Muller, Judge Graham C.

English

DigitalCommons@ILR

Cornell University ILR School 
DigitalCommons@ILR 
ADAAA Case Repository Labor and Employment Law Program 
10-11-2012 
Allison Scott, Plaintiff, vs. The Presbyterian Hospital, Defendant. 
Judge Graham C. Muller 
Follow this and additional works at: https://digitalcommons.ilr.cornell.edu/adaaa 
Thank you for downloading this resource, provided by the ILR School's Labor and Employment 
Law Program. Please help support our student research fellowship program with a gift to the 
Legal Repositories! 
This Article is brought to you for free and open access by the Labor and Employment Law Program at 
DigitalCommons@ILR. It has been accepted for inclusion in ADAAA Case Repository by an authorized 
administrator of DigitalCommons@ILR. For more information, please contact catherwood-dig@cornell.edu. 
If you have a disability and are having trouble accessing information on this website or need materials in an 
alternate format, contact web-accessibility@cornell.edu for assistance. 
Allison Scott, Plaintiff, vs. The Presbyterian Hospital, Defendant. 
Keywords 
Allison Scott, The Presbyterian Hospital, 3:11CV383, Summary Judgment, Disparate Treatment, 
Termination, Drug Addiction, Learning Disability/ADHD, Working, Healthcare, Employment Law, ADAAA 
This article is available at DigitalCommons@ILR: https://digitalcommons.ilr.cornell.edu/adaaa/228 
IN THE UNITED STATES DISTRICT COURT 
FOR THE WESTERN DISTRICT OF NORTH CAROLINA 
CHARLOTTE DIVISION 
3:11CV383
ALLISON SCOTT, )
)
Plaintiff, )
)
vs. ) ORDER
)
THE PRESBYTERIAN HOSPITAL, )
)
Defendant. )
____________________________________)
This matter is before the court upon Defendant’s Motion for Summary Judgment. The 
motion has been fully briefed and is ripe for disposition.
FACTUAL BACKGROUND
Allison Scott (“Scott”), a former employee of the Defendant alleges that she was 
wrongfully terminated because of her disability and/or because she was regarded as having a 
disability, in violation of the Americans with Disabilities Act of 1990 and the Americans with 
Disabilities Act Amendments Act of 2008.
Scott is a registered nurse who currently suffers from lupus and attention deficit disorder, 
among other medical conditions. In the 1990’s she worked at Carolinas Medical Center 
(“CMC”) and developed an addition to morphine. In 1999, she was caught diverting narcotics, 
terminated by CMC and charged with embezzlement of a controlled substance. Scott entered a 
voluntary drug treatment program run by the North Carolina Board of Nursing (“BON”) called 
the Alternative Program (“AP”). This program allows nurses struggling with addiction issues to 
retain their license, avoid public discipline and address the addiction issues under strict but non­
1
punitive conditions. After several months of successful drug treatment, the BON allowed Scott to 
find work as a nurse on a restricted license. It limited her ability to dispense medicines or work in 
certain roles and environments. Scott also entered deferred prosecution as part of this process and a 
year later had the felony charges dismissed and expunged. To successfully finish the AP, Scott had to 
remain actively employed under BON supervision for three complete years. Any job she held during 
that time had to be pre-approved by the BON, and at every job interview, Plaintiff was required to 
disclose her drug abuse history.
Defendant hired Scott in February of 2000 in a call center position where she performed 
patient “triage” by telephone. At the time she was hired, Defendant was aware of Scott’s license 
restrictions. Plaintiff disclosed to Defendant her drug abuse history and the fact she was in the AP 
when applying and interviewing for the job. A BON representative participated in the job interview 
to make sure Plaintiff made those disclosures.
When the call center where she was working was closed, Scott applied for and was 
offered a staff nurse position in the Presbyterian psychiatric unit. Her immediate supervisor, 
Kim Kerns, was aware of her license restrictions when she was hired. Eighteen months into her 
new position, Scott completed her three year AP. In early 2008, Scott began suffering from 
increasing medical issues caused by lupus, spinal stenosis and depression. She requested and 
was granted intermittent leave under the Family and Medical Leave Act (“FMLA”).
Scott worked as a staff nurse in the psychiatric unit without incident from September of 
2001 until December of 2009. On December 26, 2009, an anonymous caller to Presbyterians’ 
Alertline, a telephone hotline available to all Presbyterian employees, reported that Scott had 
been seen diverting patient medications on several occasions. Scott was immediately suspended 
pending an investigation into the allegation and asked to submit to a drug test. Kerns ordered a
2
