United States District Court, D. Columbia
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MICHAEL AKOSILE, Plaintiff, Pro se, Washington, DC.
ARMED FORCES RETIREMENT HOME, Defendant: Jeremy S. Simon,
LEAD ATTORNEY, U.S. ATTORNEY'S OFFICE FOR THE DISTRICT OF
COLUMBIA, Washington, DC.
B. WALTON, United States District Judge.
Michael Akosile, proceeding pro se, brings this action
against his former employer, the Armed Forces Retirement Home
(" Retirement Home" or " defendant" ),
alleging that he: " was removed from the Federal Service
on June 18, 2008 . . . based on false charges,"
Plaintiff's  Amendment to the Complaint  (" Am.
Compl." ), ECF No. 26, at 2; " was suspended for
three days from [March 11, 2008 to March 13, 2008] . . .
[with] [n]o evidence of wrong doing," id. at 3; was the
subject of " sex discrimination," id. at 3-5;
" received various retaliation [in response] to his
former [Equal Employment Opportunity (" EEO" )]
complaint," id. at 5; and was the subject of harassment,
id. Currently before the Court is the
defendant's motion for summary judgment on all of the
plaintiff's claims. Defendant's Motion for Summary
Judgment (" Def.'s Mot." ). Upon careful
consideration of the motion and the parties' memoranda of
in support of and opposition  to the motion, the Court
concludes that it must grant summary judgment for the
following facts are undisputed. The federal defendant
" is an independent and assisted living facility for
retired military veterans," Def.'s Facts ¶ 2,
with several of its facilities located in the District of
Columbia, id. ¶ 8. The plaintiff is a Nigerian-American
male, id. ¶ 3, who was employed by the defendant as a
Licensed Practical Nurse (" LPN" ) from September
24, 2001, to June 18, 2008, id. ¶ 2. Elizabeth
Weathington, the defendant's Director of Nursing, id.
¶ 6, personally interviewed and hired the plaintiff, id.
summer or early fall 2006, the plaintiff was transferred to a
the defendant's Long Term Care Unit, designated "
L4." See id. ¶ 16. The L4 unit " is referred
to as the 'skilled unit' because the serious
conditions of the patients on that unit impose greater
responsibility on the nurses who care for them."
Id. ¶ ¶ 10-11. It " houses
approximately 50 of the sickest patients who live at the
[Retirement Home], including many who have tracheotomies and
breathing tubes, complicated, chronic diseases such as
congestive heart failure and chronic obstructive pulmonary
disease (" COPD" ), and/or who are otherwise in
very serious condition." Id. ¶ 10.
The Plaintiff's March 2008 Suspension
On December 19, 2007, Ms. Weathington proposed that [the]
[p]laintiff be suspended for three [calendar] days."
Id. ¶ 42. The proposal was based on the
following allegations: (1) " Negligence in the
Performance of Your Duties" ; (2) " Failure to
Follow Supervisory Instructions Resulting in a Charge of
Absence Without Leave (AWOL)" ; and (3) " Absent
Without Leave (AWOL)." Def.'s Mot., Exhibit ("
Ex." ) Y (Proposal for Suspension (" Suspension
Proposal" )) at 1-2.
first allegation concerned two transgressions, one being the
plaintiff's failure " to document and administer
Morphine Sulphate to" a patient. Id. at 1. As
the defendant elaborates in its Statement of Material Facts,
on October 12, 2007, the plaintiff " was responsible for
admitting a hospice patient to L4 who had prostate cancer,
bone metastasis, who had received prostate surgery,
radiation[,] and chemotherapy." Def.'s Facts ¶
44. The patient arrived at " about noon," id., from
another unit with an order " that he be given morphine
to alleviate his pain every four hours," with his last
dose having been administered around 11:45 a.m. earlier that
day, id. ¶ 47. Upon arrival, the patient "
verbalized" that he was in pain, id. ¶ 45, however,
the plaintiff " did not give morphine to the hospice
patient for his pain at any time on October 12, 2007, did not
do anything to check on the hospice patient after 3:30
[p.m.], and did not sign and transcribe the morphine order
for the hospice patient until 8:00 [p.m.]," id. ¶
50. Furthermore, as the admitting nurse, the plaintiff was
responsible for preparing a pain assessment for the patient,
but he failed
to mark the human diagram to indicate where the hospice
patient was experiencing pain; to sign and date the
assessment; and to completely fill in the following
information: the frequency of the pain that the hospice
patient was experiencing; the pain that the hospice patient
experienced at various intervals and stages; circumstances or
activities that increased the hospice patient's pain;
times in the day when the hospice patient's pain was
worse; the hospice patient's current pain medication; the
strength and frequency of that pain medication; any side
effects that the hospice patient experienced with his pain
medication; whether or not the hospice patient had any
changes in his pain medication in the last 30 days; and
whether or not the hospice patient's current pain
medication was effective.
