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Akosile v. Armed Forces Ret. Home

United States District Court, D. Columbia

November 2, 2015

MICHAEL AKOSILE, Plaintiff,
v.
ARMED FORCES RETIREMENT HOME, Defendant

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          MICHAEL AKOSILE, Plaintiff, Pro se, Washington, DC.

         For ARMED FORCES RETIREMENT HOME, Defendant: Jeremy S. Simon, LEAD ATTORNEY, U.S. ATTORNEY'S OFFICE FOR THE DISTRICT OF COLUMBIA, Washington, DC.

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         MEMORANDUM OPINION

         REGGIE B. WALTON, United States District Judge.

         Plaintiff 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.[1] 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 law submitted

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in support of and opposition [2] to the motion, the Court concludes that it must grant summary judgment for the defendant.[3]

         I. BACKGROUND

         The following facts are undisputed.[4] 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. ¶ 15.

         In late summer or early fall 2006, the plaintiff was transferred to a position in

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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.

         A. 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.

         The 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.

         The second transgression underlying the first allegation cited in support of the charge of negligence in the performance of

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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. ¶ 62.

         The 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.

         The 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.

         After 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).

         B. The Plaintiff's Removal

         On 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

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" 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.

         On 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.

         The 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.

         C. The Plaintiff's Administrative Appeal

         Following 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 ΒΆ 96. Moreover, the ...


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