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Shirrell v. St. Francis Med. Ctr.

United States Court of Appeals, Eighth Circuit

July 16, 2015

Rebecca Shirrell, Plaintiff - Appellant
St. Francis Medical Center; Lisa Miller, Defendants - Appellees

Submitted April 13, 2015

Appeal from United States District Court for the Eastern District of Missouri - Cape Girardeau.

For Rebecca Shirrell, Plaintiff - Appellant: Joshua Michael Pierson, David Eric Sowers, Ferne Paula Wolf, Sowers & Wolf, Saint Louis, MO.

For St. Francis Medical Center, Defendant - Appellee: Thomas O. McCarthy, Robert Dean Younger, Mcmahon & Berger, Saint Louis, MO.

Before RILEY, Chief Judge, LOKEN and SHEPHERD, Circuit Judges.


SHEPHERD, Circuit Judge.

Rebecca Shirrell, a nurse formerly employed by St. Francis Medical Center (St. Francis), brought this action alleging religious discrimination and retaliation in violation of Title VII and the Missouri Human Rights Act (MHRA) after St. Francis terminated her employment. Shirrell alleged discrimination based on her Jewish faith and retaliation based on complaints she made concerning a co-worker's derogatory remark about the Jewish faith. The district court[1] granted summary judgment in favor of St. Francis and Lisa Miller, the co-worker who made the derogatory remark, holding that Shirrell failed to make a prima facie showing of discrimination or retaliation under Title VII and failed to satisfy the requirements for her MHRA claims when the evidence showed St. Francis terminated Shirrell pursuant to hospital policy for an accumulation of disciplinary points. Shirrell appeals, and we affirm.


St. Francis first hired Shirrell, who is Jewish, as a clinical nurse in 1995. Shirrell resigned her position in July 2000. In 2001, St. Francis re-hired Shirrell, where she continued to work until her 2012 discharge. In 2007, Shirrell moved to part-time status, primarily working weekends. Shirrell worked the weekend shift with Miller for a number of years. In late February or early March 2012, Miller was having a discussion about the purchase of a camper with another co-worker in Shirrell's presence. Miller, who is not Jewish, commented to the co-worker that she was going to try to " Jew down" or had " Jewed down" the seller of the camper to a lower price. Prior to this comment, Shirrell had not heard Miller or any other co-workers make derogatory remarks about the Jewish faith and did not have any issues in her working relationship with her co-workers.

Shirrell informed her supervisor, Tammy Hahn-Brown, who served as the Nurse Manager of Orthopedics, about Miller's comment in a phone call the following day. Hahn-Brown told Gerry Salter, St. Francis's Director of Orthopedic Services, about the incident and told Salter that she would speak with Miller about the incident and communicate with the staff regarding St. Francis's expectations of its employees. On March 5, 2012, Hahn-Brown posted a copy of St. Francis's harassment policy in the nurses' room and sent an email to nurses and nursing assistants reminding them to be careful with their words and actions around patients, families, and co-workers at all times.

Roughly six weeks after Miller's comment, Shirrell informed Hahn-Brown that her work environment had become hostile, alleging that co-workers gave her the cold shoulder, that Miller asked Shirrell why she had complained to Hahn-Brown, and that Miller accused Shirrell of trying to get Miller in trouble. Shirrell admits, however, that she had very little interaction with co-workers during a typical weekend shift and that she never filed a harassment complaint or internal grievance during her employment with St. Francis. In late March or early April 2012, Hahn-Brown announced she was taking a different position within St. Francis, vacating her supervisory role over Miller and Shirrell. On April 20, 2012, St. Francis promoted Miller to assume Hahn-Brown's vacated position. Miller worked in her new position as Nurse Manager of Orthopedics under Hahn-Brown's supervision until late May 2012.

In late May or early June 2012, Miller brought two patient complaints concerning Shirrell to Salter's attention. Salter told Miller to investigate the complaints. Patients or family members of patients made these complaints on May 31, 2012, and June 2, 2012, alleging that Shirrell had been rude to a patient and failed to appear in a patient's room when summoned. Miller reported the results of her investigation, which labeled the complaints as unprofessional conduct, to Salter. Pursuant to St. Francis's Progressive Corrective Action Policy, which is designed to address disciplinary concerns by assessing points for various infractions and mandating disciplinary action based on accumulation of points, Salter assessed Shirrell a suspension, worth seven points.

By late May 2012, Shirrell had also accumulated five unscheduled absences within a 12-month period. The fourth and fifth absences occurred on May 24, 2012, and May 26-27, 2012. Pursuant to St. Francis's Absenteeism and Tardiness Policy[2] and the Corrective Action Policy, Salter gave Shirrell a written warning and assessed her three disciplinary points. In late May or early June 2012, St. Francis also issued two separate oral warnings to Shirrell for incidents on May 17, 2012, and May 31, 2012, described as reluctance, disinterest, and/or neglect in carrying out responsibilities. The Corrective Action Policy valued each oral warning at one disciplinary point. Shirrell does not dispute either warning, one issued for failure to document waste of medication and one for neglecting to write a sedation score of a patient.

During a meeting held on June 6, 2012, Salter informed Shirrell that St. Francis was terminating her employment. Before making the decision to discharge Shirrell, Salter consulted with St. Francis's Human Resources (HR) department both in person and via phone to verify that HR was in agreement with Salter's assessment of Shirrell's disciplinary points. The decision to discharge Shirrell occurred during a meeting between Salter, Miller, and HR employee Teri Krietzer, with Salter making the final decision to terminate Shirrell. At the June 6th meeting, Salter informed Shirrell that St. Francis was terminating her employment pursuant to the Corrective Action Policy, which mandates the discharge of an employee who accumulates 12 disciplinary points in a 12-month period. The disciplinary action form Salter prepared in connection with this meeting[3] indicated that Shirrell had accumulated 12 disciplinary points in a 12-month period, including 7 disciplinary points for patient and/or family complaints, 3 disciplinary points for 5 unscheduled absences in a 12-month period, and 2 disciplinary points for reluctance, disinterest, and/or neglect in carrying out her duties. The disciplinary action form also included a March 1, 2012 patient complaint and a notation that patient and family complaints had previously been addressed with Shirrell ...

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