The opinion of the court was delivered by: Royce C. Lamberth, United States District Judge
Before the court is the District of Columbia's motion for summary judgment  on the claims of Vivian Banks in her action  brought under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §2000e-16(a), the Age Discrimination in Employment Act (ADEA), 29 U.S.C. §633a(a) and the Due Process Clause via 42 U.S.C. §1983. Plaintiff has failed to show that she and her nurse manager were similarly situated and therefore, she cannot prevail on her claims of either gender or age discrimination. Consequently, the defendant's motion for summary judgment  must be GRANTED. Because the plaintiff has not established a prima facie case of discrimination, her § 1983 claim is also denied.
Plaintiff, Vivan Banks, is a 62-year-old African-American female*fn1 who was hired by St. Elizabeth's Hospital in June 1998 as a Nurse, Team Leader for the Department of Mental Health. (Banks Dep. at 7, July 21, 2006.) The case at hand involves the events of December 14, 2001 in which plaintiff was assigned as charge nurse on Admissions ward 6 from 7:00 a.m. to 3:30 p.m. (Id. at 18.) Lewis Mayo was the nurse manager assigned to ward 6 on that day, and also served as Banks' supervisor. (Id. at 59.) On that day, Patient #141528, who had a history of threatening and disruptive behavior, obtained a knife on two separate occasions, and engaged in dangerous behavior.*fn2 In the first incident, the patient ran into the nurses' station kitchenette, grabbed a knife, and threatened to kill herself. (Banks Dep. 30.) A few hours later, a knife fell out of the patient's pocket as she ran toward and grabbed Mildred Jones, a nursing assistant. (Banks' Test. Before Hr'g. Officer Rotella 24, May 9, 2002.)
The personnel assigned to the unit that day included, the plaintiff, Lewis Mayo (nurse supervisor), and anywhere from one to two registered nurses ("RNs"), and three to six psychiatric nursing assistants ("PNAs"). (Banks Dep.18-19.) The minimum staffing requirement for a unit of 23 patients is 1 RN and 3 PNAs. However, on the day in question, the unit had 29 patients. (Banks Dep. at 19, 44, 87.) Vivan Banks, the plaintiff, was responsible for completing the CMHS Nursing Assignment Sheet for staff assigned to the unit. (Id. at 18-19.) Mayo is the nurse manager for the unit, and also has administrative duties which he periodically leaves the unit to attend to. (Id. at 49.) While he is away, Mayo is available by pager should he be needed. (Mayo Dep. 33, 34, May 16, 2006.)
At 7:00 a.m., when her shift started, plaintiff charged Mildred Jones with providing "oneto-one" contact with Patient #141528, which she recorded on the CMHS Nursing Assignment Sheet. (Def. Ex. B; CMHS Nursing Assignment Sheet.) This type of observation is regarded as unofficial when it is given by a nurse instead of a doctor. A nurse providing one-to-one contact must observe the patient and retrieve various things the patient may need. (Banks Dep. 28.) The observation continued until approximately 12 noon when the first incident with Patient #141528 occurred. At the time, the unit was staffed by 1 RN and 3 PNAs, and Banks. (Id. at 62.) Mr. Mayo, the nurse manager, had left at 11:00 a.m. to go to lunch. (Mayo Dep. 33, 34.)
After the episode, Marina Bota, M.D. prescribed two mgs of Ativan for the patient*fn3 , along with official one-to-one contact.*fn4 (Banks Dep. 36.) However, plaintiff failed to record the official order of one-to-one contact on the patient's medical record. (Banks Dep. 96, 97) This resulted in subsequent problems because when Jones came back from lunch, she was under the impression that she was still providing only unofficial one-to-one contact and not official contact. (Banks' Test. Before Hr'g. Officer Rotella 23. ) Mr. Mayo was paged and he responded and filed an Unusual Incident Report. (Def. Ex. J;Unusual Incident Rep., Dec. 14, 2001.) Mayo did not order any additional staff to the unit, and left the unit again sometime before 2:00 p.m. Plaintiff requested additional staff immediately after the incident to help administer medication to the patient, which she obtained. (Mayo Dep. at 40-41.) Plaintiff allowed nurse Jones to go to lunch at 2:15 p.m. and took over the one-to-one contact herself. Plaintiff did not request additional staff at this time, despite the fact that she was being called away from the patient to answer the phone and respond to others' requests. (Banks' Test. Before Hr'g. Officer Rotella 23-24.)
