Wallace v. Methodist Hospital System (85 F. Supp. 2d 699, 2000)

MEMORANDUM AND OPINION

ROSENTHAL, District Judge.

In this pregnancy discrimination case, plaintiff Veronica A. Wallace sued her former employer, The Methodist Hospital System (“Methodist”), for wrongful termination, alleging violations of section 701 (k) of Title VII of the Civil Rights Act of 1964 as amended, 42 U.S.C. § 2000e(k), and section 5.01 of the Texas Commission on Human Rights Act, Tex. LaboR Code Ann. § 21.051 (Vernon’s 1996). (Docket Entry No. 1). Methodist terminated Wallace’s employment as a nurse in the Medical Intensive Care Unit in December 1994, near the end of Wallace’s third pregnancy in three years. Wallace alleged that Methodist terminated her employment because of her repeated pregnancies. Methodist responded that it discharged Wallace because she violated hospital policy by carrying out a medical procedure that required a doctor’s order without obtaining such an order and by falsifying a medical record to show that a doctor’s order had been given. A first trial ended in a hung jury and mistrial. The jury in the second trial found in favor of Wallace, awarding her $70,000 in compensatory damages and $437,500 in punitive damages. Methodist has moved for judgment as a matter of law (“JMOL”) under Rule 50(b) of the Federal Rules of Civil Procedure. (Docket Entry No. 117).

Methodist and Wallace filed a number of briefs addressing the post-verdict issues. (Docket Entry Nos. 119, 127, 130, 131, 132, 133). Based on a careful consideration of the motion, the briefs, the parties’ submissions, the trial record, and the applicable law, this court GRANTS Methodist’s motion for judgment as a matter of law. The reasons are set out below.

I. Background: The Evidence at Trial

Wallace began working at Methodist in March 1986 as a blood collector. (Tr. 188). She later moved to the neurophysiology department, working there as an EEG technician until 1991. (Tr. 183-185). She entered nursing school in 1990 and became a student professional nurse in the intensive care unit in 1991. (Tr. 187-188, 192). Wallace received her Bachelor of Science in Nursing in April 1992. (Tr. 193).

Wallace accepted a job as a registered nurse (“RN”) in Methodist’s medical intensive care unit (“MICU”) on October 1, 1992. (Tr. 204; P.Ex. 2). Wallace was pregnant when she began working in the MICU. Nurse Manager Donna Hahus supervised the approximately thirty-two nurses in the MICU. Tory Schmitz was Wallace’s direct supervisor.

Wallace took a three month leave after the birth of her first child, from February 23, 1993 to June 5, 1993. (Tr. 1049; D. Ex. 15). Wallace received full pay and benefits throughout her maternity leave, using accumulated sick time, holiday time, and vacation time. (Tr. 219, 1049). When Wallace returned to work in June 1993, she used options Methodist made available to change her shift time from day to evening and began working a compressed-time schedule of three twelve-hour shifts, primarily on weekends. (Tr. 221-22, 246-47, 561-62).

Wallace testified that Hahus had become “less Mendly” when Wallace returned to work after her first maternity leave, which Wallace asserted as evidence of Hahus’s discriminatory animus. Wallace also testified that Hahus and Methodist allowed Wallace to work the hours and shifts she wanted when she returned from leave in June 1993. Wallace testified that, in her March 1994 evaluation, Schmitz and Hahus made statements that evidence discrimination. Wallace testified that Schmitz stated that Wallace was difficult to categorize because of her pregnancy-related absences, (Tr. 237), and that Hahus said she needed to “choose between nursing and family.” (Tr. 227, 235-37). Schmitz acknowledged that Wallace’s absences made it difficult to apply certain objective evaluative criteria to her. (Tr. 1003). Hahus denied making the statement attributed to her, instead testifying that she and Schmitz had some concerns about Wallace’s recent performance that they raised in the meeting with Wallace. Wallace’s evaluation score dropped 10 points from a year earlier, when she was also pregnant. However, Hahus and Schmitz testified that they gave Wallace satisfactory evaluations. There is no suggestion in the record that Wallace received a poor evaluation, that she missed any pay raise, or that her performance evaluations were a factor in the discharge decision.

