Cleveland jury awards $900,000 against hospital in age discrimination case

Ellen Simon, an attor­ney in Cleve­land who authors the excel­lent blog, Ellen Simon’s Employ­ee Rights Post, recent­ly tried an age dis­crim­i­na­tion claim for plain­tiff Glo­ria Parks (a phle­botomist) against Cleveland’s Uni­ver­si­ty Hos­pi­tals Case Med­ical Cen­ter.

Ms. Parks had worked for the hos­pi­tal for 30 years when she was fired over a med­ical mis­take involv­ing her­self and anoth­er much younger employ­ee. The hos­pi­tal fired Ms. Parks, but not the much younger employ­ee.

The jury returned a ver­dict in favor of the plain­tiff (Ms. Parks) for $450,000 for her eco­nom­ic loss and $450,000 for “oth­er com­pen­sato­ry dam­ages”, accord­ing to Ms. Simon’s blog arti­cle. Based on the lim­it­ed infor­ma­tion I have so far, it looks like the “oth­er com­pen­sato­ry dam­ages” was an award for emo­tion­al dis­tress, The jury did not award puni­tive dam­ages.

So the ver­dict totals $900,000, and Ms. Simon will file a request for attor­neys’ fees’ fees and expens­es. While it is not clear from the arti­cle so far, I sus­pect the case was assert­ed for age dis­crim­i­na­tion under Ohio’s Fair Employ­ment Prac­tices Act (and not the fed­er­al ADEA).

Here are the keys facts from Ms. Simon’s arti­cle, which in turn is based on an arti­cle in (there is also an arti­cle by the Cleve­land Plain Deal­er about the ver­dict):

Parks’ law­suit charged that her ter­mi­na­tion stemmed from a patient iden­ti­fi­ca­tion inci­dent in July of 2008, involv­ing Parks and a younger co-work­er in the pre-admis­sion test­ing depart­ment where they both worked. The mix-up occurred when two patients with the iden­ti­cal name appeared at the depart­ment on the same morn­ing to get their blood drawn. UH claimed that Parks failed to fol­low the prop­er patient iden­ti­fi­ca­tion pol­i­cy, but wit­ness­es tes­ti­fied that the pol­i­cy was not enforced in the depart­ment and not prop­er­ly fol­lowed by the employ­ee who checked the patient in that day, pulled the wrong med­ical chart, and passed it off to Parks. The mis­take was dis­cov­ered and cor­rect­ed before the patient left the depart­ment and the blood work was for both patients was prop­er­ly processed with­out any error. Nei­ther patient was harmed. After Parks was fired, the depart­ment changed its pro­ce­dures in the depart­ment to require proof of iden­ti­fi­ca­tion at the time of check in with a driver’s license.

Parks claimed that Steve Diltz, who became her super­vi­sor five months pri­or to the inci­dent, had sin­gled her out and treat­ed her dif­fer­ent­ly than her younger cowork­ers since his assign­ment to her depart­ment. Evi­dence pre­sent­ed at tri­al showed that Diltz seized on the iden­ti­fi­ca­tion inci­dent as a means to ensure that Parks was fired, and that his deci­sion to unjust­ly fire her was sup­port­ed with­out ques­tion by Uni­ver­si­ty Hos­pi­tals human resources depart­ment as well as Diltz’s man­ag­er with­out any inde­pen­dent inves­ti­ga­tion. The inci­dent result­ed in a patient com­plaint, but the tes­ti­mo­ny of the patient revealed that it was a third employ­ee involved with the patient — the depart­ment nurse — not Parks, who had upset the patient on the day in ques­tion. The nurse was nev­er dis­ci­plined.

I do a lot of lit­i­ga­tion involv­ing med­ical care employ­ees in hos­pi­tals, and there are sev­er­al key facts from Ms. Parks’ case that strike me as impor­tant and recur­ring in this kind of lit­i­ga­tion:

  1. Plain­tiff alleges that a new super­vi­sor comes on the scene and starts treat­ing the nurse employ­ee worse, based on some alleged dis­crim­i­na­to­ry motive.
  2. Plain­tiff alleges that the new super­vi­sor is pick­ing on the plain­tiff and is “out to get” the plain­tiff, so the super­vi­sor is alleged­ly look­ing for some type of ammu­ni­tion to use to jus­ti­fy fir­ing the plain­tiff.
  3. An actu­al or alleged med­ical mis­take occurs. Some­times an inci­dent report is pre­pared, some­times there are reports to reg­u­la­to­ry author­i­ties.
  4. Plain­tiff gets fired over the med­ical mis­take.
  5. Plain­tiff alleges she was not at fault, some­one else was at fault, or there is shared fault. Or plain­tiff alleges there was no med­ical mis­take at all.
  6. Plain­tiff alleges that the pol­i­cy or pro­ce­dure relat­ing to the med­ical mis­take was poor­ly com­mu­ni­cat­ed, with inad­e­quate train­ing by the hos­pi­tal, so that dis­ci­pli­nary action is unrea­son­ably harsh under the cir­cum­stances. Or plain­tiff alleges there was no pol­i­cy or pro­ce­dure at all which was vio­lat­ed.
  7. Plain­tiff alleges that oth­er employ­ees have also vio­lat­ed the pol­i­cy, either because of lack of infor­ma­tion or gen­er­al non-enforce­ment, and those oth­er employ­ees suf­fered no dis­ci­pli­nary action. Or plain­tiff alleges that oth­er employ­ees han­dled the par­tic­u­lar sit­u­a­tion in the same way as plain­tiff, to argue that there was no pol­i­cy or pro­ce­dure as the hos­pi­tal alleged.
  8. Plain­tiff alleges that the inves­ti­ga­tion was biased or incom­plete or both, and that the super­vi­sor with the alleged bias con­trolled the inves­ti­ga­tion and con­duct­ed it in an unrea­son­able man­ner.
  9. Plain­tiff alleges that any review of the inves­ti­ga­tion by high­er hos­pi­tal offi­cials was a super­fi­cial “rub­ber stamp”, lack­ing any real scruti­ny of the valid­i­ty of the inves­ti­ga­tion and dis­ci­pli­nary action.
  10. Arguably con­firm­ing the plaintiff’s con­tention that the hospital’s pol­i­cy or pro­ce­dure was poor­ly or incon­sis­tent­ly applied, the hos­pi­tal lat­er mod­i­fied or cor­rect­ed the pro­ce­dure. Plain­tiff alleges that the mod­i­fi­ca­tion of the pol­i­cy or pro­ce­dure con­firms that she was not at fault.

Fact pat­terns includ­ing some or all of these items above pop up pret­ty fre­quent­ly in med­ical indus­try employ­ment lit­i­ga­tion. Ms. Simon says she is going to write a more detailed sum­ma­ry of the case soon, and I look for­ward to read­ing more about it.

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Drew M. Capuder

Publisher of Drew Capuder's Employment Law Blog. Lawyer with more than 29 years experience, focusing on employment law, commercial litigation, and mediation. Extensive trial and appellate experience in state and federal courts. Call Drew at 304-333-5261
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