Karpel v. INOVA Health System

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
ELIZABETH A. KARPEL,
Plaintiff-Appellant,
v.
No. 97-1279
INOVA HEALTH SYSTEM SERVICES, t/a
INOVA Health System, t/a
Cameron Glen Care Center,
Defendant-Appellee.
Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Richard L. Williams, Senior District Judge.
(CA-96-347)
Argued: December 3, 1997
Decided: January 27, 1998
Before MURNAGHAN, ERVIN, and LUTTIG, Circuit Judges.
_________________________________________________________________
Affirmed by published opinion. Judge Ervin wrote the opinion, in
which Judge Murnaghan and Judge Luttig joined.
_________________________________________________________________
COUNSEL
ARGUED: Cheryl Kornblatt Brunner, Manassas, Virginia, for Appel-
lant. Stephen William Robinson, MCGUIRE, WOODS, BATTLE &
BOOTHE, L.L.P., McLean, Virginia, for Appellee.
_________________________________________________________________
OPINION
ERVIN, Circuit Judge:
Elizabeth Karpel, an African-American nurse, sued her former
employer, Inova Health System Services, on claims of racial discrimi-
nation and retaliation. The district court granted summary judgment
for Inova on all counts. Finding no error, we affirm.
I.
In January 1992, Ms. Karpel was hired as a Licensed Practical
Nurse (LPN) by Cameron Glen Care Center, an affiliate of Inova.
Karpel had 18 years of experience as an LPN.
The incident that Karpel believes precipitated her employment
problems took place in February 1993. In the "Gonzalez incident,"
Karpel filled out a Quality Care Control Report indicating that a white
LPN failed to resuscitate Garcia Gonzalez, a patient at the facility,
even though there was no Do Not Resuscitate order. An Advanced
Directive was found later, indicating that Gonzalez did not want
resuscitation, and the hospital only gave the white LPN verbal coun-
seling regarding the breach of hospital policy. Karpel claims that the
white nursing staff reacted negatively to a black nurse criticizing a
white nurse, and began a "campaign of harassment" directed against
her.
In March of 1993, Karpel received a verbal warning for pre-
pouring medication, although she denied pre-pouring it. Later that
month, she had an unsatisfactory "medpass" (observation by a nursing
supervisor of a nurse passing medications to residents) with a 22%
error rate. In April she received a written warning (later reduced to
verbal) as a result of her unsatisfactory medpass and for miswriting
a DNR order. In May 1993 Karpel filed a charge of discrimination
with the EEOC.
On July 8, 1993, Karpel received a written warning for eating in
the lounge. On July 12 a memo was issued to clarify the eating policy.
It stated that, effective July 14, there would be no eating allowed on
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the unit. On July 13, however, the day before the clarified policy was
to take effect, Karpel received another written warning for eating in
the lounge on that day.
On July 23, 1993, the "Kaopectate incident" took place. In viola-
tion of general nursing practice, Karpel charted the medication prior
to administering it. She also violated nursing practice by destroying
that page on the patient's chart and by failing to report her errors
properly. Karpel claims that she destroyed the notes and rewrote them
because they were too messy to read, and alleges that white nurses
have destroyed nursing notes without being disciplined for this viola-
tion of policy.
As a result of the Kaopectate incident, Karpel was placed on
administrative leave on July 23 and the incident reported to the Vir-
ginia Department of Health Professionals. Karpel was given a written
warning about the incident on August 16, but it was eventually
removed from her file as part of the grievance procedure. In addition,
in January the Acting Administrator of Cameron Glen informed the
Department of Health Professionals that the incident should never
have been reported.
In August 1993, Karpel was transferred from the Shepard's Way
unit to the Williamsburg unit. There was no reduction in wages or
benefits, but the transfer adversely affected Karpel's shift schedule
and forced her to work in a smoking environment, aggravating her
hypertension. Inova claimed that the transfer was made so that Karpel
could receive closer supervision and so there would be other LPNs
available to relieve her for meals. Karpel had complained from the
beginning of her employment that white nurses were relieved for
meals and breaks, while she was not. According to Regina Freestone,
the Director of Nursing, Karpel could not be relieved while on Shep-
herd's Way because she was the only LPN on duty there; multiple
LPNs worked in the Williamsburg unit.
