#### James ARMSTRONG, Plaintiff, v. Thomas K. TURNAGE, Administrator, Veterans Administration, Defendant.

No. 87-1744C(6).

United States District Court, E.D. Missouri, E.D.

July 21, 1988.

Burton Newman, St. Louis, Mo., for plaintiff.

Wesley D. Wedemeyer, Asst. U.S. Atty., St. Louis, Mo., for defendant.

MEMORANDUM OPINION

GUNN, District Judge.

Plaintiff is a staff pharmacist employed by the Veterans Administration at the Veterans Administration Medical Center at St. Louis, Missouri. He has filed this action pursuant to Section 717(c) of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, *et seq.,*as amended, alleging that racial discrimination was the cause of his being downgraded in pay. The following findings of fact and conclusions of law are entered pursuant to Rule 52(a), Fed.R.Civ. P.

*Findings of Fact*

Plaintiff is black and except for the period which resulted in his downgrade in pay has been an exemplary employee of the Veterans Administration Medical Center in St. Louis and had performed his duties as a staff pharmacist without any unsatisfactory performance ratings.

In 1981, the Pharmacy Service developed performance requirements for its staff pharmacists. These requirements covered several functions, the most important of which relate to drug dispensing. Pharmacists were required to verify the accuracy of medications and labeling as ordered or prescribed by physicians.

A rating period, usually twelve months in length, was established during which each pharmacist’s actions would be reviewed for prescription and labeling errors. Under the performance requirements, no more than eight incorrect medications and/or labelings would be permitted to be filled and/or dispensed to patients or to hospital wards during the rating period. Under the policy established at the St. Louis Division, no error was charged against a pharmacist unless the erroneously filled or labeled *840medication was actually dispensed, i.e., actually left the pharmacy.

Upon committing his or her eighth dispensing error, the pharmacist would be so advised by the supervisor and be given a particularized listing of the errors. The pharmacist was also cautioned to use care in the filling and dispensing of medications and warned that another error within the rating period would result in adverse action being taken.

Plaintiffs rating period for this case commenced May 1, 1982. On December 20, 19821 plaintiff was mailed the following notice by his supervisor advising that he had made eight errors to that date:

> 1. A recent review of the performance standards indicates that you are at the “met” level of performance for the standard pertaining to accuracy in the Key Responsibility, Drug Dispensing, identified as a critical element.

> 2. The standard is: “Verifies medication and labeling for accuracy against physician’s orders or prescriptions. No more than 8 incorrect medications and/or labels are filled and/or dispensed to patients and/or wards (Far Exceed — 0).”

> 3. To date, the following incorrect medications/labels have been dispensed or OK’d for dispensing by you:

> 6-18-82 drug precribed: Valium lOmg

> drug dispensed: Valium 5mg

> 8-20-82 drug prescribed: Aminophylline lGm

> drug labeled: Aminophylline 100mg

> 8-20-82 drug prescribed: Cefazolin lGm

> drug dispensed: Cefoxitin lGm

> 8-30-82 drug prescribed: Acetaminophen with Codeine 15mg

> drug dispensed: Acetaminophen with Codeine 30mg

> 9-1-82 drug prescribed: Restoril 15mg

> drug dispensed: Dalmane 15mg

> 9-8-82 drug prescribed: Sinemet 25/100

> drug dispensed: Sinemet 25/250

> 9-24-82 drug prepacked: Isosorbide 5mg PO

> drug labeled: Isosorbide 5mg SL

> 10-29-82 drug prescribed: Aminophylline 500mg in normal saline

> drug dispensed: Aminophylline 500mg in D5W

> 4. Please make sure that all work is thoroughly checked for accuracy before dispensing. When working in the inpatient area, please carefully check the work of subordinates before dispensing or OK’ing for dispensing.

> 5. As we discussed previously, during your rotation in inpatient I will assign assistance to you to help check IV requests during period of peak workload.

> 6. For your information, I am attaching a copy of a “Summary of Suggestions for Minimizing Dispensing Errors,” as published in the 1980-1981 edition of the Pharmacy Law Digest.

