Nurse’s Complaint of Harassment After Being Disciplined Supported Lawsuit

By Jeffrey Rhodes February 23, 2017

A 60-year-old nurse of Chinese descent can pursue discrimination and retaliation claims against her longtime employer, the Cleveland Clinic Foundation, after she responded to her discipline for poor patient care by claiming harassment, the 6th U.S. Circuit Court of Appeals ruled.

The Cleveland Clinic Foundation (CCF) hired Farley Lee in 1976 when she was 23 years old. Lee is of Chinese descent, was born in India and immigrated to the United States in 1976.

Josalyn Meyer became Lee's supervisor in 2009 and generally gave her positive performance reviews.

In 2013, Lee claimed that a nurse stated, "you Chinese people eat anything that crawls and walks" and said that Lee did not have "chinky" eyes even though she is Chinese. Lee claimed that she reported the incident to a supervisor, Debbie Brosovich, in December 2013 and Brosovich responded that Lee was "overreacting" and being "sensitive."

On April 15, 2014, Meyer called Lee into her office to discuss an incident in which Lee allegedly told a patient that she did not have the time to deal with the patient's medication needs and the patient should handle it herself. At that meeting, Lee complained that she was being discriminated against because of her age and race. Lee further complained to Brosovich that Meyer discriminated against her because of her age and race.

Lee alleged that, during performance reviews in 2013 and 2014, Meyer commented on Lee's long tenure, told her "things have changed," and asked her when she was going to retire. Lee also claimed that Meyer compared Lee to her father who "was a laborer when he was 15 years old and he doesn't know when to stop." Lee claimed that younger nurses called her an "oldbie" or "old bitch."

In mid-April 2014, a nurse reported another incident involving Lee in which a patient was almost sent into an operation without a properly prepared intravenous medicine mixture. There was no record of a written complaint by the patient, and Lee claimed that the mistake was made by a nursing student. Meyer issued Lee a corrective action and performance improvement plan (PIP) on April 30, 2014, for lack of nursing care and communication and failure to take accountability for her actions.

In response, Lee filed a written complaint with the CCF's senior HR director challenging the PIP and claiming a hostile work environment. Lee also met with an HR representative and complained that she was being treated differently because of her race, describing the comments Meyer had made encouraging her retirement. HR determined that there was nothing to investigate based on Lee's complaints.

In July 2014, a report was made that Lee failed to promptly notify a doctor of a patient's elevated blood pressure despite the risk of that patient suffering an aortic aneurysm. Meyer prepared a written warning that was provided to Lee on July 18, 2014. Lee complained of the warning, alleged discrimination and threatened to get a lawyer.

Shortly thereafter, Meyer claimed that Lee confronted the patient after receiving the corrective action, told the patient that she was being fired and upset the patient. Meyer immediately suspended Lee for at least three days and informed her that she should not return to the workplace or contact the unit until she was instructed to do so.

In response, Lee tendered her resignation on July 20, 2014. After Lee resigned, Meyer hired several registered nurses, all below the age of 30, starting with Matt Holdyk, a 29-year-old white man. Lee filed a discrimination complaint in federal court, and the CCF filed a motion for summary judgment to have the claims dismissed before trial. The district court granted the motion and dismissed the case, and Lee appealed to the 6th U.S. Circuit Court of Appeals.

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On appeal, the court found that Lee stated a valid claim of discriminatory discharge that should proceed to trial. The court found that the harassment alleged by Lee could support a claim that her working conditions were objectively intolerable and that discrimination could be inferred from her replacement by a young, white man. The court further found that her retaliation claim should go to trial based on her discipline and suspension shortly after her complaints. A dissenting judge disagreed and argued that the court should defer to the CCF's good-faith belief that Lee had engaged in serious misconduct.

Lee v. Cleveland Clinic Foundation, 6th Cir., No. 16-3091 (Jan. 20, 2017).

Professional Pointer: An employer should investigate a complaint of harassment or discrimination even if it seems that the complaint is being made to avoid legitimate discipline. Failure to investigate such a complaint can support an employee allegation that the employer ignored ongoing harassment and pursued discipline to punish the employee for complaining.

Jeffrey Rhodes is an attorney with Doumar Martin in Arlington, Va.

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