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El-Sioufi v. St. Peter's University Hospital

December 29, 2005

NAGIBA EL-SIOUFI, R.N. AND ARLENE SIMPSON, R.N., PLAINTIFFS-APPELLANTS,
v.
ST. PETER'S UNIVERSITY HOSPITAL AND JACQUELINE CAREY, R.N., DEFENDANTS-RESPONDENTS.



On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, L-9466-00.

The opinion of the court was delivered by: Hoens, J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

APPROVED FOR PUBLICATION

Argued: September 20, 2004

Before Judges A. A. Rodríguez,*fn1 Weissbard and Hoens.

Plaintiffs Nagiba El-Sioufi, R.N., and Arlene Simpson, R.N., appeal from the January 10, 2003 order and the January 17, 2003 order, respectively, of the Law Division granting summary judgment in favor of defendants St. Peter's University Hospital (the Hospital) and Jacqueline Carey, R.N., and dismissing their employment discrimination complaint. We affirm the order of January 10, 2003 dismissing the claims raised by El-Sioufi and we dismiss as abandoned the appeal from the January 17, 2003 order filed by Simpson.*fn2

We have derived the following summary of the relevant facts from our review of the voluminous appendix of materials supplied by plaintiff*fn3 in support of and by defendants in opposition to the issues raised in the appeal.*fn4 Plaintiff first began to work at the Hospital, through the auspices of a temporary employment agency, as an Operating Room (OR) nurse in May 1997. A month later, defendant Carey, who was the Manager of the OR and the Post-Anesthesia Care Unit (PACU), hired plaintiff to work directly for the Hospital as an OR staff nurse. Carey was plaintiff's direct supervisor and prepared plaintiff's performance evaluations. Those early evaluations, in October 1997 and December 1998, indicated that plaintiff's nursing performance exceeded the standards for her position.

Beginning in January 1999, however, Carey received written and oral complaints from OR staff members and physicians about plaintiff's performance. Carey, as plaintiff's supervisor, kept the written complaints she received about plaintiff in a file and she began to record her own notes about plaintiff's performance, which she maintained in that file as well.

The written complaints were both many and varied. For example, in January 1999 the PACU charge nurse advised Carey that plaintiff's failure to alert PACU personnel about the special needs of a patient being brought from the OR resulted in a significant delay in obtaining equipment required for that patient's care. In February 1999, the evening charge nurse sent Carey a memo listing several occasions on which plaintiff had failed to correctly perform the instrument count in the OR. This led to an incident in which an abdominal incision could not be closed in a timely manner because plaintiff's count could not be verified. The same memo reported about other occasions when plaintiff failed to have the correct equipment available for the surgeon.

In March 1999, another staff member wrote to Carey, referring to several prior verbal complaints, and contending that plaintiff was disorganized in the OR. She advised Carey of a situation during which plaintiff's count could not be verified, as a result of which the surgeon ordered a patient to undergo an X-ray to ensure that no surgical tools or other materials had been left inside the patient. That staff member ended her written complaint by claiming that plaintiff was compromising patient safety and by advising Carey that she did not want to be assigned to the same OR as plaintiff, a request she had previously verbalized to Carey.

In addition, according to Carey, from December 1998 through February 1999, she received verbal complaints about plaintiff from five different surgeons. They described plaintiff as disorganized, inaccurate, argumentative and unfamiliar with procedures and equipment. Two of them specifically requested that plaintiff not be assigned to work with them in the future.

In March 1999, Carey and Beverly Johnson, R.N., who was the Perioperative Instructor at the Hospital, began to have regular meetings with plaintiff in response to these complaints. They told plaintiff that they were receiving complaints from other staff and from physicians about her performance. According to Carey, she and Johnson conducted these meetings in an effort to assist plaintiff in correcting her deficiencies. Carey asserts that they hoped to give plaintiff a chance to improve before her next formal evaluation, then scheduled for June 1999. Carey and Johnson met with plaintiff several times and asked her to work with Johnson. According to Carey, plaintiff simply refused to meet with Johnson for instruction and insisted that "she did not have any performance deficiencies."