Karpel requested in writing that she be transferred back to Shep-
herd's Way. Although the letter did not mention her problem with
smoke, the administration heard of her difficulties with the smoke
through Human Resources. Karpel was told there were no openings
on the Shepherd's Way unit immediately available. Karpel argued
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that because a smoker was transferred from Williamsburg to Shep-
herd's Way in order to move her onto that unit, the switch could
merely have been undone. According to Inova administrators, this
was not considered.
On January 5, 1994, Karpel discussed with Freestone the possibil-
ity of a transfer to another unit because of her concerns about the
smoke on the Williamsburg unit. According to Freestone, Karpel
refused the suggested transfer, and no other openings for LPN became
available on any other unit before Karpel's termination.
On January 12, 1994, Karpel received a verbal warning for contin-
ued medpass errors, and on January 19 had a medpass with a 17%
error rate. Also in January, she was counseled about her repeated tar-
diness. On February 14, Karpel received an unsatisfactory evaluation.
Her tardiness, eating in the lounge, poor medication passes, and fail-
ure to complete monthly summaries were all identified as areas in
which she needed to show improvement. Her written comments to the
evaluation indicate that she believed it to be a result of racial discrimi-
nation and retaliation, and that she was one of the best nurses at Cam-
eron Glen.
On February 15, Karpel was given a day of decision-making leave;
she indicated on her return that she would continue her employment
at Cameron Glen. Later in February, Karpel was told she needed to
take leadership classes. She indicated to her supervisors that they
needed to inform her attorneys why she should attend the classes and
that she did not plan to attend them -- although she did later agree
to attend on the advice of her attorneys. The earliest date she would
have been able to attend the classes was in April. On February 28,
Karpel sent a letter to Freestone, indicating that further correspon-
dence from Inova should be sent to her attorneys. In her deposition,
Karpel explained that she did not intend this to apply to job-related
communications.
On March 14, Karpel was terminated by Inova. The reasons given
for her termination were her refusal to participate in her employee
development plan, refusal to discuss her employment development
with her supervisor, failure to complete monthly summaries, and
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excessive tardiness. Karpel was the only nurse who failed to complete
any monthly summaries.
To support her claim of racial harassment, Karpel points to a num-
ber of incidents in which she alleges Inova responded differently
according to the race of the nurse involved. She first points to the
Gonzalez incident, described above, in which the white LPN alleg-
edly at fault was given only verbal counseling. She also directs us to
the "Chapman incident," in which a white male nurse abused a young,
black, quadriplegic patient by roughing him up and taking his temper-
ature rectally against his wishes. Karpel alleges that Inova refused to
take any action until 45 days later, when it received corroborating tes-
timony from two staff members. The male nurse was then reported to
the state board and terminated by Inova. Finally, she points to the
Kaopectate incident, described above, following which Karpel was
put on administrative leave and reported to the state board.
After being terminated by Inova, Karpel worked as a nurse at Cam-
elot Hall. She was terminated there when the administration at Came-
lot Hall discovered that she had failed to list her employment at
Cameron Glen on her application. Karpel claims that she did not dis-
close her employment at Inova to Camelot Hall because she feared
what her former employers might say about her.
Karpel brought suit against Inova, alleging violation of the Civil
Rights Act of 1866, violation of Title VII, and other claims. Inova
moved for and, after oral argument, was granted summary judgment
on all counts. Karpel appeals, arguing the district court erred in grant-
ing summary judgment on her hostile work environment, racial dis-
crimination, and retaliation claims.
II.
We review a district court's grant of summary judgment de novo.
See Higgins v. E.I. Dupont de Nemours & Co., 863 F.2d 1162, 1167
(4th Cir. 1988). Summary judgment is appropriate only "if the plead-
ings, depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no genuine issue
as to any material fact." See Fed.R.Civ.P. 56; Celotex Corp. v.
Catrett, 477 U.S. 317, 322-23 (1986). In determining whether a genu-
5
ine issue of material fact is in dispute, "[t]he evidence of the nonmo-
vant is to be believed, and all justifiable inferences are to be drawn
in his favor." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255
(1986).
