tions to determine whether a similarly situated employee,

outside the plaintiff’s protected class, was treated

and Policy D-201 (Steps Common to the Administration of

Medication). All policies are contained in DX 4.

93 Smith, 891 F.2d at 1180 (citation omitted).

24

differently.°* There is no contrary precedent established

by the law of this Court. In the Fifth Circuit, courts

require that any comparative evidence be nearly identical

to the plaintiff’s individual circumstance before other

instances of conduct can be regarded as proper evidence

of discrimination or pretext.?° Wallace’s contention that

the lower courts erred by insisting on instances of “iden-

tical acts” is without merit. Instead, the lower courts

correctly found Wallace’s unrelated and distinguishable

instances of conduct were not evidence of pretext or

discrimination. See attached chart.

B. The Court of Appeals Properly Assessed

Remarks Presented by Wallace as Stray under

the Express Parameters of Reeves.

Wallace claims in her first question presented that

use of the stray remarks analysis followed by the Fifth

Circuit Court is prohibited by the Reeves decision and has

94 Okoye v. The University of Texas Houston Health Science

Center, 245 F.3d 507, 514 (5th Cir. 2001) (plaintiff physician’s

situation was not nearly identical to that of other physicians

with performance issues that were not terminated because

unlike the others, plaintiff allegedly assaulted a co-worker);

Mayberry v. Vought Aircraft Co., 55 F.3d 1086, 1090 (5th Cir. 1995)

(African-American machine operator suspended for work-rule

violation did not offer evidence sufficient to support a finding

that white employees in “nearly identical” circumstances were

treated differently); Smith, 891 F.2d at 1180 (female employee’s

conduct involving a breach of the non-fraternization policy was

not nearly identical to that of a male employee who was treated

differently), citing Davin v. Delta Air Lines, Inc., 678 F.2d 567, 570

(Sth Cir. Unit B 1982).

95 See n.94, supra.

LE FOE OE AE RS A

25

no place after a jury verdict. Contrary to Wallace’s asser-

tion that the application of the stray remarks analysis is

somehow prohibited by Reeves, a remarks analysis is

actually contained in the Reeves opinion.”

Following Reeves, the Fifth Circuit heeded this

Court’s admonition and viewed its pre-Reeves jurispru-

dence cautiously.” The Fifth Circuit Court's decision in

this case is consistent with Reeves and post-Keeves juris-

prudence.

Prior to the Reeves decision, the Fifth Circuit Court

warned “the ‘stray remark’ jurisprudence is itself incon-

sistent with the deference appellate courts traditionally

allow juries regarding their view of the evidence pre-

sented and so should be narrowly cabined.”’® After

Reeves, the Fifth Circuit Court analyzed the stray remarks

analysis in Wallace, Rubinstein, Russell and Auguster.%? In

each instance, the Fifth Circuit Court adhered to this

Court’s Reeves analysis which, like the Wallace decision,

requires that remarks be “in addition to” other evidence

of pretext.10 In Reeves, this Court expressly treats

remarks as “additional evidence” when it states “Tijn this

96 Reeves, 530 U.S. at 151-53.

97 Russell, 235 F.3d at 229.

98 Vance v. Union Planters Corp., 209 F.3d 438, 442 n.4 (5th

Cir. 2000) cited in Russell, 235 F.3d at 229.

99 Wallace, 271 F.3d at 222; Auguster v. Vermilion Parish

School Board, 249 F.3d 400, 404 (5th Cir. 2001); Russell, 235 F.3d at

225-26; Rubinstein v. Administrators of Tulane Educ. Fund, 218 F.3d

392, 400-01 (5th Cir. 2000), reh’g en banc denied, 232 F.3d 212, cert.

denied, 532 U.S. 937 (2001).

100 Reeves, 530 U.S. at 151.

26

case, in addition to establishing a prima facie case of

discrimination and creating a jury issue as to the falsity of

the employer’s explanation, petitioner introduced addi-

tional evidence that [the decision maker] was motivated by

[discriminatory] animus and was principally responsible

for petitioner’s firing. Petitioner testified that [the deci-

sion maker] told him . . . [various age-related com-

ments].”1°1 By analogy, this Court observed in Price

Waterhouse v. Hopkins that “remarks at work that are

based on sex stereotypes do not inevitable prove that

gender played a part in a particular employment deci-

sion... . In any event, the stereotyping in this case did

not simply consist of stray remarks.”10? In other words,

consideration of remarks occurs only after the plaintiff

has demonstrated a prima facie case and some evidence of

pretext. Without such demonstration, purported remarks,

by themselves, cannot demonstrate discrimination.

Consistent with Reeves, the court of appeals observed

“in light of Wallace’s failure to rebut each of the reasons

Methodist proffered, the comments must satisfy the test

we laid out in [Brown v. CSC Logic, Inc., 82 F.3d 651 (5th

Cir. 1996)].”193 Wallace does not create an inference of

discrimination based on remarks because all the com-

ments she identifies are either not related to pregnancy,

or were made by co-workers, or were made long before

the December 21, 1998 termination. There is no reason to

evaluate the Fifth Circuit Court’s application of a legal

analysis that is consistent with Reeves because both the

101 Reeves, 530 U.S. at 151 (emphasis added).

102 490 U.S. 228, 251 (1989) (emphasis in original).

103 App. A, p. 13.

eee ee

27

court of appeals and this Court acknowledge remarks

meeting certain criteria may be used to bolster an

employee’s evidence of pretext.

In sum, in assessing Wallace’s remarks as stray, the

lower courts were well within their authority under Fed-

eral Rule of Civil Procedure 50, did not make credibility

determinations or invade the province of the jury and

were within the express parameters of Reeves. The lower

courts properly refused to permit remarks that do not

meet certain criteria, as outlined in Reeves, such as

remarks being made by the decision maker and related to

the protected class, to constitute sole evidence of pre-

text.

104 Reeves, 530 U.S. 151-52.

28

CONCLUSION

The petition for writ of certiorari should be denied

because (1) the facts of this case militate against the

granting of the writ; and (2) Petitioner does not meet any

of the usual and customary criteria for a writ of certiorari.

Respectfully submitted,

JULIANN H. PANacos

Counsel of Record

M. Lucitte ANDERSON

McGuINCHEY STAFFORD, PLLC

1001 McKinney, Suite 1500

Houston, Texas 77002

(713) 520-1900

(713) 520-1025 (Fax)

MicuHaet H. Rusin

McGLINCHEY STAFFORD, PLLC

9th Floor, One American Place

Baton Rouge, Louisiana 70825

a (225) 383-9000

(225) 343-3076 (Fax)

Attorneys for Respondent

The Methodist Hospital System

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