90 day report showing all narcotics administered by the Plaintiff. The report revealed more than 
fifty charting errors by the Plaintiff. Kerns sent an email on December 30, 2009 to eight of 
Defendant’s managers, including her two bosses, Larry Elmore and Bruce Melosh. Her email 
and the attached report shared the same name, “Allison Scott-Diversion Tracking” and the body 
of the message stated “there are obviously issues.”
On January 5, 2010, Scott met with Kerns to discuss the charting errors. At Kerns’ 
request, Scott submitted a written statement regarding the charting errors. Scott denied diverting 
any medications. Scott did explain that she had been having difficulty focusing and completing 
tasks and had been under a physician’s care. She explained that her medical issues had impacted 
her ability to function at work.
The results of Scott’s drug test came back negative on January 11, 2010. However, on 
January 15, Kerns terminated Scott’s employment. Kerns told Scott that Paula Vincent, 
Defendant’s head of nursing services, had made the final decision to terminate her. Scott claims 
that Kerns stated that Vincent made the decision to terminate her because she believed that Scott 
had relapsed into drug use. Defendant takes the position that Scott was terminated because of 
her charting errors. However, Scott has produced Defendant’s disciplinary records which 
provide some evidence that she was treated differently from other employees who were 
disciplined in some manner over drug use or issues regarding the administration of drugs. 
DISCUSSION
Summary judgment is appropriate when, viewing the facts in the light most favorable to 
the non-moving party, there is no genuine issue of any material fact and the movant is entitled to 
judgment as a matter of law. Fed. R. Civ. P. 56(e); Celotex Corp. v. Catrett, 477 U.S. 317, 322 
(1986). Summary judgment requires a determination of the sufficiency of the evidence, not a
3
weighing of the evidence. Anderson v. Liberty Lobby, 477 U.S. 242 (1986).
Plaintiff brings her claims pursuant to the Americans with Disabilities Act of 1990 
(“ADA”), 42 U.S.C. § 12101 et seq. which provides that an employer shall not discriminate in 
any “terms, conditions and privileges of employment” against an employee with a disability 
because of the employee’s disability. 42 U.S.C. § 12112(a). In 2008, Congress made 
substantial changes to the ADA through the Americans with Disabilities Act Amendments Act 
of 2008 (“AD AAA”), which became effective on January 1, 2009, and therefore apply to this 
case. The ADA defines “disability” as “(A) a physical or mental impairment that substantially 
limits one or more major life activities of [an individual]; (B) a record of such impairment; or 
(C) being regarded as having such an impairment. . . .” 42 U.S.C. § 12102(1). An employee 
meets the “regarded as” prong if she establishes that she was subjected to a prohibited action 
“because of an actual or perceived . . . impairment whether or not such impairment limits or is 
perceived to limit a major life activity.” 42 U.S.C. § 12102(3)(A). The “regarded as” prong 
includes persons with a past history of drug abuse. See Nielson v. Moroni Feed Co., 162 F.3d 
604, 610 (10th Cir. 1998); 42 U.S.C. § 12114(b).
An employee may prove that she was discriminated against because of an actual or 
perceived impairment either by direct evidence or by the burden-shifting framework of 
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Scott asserts that she is relying on 
direct evidence of discriminatory intent. Direct evidence of a stated purpose to discriminate will 
overcome a motion for summary judgment. See EEOC v. Clay Printing Co., 955 F.2d 936, 941 
(4th Cir. 1991). Direct evidence consists of “comments or statements that both reflect directly 
the alleged discriminatory attitude and that bear directly on the contested employment decision.” 
Hill v. Lockheed Martin Logistics Management, Inc., 354 F.3d 277, 284-85 (4th Cir. 2004).
4
Scott’s evidence that Kems stated Vincent believed Scott had relapsed into drug addiction
and should be terminated is direct evidence of discriminatory motive sufficient to overcome a 
motion for summary judgment. Contrary to Defendant’s argument, such statement appears to be 
admissible as an admission by a party opponent. See Fed. R. Evid. 801(d)(2)(C)-(D). 
Accordingly, Defendant’s Motion for Summary Judgment must be denied.
IT IS THEREFORE ORDERED that Defendant’s Motion for Summary Judgment is 
hereby DENIED.
Signed: October 11, 2012
Graham C. Mullen 
United States District Judge
5


Allison Scott, Plaintiff, vs. The Presbyterian Hospital, Defendant.

https://digitalcommons.ilr.cornell.edu/cgi/viewcontent.cgi?article=1001&amp;context=adaaa

Allison Scott, Plaintiff, vs. The Presbyterian Hospital, Defendant.

Abstract

Similar works

Full text

Available Versions

DigitalCommons@ILR