III.
Karpel contends that her complaint set forth a claim for relief for
racial harassment based on a hostile work environment, citing lan-
guage in her complaint alleging that Inova engaged in "unlawful
employment practices" and that she was "continually harassed." She
further argues that this claim should proceed to trial because Inova
failed to move for summary judgment on the claim. Because Karpel
failed adequately to set forth her hostile work environment claim in
the district court, we affirm summary judgment on the claim.
Under the liberal pleading requirements of the Federal Rules of
Civil Procedure, it is not necessary for a plaintiff to set out in detail
the facts upon which her claim is based. All that is required in a
pleading is a "a short and plain statement of the claim showing that
the pleader is entitled to relief." See Fed.R.Civ.P. 8(a)(2). The main
purpose of the complaint is to provide the defendant"fair notice of
what the plaintiff's claim is and the grounds upon which it rests."
Conley v. Gibson, 355 U.S. 41, 47 (1957); Comet Enters. Ltd. v. Air-
A-Plane Corp., 128 F.3d 855, 860 (4th Cir. 1997).
Even under the liberal standards of the Federal Rules of Civil Pro-
cedure, however, a plaintiff "must at least set forth enough details so
as to provide defendant and the court with a fair idea of the basis of
the complaint and the legal grounds claimed for recovery." Self
Directed Placement Corp. v. Control Data Corp., 908 F.2d 462, 466
(9th Cir. 1990) (citations omitted). Karpel's complaint notably failed
to include any details by which defendant Inova or the district court
could have been put on notice that she intended to pursue a hostile
environment claim. Indeed, not until after summary judgment had
already been granted by the district court did Karpel submit the depo-
sitions which include the factual allegations upon which such a claim
might be predicated. Consequently, the district court's grant of sum-
mary judgment properly included Karpel's hostile environment claim.
6
Karpel's failure to raise this claim in the district court means that
this court will not consider it. We have repeatedly held that issues
raised for the first time on appeal generally will not be considered.
See, e.g., Muth v. United States, 1 F.3d 246, 250 (4th Cir. 1993);
National Wildlife Federation v. Hanson, 859 F.2d 313, 318 (4th Cir.
1988). "Exceptions to this general rule are made only in very limited
circumstances, such as where refusal to consider the newly-raised
issue would be plain error or would result in a fundamental miscar-
riage of justice." Muth, 1 F.3d at 250 (citing Hanson, 859 F.2d at
318). We can find no evidence in the record that such circumstances
exist here.
IV.
Karpel next contends that the district court erred in granting sum-
mary judgment on her race-based discrimination claim under Title
VII. We find, however, that Karpel failed to establish the necessary
element of intentional discrimination on the part of Inova, and there-
fore affirm the district court's grant of summary judgment.
Section 703(a) of Title VII of the Civil Rights Act of 1964 states
that:
It shall be an unlawful employment practice for an employer
--
(1) to fail or refuse to hire or to discharge any individual,
or otherwise to discriminate against any individual with
respect to his compensation, terms, conditions, or privileges
of employment, because of such individual's race....
42 U.S.C. § 2000e-2(a) (1994). Under Title VII, the plaintiff bears the
initial burden of proving a prima facie case of discrimination by rais-
ing an inference that the defendant acted with discriminatory intent.
Wileman v. Frank, 979 F.2d 30, 33 (4th Cir. 1992). This can be done
either through direct evidence of discriminatory intent, or by using the
four-part McDonnell Douglas scheme which provides an inference of
discriminatory intent. Id. (citing McDonnell Douglas Corp. v. Green,
411 U.S. 792, 802 (1973)). In this case, that would require Ms. Karpel
7
to show: "(1) that she is a member of a protected class; (2) that she
was qualified for her job and her job performance was satisfactory;
(3) that, in spite of her qualifications and performance, she was fired;
and (4) that the position remained open to similarly qualified appli-
cants after her dismissal." Williams v. Cerberonics, Inc., 871 F.2d
452, 455 (4th Cir. 1989) (citing McDonnell Douglas, 411 U.S. at 802;
Holmes v. Bevilacqua, 794 F.2d 142, 146 (4th Cir. 1986) (en banc)).