Id. ¶ 54. Finally, in the portion of the
patient's chart that is reviewed by the nurse on the
following shift to determine the status of the patient, the
plaintiff " did not write that the hospice patient had
been ordered morphine to alleviate his pain or that the
hospice patient had verbalized pain when [the] [p]laintiff
assessed him; instead [the] [p]laintiff wrote . . . that the
patient had experienced 'no distress of any
kind.'" Id. ¶ 56.
second transgression underlying the first allegation cited in
support of the charge of negligence in the performance of
the plaintiff's duties concerned his " fail[ure] to
transcribe a Doctor's order for wound treatment to the
Medication Administration Record ([" ]MAR[" ]) for
a [patient] thereby causing a delay in the medical treatment
for this [patient]." Def.'s Mot., Ex. Y (Suspension
Proposal) at 1. Specifically, the defendant contends that on
October 25, 2007, the plaintiff was responsible for
transcribing a patient's order for Duoderm--a wound
treatment medication--to that patient's October and
November 2007 MAR. Def.'s Facts ¶ 59. According to
the defendant, this was not done and " the patient did
not receive Duoderm treatments during the first week in
November and her wound condition worsened." Id.
suspension proposal noted that the plaintiff's job
responsibilities included, among others: " [c]arrying
out patient care independently and in compliance with
existing guidelines" ; " [m]edication
administration and hands on nursing care" ; and "
[i]dentifying patient problems and providing input to the
care plan." Def.'s Mot., Ex. Y (Suspension Proposal)
at 2. Thus, the proposal concluded that the plaintiff was
" clearly negligent in [his] duties," and that his
" failure to perform the duties of a LPN [was] both
irresponsible and unacceptable." Id. at 1.
remaining two allegations arose from the plaintiff's
absence from work on two days in November 2007. Specifically,
on November 6, 2007, the plaintiff called his office to
request sick leave for November 7, 2007. Def.'s Facts
¶ 63. He spoke with Evelyn Dizon, a supervisory nurse,
who instructed the plaintiff to seek approval from Ms.
Weathington or Aleece Henderson, the Assistant Director of
Nursing. Id. ¶ ¶ 7, 63. The plaintiff did
not receive approval from either Ms. Weathington or Ms.
Henderson, and failed to appear for his scheduled shifts on
November 7 and 8, 2007. Id. ¶ 64. Accordingly,
the plaintiff was charged with being absent without leave on
both days. Def.'s Mot., Ex. Y (Suspension Proposal) at 2.
considering the suspension proposal and the plaintiff's
response, Dr. Linda Rader, the defendant's Director of
Health Care Services and Ms. Weathington's direct
supervisor, Def.'s Facts ¶ ¶ 5-6, suspended the
plaintiff on March 4, 2008, for three calendar days, id.
¶ 43. The suspension began on March 11, 2008, and
concluded on March 13, 2008. Def.'s Mot., Ex. Z (Decision
on Proposal to Suspend).
