Why it matters

A California appellate panel affirmed dismissal of a religious discrimination suit brought by a hospital employee last week, finding that the registered nurse and minister failed to establish that the employer’s reasons for his termination were pretextual. Hospital employee Gumaro Trevino alleged he was improperly fired because of an incident involving a dose of opioid pain medication that he did not fully dispense to a patient. After giving multiple explanations for his actions, Trevino was placed on paid suspension and then fired. Although the employer stated he was terminated for failing to properly dispense the drug and falsely documenting a full dose in the records, the plaintiff argued he was really being discriminated against for being a minister at a Christian church. A trial court granted summary judgment in favor of the hospital, and the appellate panel affirmed. The plaintiff was unable to demonstrate that the reasons given for his termination were pretextual, the court said.

Detailed discussion

Gumaro Trevino became an employee of Southern California Permanente Medical Group in 2008 when it acquired the hospital where he was already working. A registered nurse, Trevino was assigned to the emergency department. When his new supervisor took over the department, she found a widespread practice among the nurses of failing to follow the proper protocol for disposing of medication and instituted new procedures holding employees accountable. The supervisor was also aware that Trevino was a minister at a nondenominational Christian church.

In 2011, a nurse found a syringe containing Dilaudid, a powerful and dangerous narcotic, in a cabinet in an examination room. Based on the date and the patient information, the supervisor determined Trevino had been the nurse tasked with administering the drug. When first asked, he admitted he administered only half the dose ordered by the physician, adding that he “titrates” medications for his patients.

But in a later written statement, Trevino claimed the patient asked him to stop after he had administered only a half dose and that he left to take care of other patients and forgot about the syringe.

Hospital procedures permitted nurses to stop administering medication upon a patient’s request. However, the nurse was then required to document in the medical record the accurate amount of the dose, notify the physician of the change and properly dispose of the unused medication (which involved another nurse as a witness).

Trevino was placed on a paid investigatory suspension, at the end of which it was recommended he be fired. The stated reasons for his termination were leaving the unused portion of the controlled substance in the syringe, failing to dispose of it according to policy, documenting falsely in the record that he administered the full dose, neglecting to carry out the physician’s order accurately and failing to notify him as such, and admission of titrating patients’ medications, which was outside the scope of his position.

He then filed suit in California state court, alleging the hospital violated the state’s Fair Employment and Housing Act by harassing him as well as discriminating and retaliating against him based on his religion. The hospital filed a motion for summary judgment, contending that it had legitimate, nondiscriminatory reasons for terminating Trevino. A trial court agreed, and the plaintiff appealed.

In an unpublished opinion, a California appellate panel affirmed, finding insufficient evidence to raise a triable issue of fact as to whether the hospital’s stated reasons for the termination were pretextual.

Trevino asserted seven different types of evidence of pretext, each of which the court rejected. He first argued that he was not terminated for false documentation because hospital policy permits a nurse to refrain from administering a full dose. When a nurse administers medication, he or she scans the bar code for the patient and then the medication, creating a record that the medication has been given. Therefore, the record is already false when a nurse doesn’t give a full dose, he told the court.

“However, this is only true fleetingly—after the bar codes are scanned and before the nurse corrects the chart,” the court said. “This complies with Permanente’s procedures; it will not mislead anyone. Trevino, however, was terminated because he failed to comply with Permanente’s procedures; he never corrected the information in the chart, leaving it misleading.”

The court found no merit to the argument that termination for failing to carry out a physician’s order was pretextual. Although Trevino was allowed to stop administering a medication if a patient so requested, he was fired because he additionally failed to notify the physician of the fact he did not carry out the order accurately, pursuant to hospital policy.

Trevino made much of the fact that no nurse had ever been fired for failure to properly dispose of medication. But the court noted that the incident involved a controlled substance and that the failure to properly dispose of medication was only one of several reasons given for Trevino’s termination, including “for false documentation, failing to notify the physician that he had not administered a full dose, and for leaving the syringe in an unsecured area.”

The court took issue with the plaintiff’s explanation that he “titrates” for his patients, or as Trevino explained it, gives medication according to the patient’s weight and age. “However, as he admitted, he was not authorized to do so,” the appellate panel wrote. He could thus be terminated for this action as well as the fact that “he could not keep his story straight,” the court added, as he claimed in his written statement that he did not give a full dose because the patient asked him to stop.

Additional arguments that the hospital characterized the allegations against him in the “worst possible light” and that his supervisor acted as a “cat’s paw” for others who had a discriminatory animus against him lacked supporting evidence, the court said.

Finally, the panel found no disparate treatment of Trevino as evidence of pretext. The plaintiff argued that his team leader was treated differently when the team leader was accused of religious discrimination and harassment, but the court said the two situations were too dissimilar for comparison.

“An employer could reasonably treat Trevino more harshly, because his misconduct had a potential impact on patient care,” the court said. “Or, of course, an employer could reasonably treat [the team leader] more harshly, particularly as Trevino’s conduct did not cause any actual harm. Our point is that the two types of conduct are apples and oranges.”

The panel affirmed summary judgment in favor of the hospital and awarded it costs for the appeal.

To read the opinion in Trevino v. Southern California Permanente Medical Group, click here.