Karpel fails to make a prima facie showing of discrimination under
either approach. The record is devoid of any direct evidence of dis-
criminatory intent. Karpel alleges that intent can be inferred from
Inova's attempts to "build up a file" on her. She fails to present evi-
dence, however, that Inova's recording of her deficiencies as an
employee was racially motivated or that she was written up differ-
ently from other similarly situated employees. Cf. Few v. Yellow
Freight Sys., Inc., 845 F.2d 123, 124-25 (6th Cir. 1988) (discrimina-
tory intent found where record showed dramatic increase in write-ups
and that plaintiff was treated differently from similarly situated male
employees).
Because the record clearly demonstrates that Karpel's job perfor-
mance was unsatisfactory, we are also unable to infer discriminatory
intent under the McDonnell Douglas scheme. Karpel was repeatedly
tardy, had multiple inadequate medpasses, and failed to submit any of
her required monthly summaries. Karpel does present evidence that
there were other employees who were late, or had inadequate med-
passes, or were delinquent in submitting their monthly summaries.
This does not nullify the fact that Karpel's job performance was inad-
equate. As the district court correctly observed in its grant of sum-
mary judgment, "It would defy logic to look at each sort of
attendance, disciplinary, or performance problem in a vacuum; it is
the conglomeration of these issues that made Ms. Karpel an unsatis-
factory employee that Inova was justified in terminating." See also
Cook v. CSX Trans. Corp., 988 F.2d 507, 512 (4th Cir. 1993) ("[T]o
focus on one piece of the record without considering the whole would
distort the permissible inferences to be drawn."). Karpel presents no
evidence that any other employee had nearly the same problems as
she did across the board. Neither does she dispute the evidence show-
ing that she was the only nurse who failed to complete any of the
required monthly summaries. In short, the evidence that Karpel's job
8
performance was unsatisfactory is overwhelming. Any attempt to
infer discriminatory intent on the part of Inova therefore fails on the
second prong of the McDonnell Douglas test.
V.
Finally, Karpel argues that the district court erred in granting sum-
mary judgment on her retaliation claims. Two such claims were
advanced: retaliatory actions during her original employment with
Inova and retaliatory action that caused her to be discharged from her
subsequent job with Camelot Hall.
Under section 704(a) of Title VII, it is an "unlawful employment
practice for an employer to discriminate against any[employee] ...
because he has opposed any practice made an unlawful employment
practice by this subchapter, or because he has made a charge, testi-
fied, assisted, or participated in any manner in an investigation, pro-
ceeding, or hearing under this subchapter." 42 U.S.C. § 2000e-3(a)
(1994). The series of proofs and burdens outlined in McDonnell
Douglas apply to retaliation claims. See Ross v. Communications Sat-
ellite Corp., 759 F.2d 355, 365 (4th Cir. 1985). Therefore, in order to
establish a prima facie case of retaliation, a plaintiff must demonstrate
that (1) she engaged in protected activity, (2) the employer took
adverse action, and (3) there was a causal connection between the
two. Id. The burden then shifts to the employer to produce a legiti-
mate nondiscriminatory reason for the adverse action. Id. If the
employer does so, the plaintiff then bears the burden of showing that
the employer's proffered reason is pretextual. Id.
A
Karpel successfully established a prima facie case of retaliation
during her employment at Inova. She clearly engaged in protected
activity when she filed her EEOC complaint, and Inova took adverse
actions when it transferred her to a smoking unit, investigated her for
allegedly wrongfully administering medication, and later terminated
her. Although Karpel presents little or no direct evidence of a causal
connection between her protected activity and Inova's adverse action,
little is required. See, e.g., McNairn v. Sullivan, 929 F.2d 974, 980
(4th Cir. 1991) (plaintiff stated prima facie case even though there
9
was no evidence of causal connection other than the fact that plaintiff
was fired after bringing a lawsuit). Karpel therefore established a
prima facie case of retaliation based on Inova's actions while she was
employed with them.