On May 26, 1999, Carey and Johnson met with plaintiff, advised her of the continuing complaints and told her about the staff members and surgeons who refused to work with her. They also told her that because she would not meet with Johnson for further education and because she had not addressed the issues relating to compromised patient care, her assignment would be changed. Plaintiff was then reassigned to work as a break nurse and a laser operator. She was again asked to see Johnson for further instruction. Following that meeting, plaintiff still refused to meet with Johnson for educational assistance. Carey continued to receive written and oral complaints about plaintiff's performance and its effect on patient safety. The June 1999 evaluation described plaintiff's performance as "below standard."

In June 1999, plaintiff requested that she be permitted to take Friday, July 2, as a vacation day. Her charge nurse denied the request because vacation days were based on seniority and because others more senior than plaintiff had already been given that day. Soon after, plaintiff approached Carey with her request. Carey told plaintiff that because of the July 4th holiday, the weekend patient census and OR coverage issues, she could not guarantee that plaintiff could have the day off, but told plaintiff to find someone to cover her shift. On July 1st, plaintiff again approached Carey. Carey checked the staff schedule and patient census, and again told plaintiff to arrange for a replacement.

After Carey and the charge nurse, Joseph Abraham, checked the schedule again that evening, Abraham called plaintiff and informed her she could not have the next day off and that she needed to come in. In response, plaintiff, who had apparently not arranged for anyone to cover for her, called Carey at home. Plaintiff told Carey that she could not work on July 2 because of a family emergency. She conceded, however, that in actuality the emergency was a family wedding she wanted to attend. Carey told plaintiff that she still could not have the day off and that she was expected to be at work. Plaintiff did not report to work as directed, but instead, called out absent. Carey wrote up plaintiff for a one-day suspension for insubordination and gave her a written warning for excessive absenteeism because plaintiff had then been absent five times in six months. The suspension was never formalized, however, and never became part of plaintiff's formal personnel file. Instead, according to Carey, she put it in her own file because plaintiff apologized and asked if Carey would reconsider suspending her.

Carey continued to receive verbal and written complaints about plaintiff's performance. The complaints were related to both plaintiff's work with the laser equipment and her ability to take over for others in the OR when she was assigned to cover their breaks. By early October, both Carey and Johnson had received additional complaints from other OR staff members, including one who decided to forego a lunch break rather than leave the OR in plaintiff's care because of plaintiff's inability to maintain an accurate instrument count in her absence.

On October 15, 1999, Carey reminded plaintiff that her next evaluation would be taking place in a few months and again told her that she needed to meet with Johnson for assistance in addressing the deficiencies in her performance. Carey told plaintiff that if she would not meet with Johnson, they would consider placing her on a Performance Improvement Plan, also referred to as a Work Plan. The record reflects that if an OR employee is placed on a Work Plan, the employee is monitored by an OR instructor for ninety days. The employee is also required to meet for ongoing assessment of his or her performance and is subject to termination if the identified deficiencies are not improved by the end of the Work Plan period.

In late October 1999, plaintiff met with Jeff Williams, an employee in the Hospital's Human Resources Department. Plaintiff told Williams that Carey had threatened her with an unfavorable evaluation because she had refused to work on the upcoming Christmas holiday. On November 5, 1999, plaintiff sent a letter to Sheryl Slonim, Vice President of Patient Care Services for the Hospital, in which she confirmed her verbal complaint to Williams. According to that letter, plaintiff believed that Carey had subjected her to a "string of harassments regarding personal days, vacations and time off" and that her work assignment was switched from scrub nurse or circulating nurse to break nurse as a part of that harassment.

