A nurse at Memorial Health System has lost another round in her case against a heart doctor and Memorial, in which she alleges having been struck by the doctor twice and also hit with a piece of tissue during a heart surgery.
In a decision dated Wednesday, the U.S. Court of Appeals 10th Circuit sided with the state district court, which dismissed her sexual harassment and civil rights claims on the city's motion.
Sonja Morris started at Memorial in 2000 and was assigned to the "heart team" in 2007. She contends that while working with Dr. Bryan Mahan, the doctor harassed her several times and adds that he treated female employees differently than male employees, according to court documents.
In 2008, Mahan hit Morris on the head twice on different occasions, Morris' lawsuit alleged. In August 2008, while assisting Mahan in a surgery, he surgically removed pericardium tissue from the patient and threw it in Morris' direction. Though Mahan claimed he meant to throw it on the floor, it hit the nurse's leg, the lawsuit claims. He then joked about it.
Memorial CEO Larry McEvoy, who's a doctor, and Memorial's chief of staff Dr. Daniel Balch, told heart team members that Mahan wouldn't be in the operating room until further notice, court documents say, and that members would participate in a "team building" program. Morris and Mahan went through the training together and worked together for about three months. In December 2008, Morris submitted her notice of claim to Memorial and was reassigned a week later. In June 2009, Morris sued, alleging gender-based harassment and abusive and hostile work environment.
In its decision, the court said:
While Dr. Mahan's conduct (construing the facts in the light most favorable to Ms. Morris) was unquestionably juvenile, unprofessional, and perhaps independently tortious, viewed in context, we cannot conclude from this record that it objectively altered the terms and conditions of Ms. Morris's employment.
Indeed, Ms. Morris's own response sheds some light on this objective inquiry—regarding how a reasonable person in this surgical setting would perceive the pericardium incident. And, although we need not definitively opine on the matter, it also suggests that, in fact, she did not subjectively view the incident as severe. Ms. Morris did not deny that, as a surgical nurse, this was not the first time she had blood on her scrubs when not wearing protective gear, although she insisted that this was not a common event. Furthermore, Ms. Morris did not report the incident for several days, asserting that she "didn't want to interrupt" her supervisor's holiday weekend, Aplt. App. at 135, and she continued to work with Dr. Mahan for roughly three months after the incident.
Mahan still works at Memorial. Morris also still works at Memorial, as a clinical nurse in surgery.