The Plaintiff's Removal
March 21, 2008, Ms. Weathington proposed the plaintiff's
removal from federal service based upon a charge of "
Inattention to Duty." Def.'s Mot., Ex. OO (Proposal
to Remove from Federal Service (" Removal Proposal"
)) at 1. The charge was based upon two allegations, both
pertaining to the plaintiff's administration of a
Physician Order Form prescribing the medication Simethicone
to a patient for the treatment of intestinal gas. See id. at
1-2. According to the defendant, on December 1, 2007, the
plaintiff transcribed medical directives ordered for a
patient under the plaintiff's care and signed a
Physician's Order Form for that patient to receive
Simethicone. Id. The physician ordered that the
medication be administered four times daily, but the
plaintiff " failed to transcribe the frequency of the
dosage," which resulted in the patient receiving the
medication only once daily. Id. The plaintiff signed
the Physician Order Form as the " reviewing" nurse,
meaning that he " had reviewed the doctor's orders
and that [he] had made sure that the orders written on the
[Physician Order Form] and MAR were what the doctor had
ordered for the patient." Def.'s Facts ¶ 65.
According to the proposal for removal, this violated the
defendant's NeighborCare Policy, which
" states that [an employee] must transcribe the
physician's order to include all components, recording
exactly as the physician indicates." Def.'s Mot.,
Ex. OO (Removal Proposal) at 1-2.
December 5, 2007, the plaintiff signed the Physician Order
Form for the patient's receipt of Simethicone as the
" noting" nurse, " to verify that he had
correctly reviewed the Simethicone patient's medication
records to make sure that they were what the doctor had
ordered when [the] [p]laintiff had first reviewed the
patient's records on December 1, 2007." Def.'s
Facts ¶ 66. This violated the defendant's
NeighborCare Policy, which states:
At all relevant times, it was the policy at the [Retirement
Home] (and in the nursing industry) for one nurse to review
medication records to make sure that they were the same as
the doctor's orders and for a different nurse to later
verify (i.e. audit) the review conducted by the first nurse
in order to catch and prevent any errors that could endanger
a patient. [The] [p]laintiff did not follow that policy,
since he both reviewed (signed) and then verified his earlier
review of the . . . patient's records (countersigned),
rather than having a different nurse verify his first review
of those records. When the same nurse both reviews and then
verifies his earlier review of medication records (i.e.
countersigns), there is a greater likelihood that an error in
the records will not be picked up, and the safety risk to the
patient is increased.
Id. ¶ 70-71. Thus, the proposal for removal
concluded that the plaintiff violated the defendant's
NeighborCare Policy because he " signed in the
nurse's review section and countersigned the
Physician's Order Form in the nurses noted section."
Def.'s Mot., Ex. OO (Removal Proposal) at 2.
proposal for removal noted that this was the " third act
of misconduct" on the part of the plaintiff, and
therefore removal was " consistent" with the
defendant's Tables of Offenses and Penalties.
Id. On June 10, 2008, after reviewing the proposal
and the plaintiff's response, Dr. Rader issued a decision
removing the plaintiff from his position with the defendant.
Def.'s Mot., Ex. PP (June 10, 2008 Decision on Proposal
to Remove) at 2.
The Plaintiff's Administrative Appeal
his removal, the plaintiff filed a complaint with the Equal
Employment Opportunity Commission (" EEOC" ),
" alleging that his removal and the earlier suspension
in March 2008 were the result of unlawful
discrimination." Def.'s Facts ¶ 80. The EEOC
dismissed the claim for lack of jurisdiction and referred the
matter to the Merit Systems Protection Board ("
MSPB" ). Id. ¶ 81. An MSPB administrative
law judge held a hearing on March 9, 2011, id. ¶ 82, at
which " eight witnesses provided live testimony,
including [the] [p]laintiff, [the] [p]laintiff's first
and second-level supervisors, a doctor[,] and several nurses
who worked with [the] [p]laintiff ," id. ¶ 83.
Following the hearing, the administrative law judge issued a
decision affirming the defendant's decision to remove the
plaintiff from federal service, id. ¶ 94, concluding
that removal " was a reasonable penalty," according
to the factors set forth in Douglas v. Veterans
Administration, 5 M.S.P.B. 313, 5 M.S.P.R. 280 (April
19, 1981), Def.'s Facts ¶ 96. Moreover, the