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Rios v. Nexion Health at Cherry Creek

United States District Court, D. Colorado

August 21, 2019

YOLANDA RIOS, Plaintiff,


          Marcia S. Krieger Senior United States District Judge.

         THIS MATTER comes before the Court pursuant to the Defendant's (“Nexion”) Motion for Summary Judgment (# 33), Ms. Rios' response (# 36), and Nexion's reply (# 40).


         The Court summarizes the pertinent facts here and elaborates as necessary as part of its analysis.

         In June 2015, Ms. Rios was hired to work as a Registered Nurse at Nexion, a nursing home. Her supervisor was Michelle Deegan. Ms. Rios initially worked on a flexible PRN (i.e. “as needed”) schedule, but Ms. Deegan asked if she would consider moving to a full-time position as a Desk Nurse in the Rapid Recovery Unit. Ms. Rios agreed and began working a full-time schedule of three, twelve-hour shifts per week. The Desk Nurse job was later reconfigured slightly, and Ms. Rios was then assigned to four ten-hour shifts per week.

         In or about May 2016, Ms. Rios learned that she was pregnant. In August or September 2016, she contacted Nexion's Human Resources Department to inquire about maternity leave options.

         In October 2016, Nexion decided that low patient counts in the Rapid Recovery Unit did not justify the need for a Desk Nurse position and that position was eliminated. Ms. Deegan informed Ms. Rios that she was being transferred to work as a Cart Nurse in another unit, and that her schedule would change to five eight-hour shifts per week. Ms. Rios preferred working in the Rapid Recovery Unit because of its slightly faster pace of work and asked if she could stay there in the Cart Nurse position (which remained), but Ms. Deegan stated that she wanted Ms. Rios to work on a unit that still had a Desk Nurse who could cover “in case [Ms. Rios] had to call off because of [her] pregnancy.” Ms. Deegan also mentioned to Ms. Rios that, when she returned from any maternity leave, she would probably want to return to the PRN schedule to minimize childcare needs and that her new unit assignment would make it easier for her to work a PRN schedule.

         A few weeks later, Ms. Rios sent a written complaint to Nexion's Administrator, contending that her reassignment from a full-time schedule to a PRN schedule[1] constituted discrimination against her because of her pregnancy. The letter made a number of additional allegations, including: (i) that Ms. Rios had been told by a co-worker that Ms. Deegan was “freaking out about you being pregnant and who we are going to replace you with”; (ii) that the Desk Nurse position in the Rapid Recovery Unit had not actually been discontinued and that there was still a Desk Nurse there working the same shift Ms. Rios had been on; (iii) in the weeks following her reassignment, she had been “flexed” into other schedules that resulted in her working only 15-20 hours per week instead of full-time; and (iv) that Ms. Deegan had previously bragged to Ms. Rios about having switched certain employees' hours and assignments for the purpose of getting the employees to quit.

         Nexion investigated Ms. Rios' complaint and determined that there was no basis to believe that Ms. Rios had been discriminated against because of her pregnancy, but Nexion agreed to repay Ms. Rios for certain hours that she had missed and to reassign her to the Cart Nurse position in the Rapid Recovery Unit, returning her to the 12-hour shifts she preferred.

         On November 14, 2016, Ms. Rios was involved in an incident in which a staff member reported having difficulty taking a patient's oxygen reading. According to Nexion, Ms. Rios did not react promptly, waiting three hours before checking on the patient's condition and, although the reading showed that the patient's oxygen level was dangerously low, Ms. Rios waited another three hours before summoning the treating physician. Ms. Rios disputes these facts, contending that she responded to the patient immediately, was able to take an oxygen reading within 15-20 minutes thereafter, increased the patient's oxygen delivery, and immediately notified the treating physician when the patient's oxygen level had stabilized. It is undisputed that the patient was transferred to the hospital for further care due to her decreased oxygen levels. On November 21, 2018, Nexion issued Ms. Rios a “Final Written Warning” based on this event, charging her with failure to follow facility protocols.

         On November 28, 2018, Ms. Rios was involved in another incident involving nursing students were training at Nexion. The precise contours of this event are somewhat unclear in the record, but it appears that the supervising instructor and some students were in one location administering flu shots while a second group of nursing students were assisting a patient in Ms. Rios' unit with showering. At some point, the students assisting with the shower had a question about whether or how to change one of the patient's dressings and conveyed that question to Ms. Rios, who was in the doctor's lounge having lunch. Rather than get up to address the situation, Ms. Rios conveyed an answer back to the students through a nursing assistant. The students had additional questions and again, rather than tending to the situation personally, Ms. Rios simply conveyed instructions back to the students through the assistant. Ultimately, the students changed the dressing incorrectly. There is also some indication that Ms. Rios signed a treatment record stating that a dressing on another patient had been changed by nursing students when the dressing had not been changed.

         Ms. Rios does not dispute most of the facts discussed above (although she states that she only recalls being asked one question by the nursing students ___ where to locate certain supplies and she directed him to the treatment cart). But Ms. Rios contends that she had no responsibility for the nursing students because the nursing students' supervisor was responsible for all of their activities. When the students' supervisor reported to Ms. Rios that the students had completed all of the necessary treatments, she “took his word on it” because he is a fellow nurse and it is typical for nurses to rely on nurse-to-nurse communications when signing off on the treatment records.

         Ms. Rios was suspended pending an investigation into these incidents. The investigation was performed by Donna Boudreax, a nurse employed by Nexion. Ms. Boudreax concluded that Ms. Rios had falsified documentation and that the proper punishment for that offense was termination. On December 14, 2016, Nexion terminated Ms. Rios' employment.

         Ms. Rios commenced this action, asserting four claims for relief: (i) sex/pregnancy discrimination in violation of Title VII of the Civil Rights Act; (ii) retaliation in violation of Title VII; (iii) pregnancy discrimination in violation of C.R.S. § 24-34-402.3, relating to the forced adjustment of her schedule in or about October 2016; and (iv) a hybrid claim ...

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