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Kigera v. Bethesda Lutheran Communities

United States District Court, D. Kansas

January 26, 2018




         Plaintiff Carolyne Kigera asserts Title VII claims for race/national origin discrimination and unlawful retaliation against her former employer Bethesda Lutheran Communities (“Bethesda”). The matter is now before the court on Bethesda's motion for summary judgment (Dkt. 41). For the reasons stated herein, the court finds that the motion for summary judgment should be granted.

         I. Uncontroverted Facts

         Bethesda is a nonprofit organization and Christian social service charity that operates homes for persons with intellectual and developmental disabilities. Bethesda maintains a business office 14150 West 113th Street, Lenexa, Kansas, 66215. Carolyne Kigera is an African-American of Kenyan national origin. In 2011, Bethesda hired Kigera as a licensed practical nurse (LPN) at its Lenexa location.

         Bethesda maintains an EEO policy, the Fair Treatment and Problem Resolution Procedure and Anti-Harassment Policy, in its Employee Handbook, which prohibits discrimination on the basis of race, race/national origin, prohibits retaliation, and provides a procedure for employees to make reports of discrimination.

         Kigera began employment with Bethesda in 2011 as a Licensed Practical Nurse (LPN) at Bethesda's campus in Lenexa, Kansas, and worked as an LPN (except for a couple of shifts) to the end of her employment. While employed at Bethesda, Kigera received training through the American Red Cross First Aid/PR participant manual. The manual provides direction to obtain emergency services by calling 911 if the caregiver thinks that a person has suffered a head injury.

         Bethesda also maintains an organization-wide Change In Condition policy, which was issued in March 2014 and which has been in place since that time. The policy, which consists of four pages, was provided to all organization staff in Lenexa, including Kigera. Kigera received the policy and training on the policy in March 2014 and June 5, 2014. The policy provides in part that injuries to the head are considered medical emergencies:

FOR MEDICAL EMERGENCIES CALL EMS (911) and initiate First Aid or CPR as necessary. Examples of medical emergencies include (not an exhaustive list): The individual … has injuries to the head….

         The policy provides that unwitnessed falls are considered serious medical issues and require the individual to be sent to the Emergency Room or Urgent Care. The policy states:

FOR A SERIOUS MEDICAL ISSUE that requires prompt medical attention, assist and transport the individual to the Emergency Room or Urgent Care. These issues include the following (not an exhaustive list): … unwitnessed fall….

         Kigera testified she does not believe an injury to the head or an unwitnessed fall is a medical emergency or serious medical issue. She does not believe an unwitnessed fall that results in an injury to the head should require her to contact emergency medical services.

         On February 19, 2015 while Kigera was on duty, a resident[1] at Bethesda - “RW” - had an unwitnessed fall that resulted in a hematoma to his head. On February 23, 2015, Kigera signed a statement regarding the incident as follows:

At about 5pm called to the hallway outside SleepMed's room because [RW] was found on the floor there. When I arrived he was still on the floor - I went into the bathroom to get gloves and when I returned he was trying to stand up. I, Anthony (DSP) [Direct Support Professional] and Solomon (DSP) helped him to a standing position and walked with him to the bathroom. While in the bathroom I did my assessment - he was verbally responsive, his range of motion was fine, checked his pupils, and looked for injury. There was a small area on the back of his head (see nursing note 2/19/15 5pm). No. treatment was deemed needed at that time. At this time I started the neurological flow sheet and checked him periodically throughout the evening. Around 10pm I saw [RW] throw-up in the common area of the house. I immediately called the doctor - I believe on my cell phone. The doctor ordered that he be sent to the ER. A staff person (DSP) took him to the ER. The final neurological assessment on the flow sheet was completed after [RW] threw up and it was noted that his blood pressure was somewhat elevated. During the time period between the fall and the time he threw up he was acting normally - walking around, talking to people, he ate his dinner. No. one noted any concerns to me during this period.

         The injury to RW on February 19, 2015, resulted in brain bleeding and a traumatic brain injury. RW was in the hospital as a result of the fall until March 31, 2015, when he returned to Bethesda.

         An incident report prepared by Catherine Malinda stated, based upon a statement from DSP Ebenezer Agyapong, that the nurse “quickly performed the normal procedure before she got [RW] up from the floor, ” and that her response was “fantastic” because “in less than one minutes she was present to performed her procedure and ok him to got up and mr. [RW] did.” [grammatical errors in original].

         An initial investigative report on the February 19 incident was conducted by Jerilynn Anderton, the Regional Quality Enhancement Director for Bethesda, from February 23 to February 26, 2016. The inquiry was made to determine whether there was negligence on the part of Bethesda staff for not ensuring that RW was taken to the emergency room immediately after the injury. Her report describes the incident as occurring when another resident knocked RW down (as shown on video); it states that RW was discovered by staff within three minutes; that Kigera was brought immediately to assess RW and noted he had hit his head; Kigera initiated a neuro check which continued from the event throughout the evening until 10:30 p.m., when RW threw up; the physician was called and instructed that RW be taken to the hospital; and RW was taken the hospital where it was discovered that he had bleeding on the brain.

         Anderton's report includes the aforementioned statement of the incident signed by Kigera. (See Pp. 3-4, supra). Kigera contends the description is incomplete because she contends she made two calls to Bethesda's on-call doctor that evening, with the first call occurring at some point between 5 p.m. and 9 p.m. Kigera said she cannot remember when that call took place. She contends the doctor told her at that point to monitor the patient and send him to the ER if there was any change in condition. She testified she called the doctor a second time after RW threw up. She says she signed the statement in Anderton's report because Anderton told her to sign it.

         Anderton's report concluded that “[n]eglect is not substantiated for this incident, ” stating that RW was discovered immediately, “a neurological check was put into place with observations occurring regularly through the evening, ” and RW acted normally after the incident until he threw up five hours later.

         From March 30 to April 2, 2015, Bethesda Corporate Nursing Director Elizabeth Gifford was present at Bethesda's Lenexa campus. Her job includes reviewing nursing practices and overseeing the training of nursing practices. Gifford knew RW from a prior visit and was familiar with his medical condition. In her opinion, RW had experienced a significant decline in function after the fall, for example he needed assistance in walking. Gifford said as a result of her observations, she conducted a nursing review of the February 19 incident. Gifford notes that the initial investigative report was done by Jeri Anderton, who is not a nurse or licensed health care professional, and Gifford believes Anderton did not understand or appreciate the significance of what Gifford concluded was a failure to follow nursing protocol during the incident. Gifford states in an affidavit that at the time of her review, she was unaware of and was not involved in any way in any discrimination complaint by Kigera. Gifford's report asserted that under the LPN core curriculum on emergency response to a suspected head injury, basic measures include not moving the person and seeking emergency health services. It asserts that the Red Cross First Aid/PR participant manual also provides direction to obtain emergency services by calling 911 for any suspicion of head injury, and noted that Kigera's attendance records show she attended training on this course. Gifford concluded that Kigera “failed to follow prudent nursing practice to seek prompt emergency health care for the suspicion of head injury” and that she “failed to notify RN or Management regarding possible head injury.” Gifford determined there was a six-hour delay in obtaining treatment and that RW suffered a decline in function due to the injury. Gifford recommended review of Kigera's performance to determine if it met the Kansas definition of “neglect” and follow up on what she termed the LPN's substandard performance.

         As a result of Gifford's review, Bethesda placed Kigera on administrative leave. On April 23, 2015, Bethesda advised Kigera of her termination, with the explanation that it ...

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