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Hospital Dodges Discrimination Claim Despite “Unfair” Termination

Peggy Gordon worked for Holy Cross Hospital Germantown, Inc. from April 2012 until February 2017.  Gordon had a spotless employment record until an incident on February 22, 2017.  That evening, when Gordon went to draw blood from a patient, the patient refused to let her do so and asked for another nurse.  Gordon stopped the procedure, apologized to the patient, and left the room.  She also reported to the charge nurse that the patient was upset and asked that the charge nurse go talk to her.

Moments later, a family member of the patient berated Gordon for leaving the patient’s room when the patient was in apparent distress.  Neither the charge nurse nor a police officer who was standing nearby intervened.  The situation escalated until the family member closed his fist and yelled, “I will bang your head in.”  Another employee then stepped in to defuse the situation.  Gordon asked the officer why he would not assist her, and he said it was because the family member was in a military uniform.

Following the incident, Gordon (who is African American) accused the officer of treating her differently than he treated white employees by not intervening.  Then, rather than reporting the incident to her supervisor, Gordon called a local news station from the nurse’s station, in close proximity to the patient and others who could hear the call.  The hospital terminated Gordon’s employment for knowingly violating Holy Cross’ Confidentiality Policy and Code of Conduct.  A lawsuit followed in which Gordon claimed that her termination violated Title VII, Section 1981, and the Maryland Fair Employment Practices Act.  Gordon v. Holy Cross Hosp. Germantown, Inc., Civil Action No. TDC-18-1306 (D. Md. May 29, 2019).

Holy Cross argued at summary judgment that Gordon did not show that she was performing at a level that met its legitimate expectations at the time that she was fired because, in the Hospital’s view, Gordon’s act of calling the local news station about a patient issue — in earshot of others — instead of following chain of command meant that she was not meeting the hospital’s performance expectations.

Rejecting this argument, the court said that “a single instance of misconduct is more relevant to the question of the employer’s legitimate nondiscriminatory reason for termination” rather than whether the employee was performing at a satisfactory level.  As the court stated, “Where Gordon’s alleged misconduct on the night of February 22, 2017 was a single act external to her core job requirements, any policy violation stemming from that incident is more fairly analyzed as part of the inquiry into Holy Cross’s legitimate non-discriminatory reason for terminating Gordon rather than as necessarily establishing that she was not performing her job in a satisfactory fashion.”

The court concluded, however, that Gordon could not make out a prima facie case of discrimination because there was no evidence of discriminatory intent.  Holy Cross also provided a legitimate, non-discriminatory explanation for the termination:  Gordon “engaged in reckless misconduct by contacting the media regarding a difficult interaction with a patient’s family member rather than raising her concerns through her chain of command.”  The Hospital’s explanation that Gordon was discharged for violating the Hospital’s confidentiality policy did not pass muster, because it was undisputed that Gordon did not divulge any patient information.  Thus, the court looked to the other policy cited in the termination documents — violation of the standards of conduct — which was a legitimate explanation.

While granting summary judgment for the Hospital, the court also noted that it “does not conclude that Holy Cross’s decision to terminate Gordon was fair” given how she was treated by the patient’s family member, other Hospital employees, and the police officer.  Holy Cross prevailed because the court is not a “super-personnel department weighing the prudence of employment decisions made by firms charged with employment discrimination.”

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