Loren D. King, II v. Fawcett Memorial

• Court: Court of Appeals for the Eleventh Circuit
• Decided: September 24, 2020
• Docket: 20-10223
• Status: Unpublished

Opinion

Case: 20-10223 Date Filed: 09/24/2020 Page: 1 of 8

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 20-10223 Non-Argument Calendar ________________________

D.C. Docket No. 2:17-cv-00583-PAM-NPM

LOREN D. KING, II,

Plaintiff-Appellant,

versus

HCA, et al.,

Defendants,

FAWCETT MEMORIAL,

Defendant-Appellee.

________________________

Appeal from the United States District Court for the Middle District of Florida ________________________

(September 24, 2020)

1 Case: 20-10223 Date Filed: 09/24/2020 Page: 2 of 8

Before JORDAN, ROSENBAUM, and NEWSOM, Circuit Judges.

PER CURIAM:

Loren King sued his former employer, Fawcett Memorial Hospital, Inc. (the

“Hospital”), alleging that it unlawfully terminated his employment as a nurse based

on his age, sex, and disability. The district court granted summary judgment to the

Hospital, and King appeals. After careful review, we affirm.

I.

The relevant facts are largely undisputed. The Hospital hired King, who has

been diagnosed with major depression with attention-deficit disorder (“ADD”), as

an ICU nurse in January 2014, when he was fifty-four years old. At the time he was

hired, King signed an acknowledgement of the Hospital’s Code of Conduct, which

included its zero-tolerance policy for illegal-substance use. Hospital policy

prohibited employees from being at work with any measurable quantity of an illegal

drug or non-prescribed controlled substance in their blood or urine. The Hospital

required employee drug testing based upon reasonable suspicion, including if an

employee was suspected of diverting drugs that were intended for a patient.

On October 6, 2015, a routine Hospital audit reflected that King may have

removed two units of propofol, an opiate, from the Hospital’s automated medication-

dispensing system on October 3, 2015, without “scanning” them to show what had

happened with the drugs. Kelli Steiner-Dawson, King’s nurse manager, discovered

2 Case: 20-10223 Date Filed: 09/24/2020 Page: 3 of 8

this incident on the audit and was concerned that two units of the drug were removed

within an hour of each other and that there was no record of whether the drugs were

administered to a patient or wasted. Steiner-Dawson, who testified that King had a

pattern of “dispensing more drugs than other nurses,” raised the issue with higher-

level management at the Hospital. Eventually, the Hospital’s Ad-Hoc Committee

determined that reasonable suspicion of drug diversion existed and so required King

to take a drug test when he reported to work on October 7, 2015.

King initially refused because he self-medicated with marijuana. He then

changed his mind and took the test, telling Hospital administrators that the test would

be positive for marijuana. It was. Because King did not have a prescription for

medicinal marijuana, he failed the drug test and violated the Hospital’s zero-

tolerance policy.1 As a result, the Hospital’s Chief Nursing Officer decided to

terminate King’s employment. Steiner-Dawson then informed King of the decision.

After the failed drug test but before he was terminated, another nurse at the

Hospital told King that he could keep his job and nursing license by joining the

Intervention Project for Nurses (“IPN”). IPN works with the State of Florida to

provide education, support, and monitoring to nurses with substance-use disorders,

among other things. King joined IPN, attempting to keep his job and his nursing

1 Even if King had a prescription for medicinal marijuana, it appears that he still would have violated the Hospital’s zero-tolerance policy, which prohibited marijuana “even when taken as prescribed by a physician.” 3 Case: 20-10223 Date Filed: 09/24/2020 Page: 4 of 8

license. IPN offered him a “five-year co-occurring substance use disorder and

mental health, abstinence-based monitoring advocacy contract,” with a “12-month

controlled substance access restriction based on having a history of suspected

diversion from an employer.” King declined to participate in the program.

Following his termination, King sued the Hospital, alleging that he had been

discriminated against based on his age, sex, and disability (ADD). His allegations

largely centered on Steiner-Dawson, his nurse manager. He claimed that Steiner-

Dawson disliked him for, among other things, his “charting” errors, which King

attributed to being undermedicated for ADD, but did nothing to accommodate his

disability or to improve his charting and instead tried to get him fired. In August

2015, she allegedly tried to have him fired for workplace violence against another

nurse, but King was not disciplined. Several weeks later, according to King, Steiner-

Dawson contrived to have him urine tested, which resulted in his termination. King

alleged the Hospital could have pursued less severe punishment, but it chose to

terminate him, destroying his career and physical and mental welfare in the process,

so it could hire younger nurses at lower wages.

The district court granted summary judgment to the Hospital, concluding that

King had failed to exhaust his administrative remedies with regard to certain claims

and that his claims otherwise failed on the merits. King now appeals.

4 Case: 20-10223 Date Filed: 09/24/2020 Page: 5 of 8

II.

“We review de novo a district court’s grant of summary judgment, viewing all

the evidence, and drawing all reasonable inferences, in favor of the non-moving

party.” Vessels v. Atl. Indep. Sch. Sys., 408 F.3d 763, 767 (11th Cir. 2005).

Summary judgment is appropriate when the record 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). In other words, summary judgment is

appropriate “unless there is sufficient evidence favoring the nonmoving party for a

jury to return a verdict for that party.” Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 249 (1986).