> 7. If you have any suggestions or comments, please feel free to discuss them with me. I would like to remind you that failure to meet a key responsibility identified as a critical element could result in adverse actions. At this point, you have not failed the standard, but one more medication/labeling error could change the situation.

> (signed)

> Thomas L. Meyer

> Supervisory Pharmacist

On January 6, 1983 discovery was made that the June 18, 1982 error was not attributable to plaintiff, and he was advised of that fact.

On January 26, plaintiff was charged with another or eighth error and advised of that fact and told that further error would result in his failure to meet the requisite standards.

On February 10, a ninth error was committed by plaintiff and he was told that his performance in drug dispensing was unacceptable. He was further advised that he would be given to May 31 to demonstrate acceptable performance by not making further errors. He was also told that failure to demonstrate acceptable performance could result in reassignment, demotion or separation from service.

On March 23, 1983, plaintiff made his tenth error, and a fellow pharmacist was *841assigned to work with him to co-sign prescriptions.

On April 9, 1983 plaintiff made his eleventh error and was reduced in grade from GS 11, step 8 to GS 9, step 8.

The eleven errors are as follows:

No. Date Error

1. 8-5-82 Acetaminophen with Codeine 30 mg dispensed for Acetaminophen with Codeine 15mg

2. 8-19-82 Aminophylline 1 Gram labeled and dispensed as Aminophylline lOOmg

3. 8-19-82 Cefoxitin 1 Gram dispensed for Cefazolin 1 Gram

4. 8-27-82 Dalmane 15mg dispensed for Restoril 15 mg

5. 9-8-82 Sinemet 26/2so dispensed for Sinemet 25/ioo

6. 9-20-82 Isosorbide oral 5mg prepacks labeled as Isosorbide sublingual 5mg

7. 10-29-82 Aminophylline 500 mg in 5% dextrose in water dispensed for Aminophylline 500mg in Normal Saline

8. 1-25-83 Heparin 25,000 units in *5%*dextrose in water dispensed for Heparin 25,000 units in Normal Saline

9. 2-10-83 Prolixin decanoate 25mg/ml dispensed for Prolixin Enanthate 25mg/ml

10. 3-23-83 Diltiazem 60mg dispensed for Diltiazem 30mg

11. 4-9-83 Gentamicin 60mg dispensed for Gentamicin 80mg

Plaintiff contends that item No. 6-the isosorbide error — should not be charged, as it did not leave the pharmacy. As previously noted, under established policy, items not dispensed, i.e., not leaving the pharmacy, were not charged as errors. The Court finds from the credible evidence that the isosorbide was in fact dispensed to the hospital ward and did constitute a dispensing error attributable to plaintiff.

Plaintiff also contends that item No. 9-the prolixin decanoate which was dispensed — is essentially the same as prolixin enanthate and should not be considered as an error. The Court finds from the credible evidence that there is a substantial difference between the two medications, and that it was error to have dispensed prolixin decanoate instead of prolixin enanthate.

Thus, the credible evidence clearly supports the finding that plaintiff committed eleven chargeable dispensing errors within his rating period of May 1, 1982 through May 31, 1983, three of them occurring after being advised of having met the eight error limitation before consideration of adverse action.

The evidence is manifest that adverse action against plaintiff was justified due to unacceptable work performance under the regional standards. Plaintiff accepts the fact that the number of errors charged to him within the particular time frame were sufficient to warrant the reduction in pay.

At the time of trial, plaintiff had again reached GS-11 status, but only as to step 5. It is stipulated by the parties that his loss of pay is $19,931.

Plaintiffs theory of discrimination stems from his contention that John Morían, a white fellow employee, was treated with greater favor. Plaintiff argues that during the same rating period of May 1, 1982 through May 31, 1983, Morían committed the same number of dispensing errors as plaintiff-eleven-but no adverse action resulted; hence, the discrimination.

On January 6, 1983, Morían received notice that he had committed his eighth error during the rating period and received the same warning as plaintiff to review his work carefully. On March 8, 1983, Morían *842received his warning notice of having committed his ninth error and given to May 31, 1983 — the same as plaintiff — in which to demonstrate acceptable performance.