In particular, plaintiff alleged that Carey had "strong prejudices against people of different faiths and ethnic backgrounds." She based this conclusion on the fact that in June 1996, when she had first been interviewed for a job at the Hospital, she was told that she was hired but the job did not thereafter become hers and she was unemployed for a year. Arlene Simpson later told plaintiff that the offer was rescinded because Carey "changed her mind . . . and . . . would not hire a Muslim who wears a scarf on her head." Plaintiff's letter also stated her belief that, by being asked to work on Christmas and Easter, which are not holidays she observes, she was being discriminated against because of her religion. The letter accused Carey of lying about the complaints she had received and objected to any implementation of a Work Plan.

In response to that letter, the Hospital began an internal investigation. While that process was underway, OR personnel continued to complain to Carey that plaintiff's performance was deficient. During that time period, Carey received a complaint that plaintiff left a surgical specimen in the Recovery Room where the patient and family members could see it in violation of Hospital procedures. In November 1999, Johnson and Carey met with plaintiff and explained to her that her 1999 evaluation was "below standard."

Because of the continuing complaints about plaintiff's performance and because some of the complaints raised concerns about patient and staff safety, Beverly Johnson and Ellen Shuzman, who was the Hospital's Director of Education and Development, began to meet with plaintiff late in November. They identified the complaints that had been made and offered to assist plaintiff with additional education and training. They also told plaintiff that because of the nature of the complaints, Johnson would observe her and would evaluate her performance. When Johnson did so in December 1999, she identified several deficiencies in plaintiff's performance, including her inability to properly document instrument counts and follow verbal orders from physicians.

Early in February 2000, Carey received a memorandum from Johnson which advised her that plaintiff had placed surgical drapes into a hamper and that a scalpel handle and blade were found in those drapes by a technician. Johnson further advised that when she asked plaintiff about that incident, plaintiff told her that she had been in a rush. This incident was significant to Johnson and Carey because it posed a serious threat to the safety of hospital personnel and raised additional concerns about patient welfare. Johnson noted that the incident raised questions about plaintiff's familiarity with procedures relating to instrument counts which was particularly troubling because these procedures had been reviewed with all OR personnel during the previous week.

Because of continuing evidence of plaintiff's performance deficiencies and her failure to make progress, in February 2000, plaintiff was required to comply with a Work Plan. As part of that process, she attended regular meetings relating to her performance. According to hospital records, each meeting included a review of specific instances in which plaintiff's performance was inadequate and a discussion of any instances in which plaintiff demonstrated improvement. The Work Plan required plaintiff to be monitored by the OR instructor for ninety days for an assessment of her performance.

In April 2000, the Hospital sent plaintiff a letter signed by Slonim and by David Lister, the Vice President of Human Resources. That letter advised plaintiff that the investigation into her November 1999 complaint of religious discrimination was complete. The letter also advised her that the Hospital had concluded there was no evidence of religious discrimination by Carey. However, plaintiff was asked specifically to immediately report any future acts which she believed were discriminatory. The letter closed by noting that plaintiff's supervisors had identified performance deficiencies, which were then being addressed through the Education Department and the Work Plan.

In July 2000, plaintiff completed the Work Plan. Nevertheless, Carey continued to receive complaints about plaintiff's performance from OR staff and others. These complaints included instances in which plaintiff misused or was unfamiliar with equipment, failed to maintain legible documents, failed to record equipment or supply counts and miscounted surgical sponges, scalpels and similar equipment. In addition, on May 11, 2001, Carey received a complaint that resulted in a written warning to plaintiff based on her failure to properly connect EKG leads to a patient during surgery. Plaintiff's error led to inaccurate EKG readings during that surgical procedure. The written warning advised plaintiff that further incidents would result in discipline.

On May 18, 2001, one of the surgeons reported that plaintiff was responsible for a lost biopsy specimen. Plaintiff had been the circulating nurse during a biopsy procedure the physician had performed. As such, she was responsible for labeling, documenting and sending specimens from the biopsy to the pathology lab. When the specimen container arrived at the pathology lab, however, it was empty. An investigation into the incident revealed that plaintiff had not confirmed the specimens. When plaintiff was asked to provide a statement relating to the missing specimen, she refused. The Hospital concluded that the missing biopsy specimen ...


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