Inova, however, has also met its burden by advancing legitimate,
nondiscriminatory reasons for its adverse actions. Inova stated that it
transferred Karpel to a smoking unit so she could receive increased
supervision and to allow her to be relieved for meals, as she had
requested. Inova stated that she remained in the smoking unit because
it had no suitable position open for her in a non-smoking unit, and the
record shows that Freestone did offer Karpel a transfer after Freestone
became aware of Karpel's problems with smoke, but Karpel refused
this transfer. According to Inova, no other suitable openings became
available before her termination. Karpel has presented no evidence to
rebut the reasons given by Inova for her transfer to a smoking unit or
to show them to be pretextual. Karpel alleges that pretext could be
inferred from Inova's failure to consider simply undoing the original
transfer. This allegation is unsubstantiated, especially in light of the
fact that Inova made at least some effort to transfer Karpel onto a
non-smoking unit once it became aware of her preference. Because
she presented no evidence that the reasons given for her transfer were
pretextual, Karpel failed to raise a genuine issue of material fact.
The obvious, non-retaliatory explanation for investigating the inci-
dent in which Karpel was alleged to have wrongfully administered
medication (the "Kaopectate incident"), is that Inova reasonably
believed that the allegations could be true. In addition, Karpel admits
to destroying a page in the patient's chart, in violation of nursing
practice. Karpel seeks to establish that reporting this incident to the
state board was pretextual by pointing to the Gonzalez and Chapman
incidents. These incidents involved very different types of profes-
sional breaches and are therefore difficult to compare. However, in
the Gonzalez incident, the white nurse involved was disciplined, even
though she was not reported to the state board. The white nurse who
assaulted Chapman was reported as soon as Inova confirmed that the
incident had occurred. Because any differences in reporting these
three incidents can be credited to the differences in the incidents
themselves, Karpel fails to create a genuine issue of material fact.
10
Inova's termination of Karpel was based on her unsatisfactory job
performance, including her tardiness and failure to complete her
monthly summaries. Karpel's problems in these areas are well-
documented, and she presented no evidence showing that the reasons
given by Inova for her termination were pretextual. Because she is
unable to meet her ultimate burden of persuasion that the legitimate,
nondiscriminatory reasons Inova proffers for its adverse actions dur-
ing the course of her employment there are pretexts, we affirm the
district court's grant of summary judgment.
B
Karpel also argues that Inova retaliated against her after her termi-
nation by informing her next employer that she had worked at Cam-
eron Glen. The district court held that this could not have constituted
an adverse employment action because Karpel's employment with
Inova had terminated by that time. Since the district court's decision,
however, the Supreme Court has overturned the case upon which this
holding was based, Robinson v. Shell Oil Co., 70 F.3d 325, rev'd, 117
S. Ct. 843 (1997). In Robinson the Supreme Court, reversing this cir-
cuit, held that the term "employees" in § 704(a) of Title VII is to be
construed to include former employees. 117 S. Ct. at 849.
We do not need to decide whether the Supreme Court's Robinson
decision applies retroactively to Inova's actions against Karpel after
she had been terminated because, even assuming arguendo that the
decision is retroactive, Inova's action in informing Camelot Hall of
Karpel's former employment at Cameron Glen does not constitute
"adverse action." There is no evidence that Freestone did anything
more than disclose that Karpel had worked for Inova; Freestone did
not reveal anything about Karpel's employment history or any pend-
ing litigation. Karpel's subsequent termination from her Camelot Hall
employment was based on the fact that she had fraudulently failed to
reveal her period of employment at Inova to her new employer. In the
absence of any adverse action on the part of Inova, Karpel fails to
establish a prima facie case of retaliation after her termination.
VI.
In conclusion, we hold that because Karpel failed to raise her hos-
tile work environment claim in the district court, she is precluded
11
from bringing this claim on appeal. In addition, because Karpel failed
to establish the necessary element of intentional discrimination on the
part of Inova, we affirm the district court's grant of summary judg-
ment on her race-based discrimination claim. Finally, we affirm sum-
mary judgment on Karpel's retaliation claims because she was unable
to rebut Inova's legitimate, nondiscriminatory reasons for its adverse
actions during the course of her employment and failed to show Inova
took any adverse action against her after her termination. Accord-
ingly, the judgment of the district court is affirmed.
AFFIRMED
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