Both federal law and Florida state law prohibit employers from discriminating

against their employees on the basis of age, sex, and disability. 2 See Age

Discrimination and Employment Act of 1967 (“ADEA”), 29 U.S.C. § 623(a); Title

VII, 42 U.S.C. § 2000e-2(a); Americans with Disabilities Act of 1990 (“ADA”), 42

U.S.C. § 12112(a); and Florida Civil Rights Act (“FCRA”), Fla. Stat. § 760.10(1)(a).

For age and disability discrimination, the plaintiff must prove that his age or

2 FCRA claims are analyzed under the same framework as claims brought under Title VII, the ADA, and the ADEA. See Mazzeo v. Color Resolutions, Int’l, Inc., 746 F.3d 1264, 1266 (11th Cir. 2014) (“Disability and age-related discrimination actions under the FCRA are analyzed under the same frameworks as the ADA and ADEA, respectively.”); Jones v. United Space Alliance, L.L.C., 494 F.3d 1306, 1310 (11th Cir. 2007) (“Because the FCRA is modeled on Title VII, Florida courts apply Title VII caselaw when they interpret the FCRA”). Accordingly, we won’t separately discuss the FCRA in our analysis. 5 Case: 20-10223 Date Filed: 09/24/2020 Page: 6 of 8

disability was a “but-for” cause of the adverse employment action—meaning it had

a “determinative influence on the outcome” of the employer’s decision. Gross v.

FBL Fin. Servs., Inc., 557 U.S. 167, 176 (2009) (ADEA); McNely v. Ocala Star-

Banner Corp., 99 F.3d 1068, 1077 (11th Cir. 1996) (“The ADA imposes a ‘but-for’

liability standard.”). The standard for sex discrimination is more permissive. The

plaintiff must prove that his sex was at least a “motivating factor” in the employer’s

decision, even though other factors also may have motivated the decision. See 42

U.S.C. § 2000e-2(m). To meet these burdens, the plaintiff generally must introduce

some evidence indicating that the employer’s stated, non-discriminatory reason for

its action is not credible and that the decision was actually motivated by unlawful

discrimination. Alvarez v. Royal Atlantic Developers, Inc., 610 F.3d 1253, 1265

(11th Cir. 2010).

But “it is not our role to second-guess the wisdom of an employer’s business

decisions—indeed the wisdom of them is irrelevant—as long as those decisions were

not made with a discriminatory motive.” Id. at 1266. “The employer may fire an

employee for a good reason, a bad reason, a reason based on erroneous facts, or for

no reason at all, as long as its action is not for a discriminatory reason.” Nix v. WLCY

Radio/Rahall Commc’ns, 738 F.2d 1181, 1187 (11th Cir. 1984), abrogated on other

grounds by Lewis v. City of Union City, Ga., 918 F.3d 1213 (11th Cir. 2019) (en

6 Case: 20-10223 Date Filed: 09/24/2020 Page: 7 of 8

banc). The fact that an employee may have been treated unfairly is not enough

unless the circumstances permit a reasonable inference of discrimination.

King devotes most of his brief to arguing that he was treated unfairly and that

his nurse manager, Steiner-Dawson, had a vendetta against him. Even if we accept

these assertions as true, however, that does not mean he is entitled to a jury trial,

because the inquiry is not the whether the employer’s decision was “prudent or fair,”

but rather “whether unlawful discriminatory animus motivate[d] the decision.”

Alvarez, 610 F.3d at 1266.

Here, no reasonable jury could conclude that King’s age, sex, or disability

motivated the decision to terminate his employment. The Hospital presented

evidence that King was fired as an ICU nurse because he failed a drug test by testing

positive for a non-prescribed controlled substance—marijuana—and therefore

violated the Hospital’s zero-tolerance policy, which prohibited being at work with

any measurable quantity of an illegal drug or non-prescribed controlled substance in

blood or urine.

King does not dispute that he failed the drug test or that he violated the zero-

tolerance policy, which authorized termination for a failed test. Although he

questions the validity of the decision to drug test him, he does not identify a situation

where a person outside of his protected classes committed a similar scanning error

but was not drug tested for possible drug diversion. Nor does he identify any other

7 Case: 20-10223 Date Filed: 09/24/2020 Page: 8 of 8

nurse who violated the zero-tolerance policy but was not terminated. The one person

he identified failed a drug test before working at the Hospital and was only hired by

the Hospital after she complied with IPN. King, however, failed a drug test while

working at the Hospital and then did not comply with IPN, so their situations are not

comparable. And there is no other evidence from which a jury could reasonably

infer that the Hospital’s legitimate, non-discriminatory reason for terminating his

employment—that he violated the zero-tolerance drug policy—was not the true

reason for its decision to terminate his employment.

For these reasons, we affirm the district court’s grant of summary judgment

in favor of the Hospital on King’s claims of discrimination.3

AFFIRMED.

3 Because we conclude that King’s claims fail on the merits, we do not consider whether he adequately exhausted his administrative remedies. See Fort Bend Cty., Tex. v. Davis, 139 S. Ct. 1843, 1850–52 (2019) (holding that Title VII’s exhaustion requirements are not jurisdictional). 8