The trial testimony was also undisputed that during Wallace’s three-month maternity leave for the birth of her second child, from March 2,1994 to June 5,1994, Hahus helped Wallace maximize the amount of leave time for which she could be paid. During this maternity leave, Wallace had less accumulated time to draw upon than she had had during her first leave. Although a substantial part of the second maternity leave was unpaid, Hahus classified Wallace’s maternity leave as excused absences rather than as unpaid leave, which allowed Wallace to continue accruing benefits, including vacation time, during her leave. (Tr. 1050). With Hahus’s help, Wallace was able to increase the paid portion of her maternity leave. (Tr. 1050; D. Ex. 17).

Wallace returned to work on June 5, 1994. She learned that she was pregnant a short time later. (Tr. 248). When Wallace returned to work, she again used the compressed-time scheduling option to work the hours she chose — three 12-hour shifts each week instead of five 8-hour shifts. (Tr. 246, 626). Wallace received merit raises during this period. (Tr. 246). She continued to work full-time, on the schedule she selected, until her discharge.

Methodist fired Wallace on December 21, 1994, (D.Ex. 22), following an incident that occurred two days earlier. On December 19, 1994, Wallace performed a procedure on a patient without a physician’s order to do so, and wrote in the patient’s chart that a doctor had given Wallace a verbal order to do the procedure. Wallace had no such order when she made the entry and did the procedure. Wallace did not dispute that the incident occurred. However, she claimed that Methodist used the incident as a pretext for discrimination, in fact firing her because Donna Ha-hus “resented [her] being pregnant.” (Tr. 252). At trial, Wallace presented evidence that she claimed demonstrated disparate discipline, that other nurses had similarly performed procedures without obtaining doctor’s orders in advance, but with no adverse consequences. Wallace also pointed to the negative comments by Hahus and Schmitz in March 1994, and to comments in August 1994 and shortly after the discharge as “direct evidence” of discriminatory motive. (Docket Entry No. 119, p. 7).

Methodist contended that the decision to discharge Wallace had nothing to do with her pregnancies. Methodist told Wallace that she had been terminated because, on December 19, 1994, she “falsif[ied] a hospital record by writing a verbal order for a specific procedure that required a physician’s order under hospital policy [] and then implemented] the procedure without a physician’s knowledge or consent.” (Docket Entry No. 117, p. 2). Methodist gave the same reason for Wallace’s discharge at trial and in this motion.

Much of the relevant evidence as to the December 19, 1994 incident is undisputed. Wallace worked the 7:00 a.m. to 7:00 p.m. shift in the MICU that day. A patient of Dr. Kenneth Scott Lloyd, identified in the record as “Mr. B,” was in the unit recovering from surgery on his aorta. (Tr. 718). Dr. Lloyd is an internal medicine and pulmonary disease specialist. (Tr. 715). By Dr. Lloyd’s order, a Salem sump — a tube threaded through the nose to the stomach' — had previously been inserted into Mr. B. The Salem sump permitted the doctors and nurses to deliver medicine to Mr. B, to check the amount of fluids in his stomach, and to decompress his stomach if gastric residuals built up. (Tr. 721-22, 851-53). If gastric residuals built up in the stomach and were not promptly suctioned out, Mr. B risked aspiration pneumonia, which he had previously contracted. (Tr. 720).

At 11:00 a.m. on December 19, Dr. Albert Barroso, a gastroenterologist assisting Dr. Lloyd, issued a written order to begin tube feeding Mr. B. (Tr. 872; D. Ex. 1, tab 32). The written order said nothing about removing the Salem sump, which can be used as a feeding tube, (Tr. 272), or about inserting a different tube. At 4:00 p.m., without checking with any doctor, Wallace removed the Salem sump from Mr. B and replaced it with a small bore feeding tube. (Tr. 273-74). In the patient’s record, Wallace wrote a “verbal order,” a written statement that she had received an oral order from a doctor, to “place feeding tube and follow-up with X-ray.”' Wallace wrote the order to show that Dr. Nicola Hanania, a medical fellow in the MICU, had given the verbal order. (Tr. 273-74; D. Ex. 1, tab 32). Wallace signed her name next to the chart entry. (D. Ex. 1, tab 32).

At trial, Wallace admitted that Dr. Bar-roso, in his written order, had only ordered her to “begin tube feeding,” not to replace the Salem sump with a small bore feeding tube. (Tr. 263-64). Wallace admitted that it was possible to use a Salem sump for feeding. (Tr. 272). Wallace admitted that, contrary to the written entry she made on Mr. B’s chart, Dr. Hanania had not given her any verbal order to place a small bore feeding tube in the patient. (Tr. 388). Wallace also acknowledged that removing the Salem sump was not an emergency procedure, that there was time to ask a doctor before she proceeded, and that there were doctors readily available for consultation before she removed the Salem sump and replaced it with a small bore tube. (Tr. 379-83).