At 2:45 p.m., Ms. Jones returned from lunch and was met with another incident regarding the patient. Plaintiff testified, "I heard Jones yelling and when I opened the door to the break room that the staff uses, [Jones] said the knife had fallen out of the patient's pocket." (Banks' Test. Before Hr'g. Officer Rotella at 24.) Now, Ativan and Haldol were prescribed, and the patient was placed in seclusion. (Def. Ex. I; Medical Record, Doctor's Orders, Dec. 14, 2001.) Plaintiff was unable to prepare a report on the incident because she needed to leave the hospital by 3:45 p.m. that day for an appointment. (Banks' Test. Before Hr'g. Officer Rotella at 53.) However, plaintiff worked the next two days (December 15th and 16th) and still did not file a report. (Banks Dep. at 68.) Plaintiff filed a report on December 19th which stated that no person in particular was assigned to perform the one-to-one contact with the patient. (Def. Ex. K.; Banks Report, Dec. 19, 2001.)
After the hospital conducted an internal investigation, DMH found that plaintiff was negligent in her duties and on January 10th, 2002, Banks was summarily removed from her position for inexcusable neglect of duty. Def. Ex. M. Plaintiff contested the findings in an administrative hearing before Hearing Officer Rotella, Jr. The Hearings Officer found that Plaintiff (1) "failed to ensure one-to-one contact in accordance with Dr. Bota's order" or reflect any assignment of the official one-to-one in the patient's records; (2) "PNA Jones provided uncontradicted testimony that, prior to 2:45 p.m., she was merely 'keeping an eye' on [the] patient" pursuant to plaintiff's request at the beginning of the shift; (3) plaintiff could not have provided adequate one-to-one contact during any of the time in question" because plaintiff failed to stay within arm's reach of the patient and undertook other tasks during her self assignment; (4) plaintiff failed to "timely document in Patient #141528's medical record the details of the two incidents that took place on December 14." (Def. Ex. O; Hr'g Officer Rep. to Deciding Official, 10, Aug. 27, 2002.) Subsequently, the HO issued a recommendation that plaintiff be issued a written reprimand for neglect of duty, that she be reinstated to her former position on a probationary basis, and also that she be reimbursed for lost wages. (Def. Ex. Q; Banks' Performance Evaluation.)
On June 13, 2003, Martha Knisley, the Director of the D.C. Department of Mental Health issued a final ruling on the matter. She suspended the plaintiff for 9 days, from December 27, 2001 to January 4, 2002, and restored her to her former position with back pay for the period of January 5, 2002 to June 14, 2003. (Def. Ex. P; Pl.'s Disciplinary Determination.)
Plaintiff has brought suit alleging that the defendant discriminated against her by summarily removing her and suspending her for nine days without pay. Plaintiff seeks lost wages and benefits plus interest, and damages for pain and suffering due to humiliation, depression, anxiety and loss of self-esteem. (1st Am. Compl. at 7.)
A motion for summary judgment can only be granted if, "there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). In Anderson v. Liberty Lobby, Inc., the Supreme Court further defined when summary judgment is appropriate. Only if no reasonable juror could find for the non-moving party can the court grant summary judgment. 477 U.S. 242, 248 (1986). Further, "at the summary judgment stage the judge's function is not himself to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Id. at 249. "Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge." Id. The court must also view the evidence in the light most favorable to the plaintiff, the non-moving party. Borgo v. Goldin, 204 F.3d 251, 254 (D.C. Cir. 2000).
Plaintiff has brought a claim under Title VII of the Civil Rights Act of 1964 for gender discrimination, and under the ADEA for age discrimination. Title VII states, "It shall be an unlawful employment practice for an employer to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin." 42 U.S.C. § 2000e-(2)(a)(1). While this section only applies to private employers, the act charges federal agencies with compliance via § 2000e-16(a). In Singletary v. Dist. of Columbia, the court held that this included District of Columbia agencies as well. 351 F.3d 519, 523-24 (D.C. Cir 2003). The text of the ADEA ...