The Court' finds from the credible evidence that under procedures followed and under the proper method for computing errors for the May 1, 1982-May 31, 1983 period, Morían was not subject to adverse disciplinary action. One of Morian’s errors was not a dispensing error, in that the prescription did not leave the pharmacy. Another error was not discovered until Morían was in his warning period, though the error had in fact occurred during the rating period. Existing policy did not allow for such an error to be charged against Morían during the warning period after the ninth error. The final error — a failure to report a known error — which plaintiff suggests should have been charged to Morían, was not known to the rating supervisor during the rating and warning period. Neither should it have been attributed to Morían.

The Court therefore finds that there were no additional errors which legitimately could have been charged to Morían after he entered the ninth error warning period. Thus, no legitimate basis existed for an adverse action against Morían. Certainly, the failure to discipline him was not discrimination or for discriminatory reasons.

*Conclusions of Law*

The Court has jurisdiction of this matter pursuant to § 717(c) of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, *et seq.,*as amended.

The following from *Texas Department of Community Affairs v. Burdine,*450 U.S. 248, 252-53, 101 S.Ct. 1089, 1093-94, 67 L.Ed.2d 207 (1981) controls this case.

> First, the plaintiff has the burden of proving by the preponderance of the evidence a prima facie case of discrimination. Second, if the plaintiff succeeds in proving the prima facie case, the burden shifts to the defendant to “articulate some legitimate, nondiscriminatory reason for [his action]____” Third, should the defendant carry this burden, the plaintiff must then have an opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for discrimination____ The ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff.

The Court will assume that plaintiff has presented a prima facie case of discrimination. He is a member of a protected class, he was demoted, based on violation of accepted department regulations and procedures. He had eleven dispensing errors— two above the allowable limit. A white fellow employee was not disciplined for having ten errors within the same period. Having established his prima facie case, defendant employer may rebut it simply by showing a legitimate, nondiscriminatory basis for disparate treatment. *Watson v. Forth Worth Bank & Trust,*— U.S. -, 108 S.Ct. 2777, 101 L.Ed.2d 827 (1988). If the defendant can carry this burden, plaintiff then has the opportunity to prove by a preponderance of the evidence that the legitimate reasons offered for the discipline were but a cover for a discriminatory motive. *Gilreath v. Butler Mfg. Co.,*750 F.2d 701, 702 (8th Cir.1984); *Johnson v. Bunny Bread Co.,*646 F.2d 1250, 1253 (8th Cir. 1981).

In this case, there is no question that basis existed for plaintiffs demotion. He was properly charged with eleven dispensing errors, more than enough under established procedures and policies. The critical issue in this case, however, is whether defendant's disparate treatment of plaintiff's white fellow employees were a mere pretext to cover a discriminatory motive. *Gilreath v. Butler Mfg. Co.,*750 F.2d at 702. Proof of a discriminatory motive is critical to plaintiff’s case. *Johnson v. Bunny Bread Co.,*646 F.2d at 1254. The Court finds that no discriminatory motive exists in the different treatment by defendant of plaintiff and Morían.

Plaintiff had violated prescription dispensing procedures and was legitimately disciplined. So, also, was Morían guilty of dispensing procedures — not as many as *843plaintiff — but enough that he too should have been disciplined. But by a quirk in procedures, one or two of Morian’s errors were committed during the rating period and were not discovered until he was in his warning period. Under proper procedures, these errors could not be charged to Morían while in his warning period — and they should not have been.

Though in this instance the procedures applied did result in a disparate treatment between Morían and plaintiff, there is absolutely no showing that the procedures were racially motivated. Plaintiff must therefore fail in his claim, not having met his burden of demonstrating that the distinction in treatment was racially motivated. *United Postal Service v. Aikens,*460 U.S. 711, 103 S.Ct. 1478, 75 L.Ed.2d 403 (1983); *Gilreath v. Butler Mfg. Co, supra.*

Judgment for defendant.

1

. The letter is dated January 20, 1982, but the Court finds that date to be erroneous. The correct date for the letter as it was prepared is December 20, 1982.