Wallace’s testimony was clear:

Q: All right. And it says on [the counseling record] that, “On December 19th, made false entry in medical record. VW performed a procedure on a patient without a physician’s order, then wrote as a verbal order. No verbal order had been given.” Now, the factual part of that is correct, is it not, that you did perform a procedure on the patient without a physicians’s order; is that correct?

A: Correct.

Q: All right. And then you wrote a verbal order?

A: Correct.

Q: And that no verbal order had been given, that’s all correct, is it not?

A: Yes, that’s correct.

Q: Okay. Now, did you sign that document?

A: Yes, I did.

(Tr. 388).

' When Dr. Lloyd made his rounds in the late afternoon or evening of December 19, he noticed that the Salem sump had been removed from Mr. B and had been replaced with a small bore feeding tube. (Tr. 722). Dr. Lloyd looked at the patient’s chart and saw the written entry, signed by Veronica Wallace, stating that Dr. Hanania had given a verbal order to remove the Salem sump and replace it with the small bore feeding tube. Dr. Lloyd quickly found Dr. Hanania and asked why he had given nurse Wallace the order to change the patient’s tube. (Tr. 745-46). Dr. Hanania explained that he had given no such order. (Tr. 807). Dr. Lloyd then went to talk to Wallace.

Dr. Lloyd and Wallace gave conflicting testimony about this conversation. Dr. Lloyd testified that he asked Wallace why she had removed the Salem sump and inserted the feeding tube without a doctor’s order and why she had written a false order on the chart. (Tr. 746-47). Dr. Lloyd testified that Wallace said that “[s]he thought the patient would do better with a smaller feeding tube instead of the nasogastric tube [Salem sump].” (Tr. 747). Dr. Lloyd testified that he told Wallace that “if she writes an order that the doctor did not give her, then that is falsification of a medical record, a lie.” (Id.). Dr. Lloyd also said that he told her that “it’s practicing medicine without a license to write down that you’re going to put in tubes and do X-rays” because a nurse “can’t just do an X-ray and put a tube in the patient without a physician’s order.” (Id.). Wallace testified that when Dr. Lloyd confronted her, he did not question the- order after he confirmed that the placement of the tube was satisfactory, except to blame the fellows, such as Dr. Hanania, for writing in “his” charts. (Tr. 277-79). Mr. B suffered no harm from the tube change.

At trial, Wallace explained that she had planned to have Dr. Hanania cosign the order before her shift ended at 7:00 p.m. (Tr. 265, 405, 462). However, Dr. Lloyd discovered that the tube had been changed before Wallace had spoken to Dr. Hanania. (Tr. 277-79). Based on this explanation, Wallace denied that her conduct was properly characterized as making a false entry in the patient’s chart; even if the chart entry was false when Wallace wrote it, she intended to make it true a short time later by having a doctor authorize the procedure after the fact. Before Wallace finished her shift and talked to Dr. Hanania, Dr. Lloyd discovered that Wallace had performed the procedure without a doctor’s order and had written a verbal order in the chart without obtaining such an order. (Tr. 181, 251, 405).

The testimony was undisputed that regardless of what Dr. Lloyd told Wallace on the evening of December 19, 1994, he talked to Tory Schmitz, the MICU clinical supervisor and Wallace’s direct supervisor, about the incident the next day. (Tr. 752, 1017). Dr. Lloyd told Schmitz that Wallace “had written an order that was not given, and that she had placed the tube without an order. Ordered an X-ray without an order [sic], ... and that this was practicing medicine without a license.” (Tr. 753). Schmitz spoke to Dr. Barroso and Dr. Hanania, both of whom denied having given Wallace an order to change the tube. (Tr. 1018).

Later on December 20, Schmitz told Ha-hus about the incident. (Tr. 1018). Hahus asked Schmitz to telephone Wallace, who had called in sick for work that day. (Id.). Schmitz telephoned Wallace to discuss the incident. (Tr. 1019). Schmitz testified that Wallace admitted that she had removed the Salem sump and that she had not received an order to do so. (Tr. 1019). Wallace told Schmitz that she would not take such a step again. (Tr. 1020). Schmitz relayed Wallace’s statements to Hahus, including that Wallace “admitted that she had written the verbal order, and that she didn’t have a verbal order.” (Tr. 63B).

Hahus consulted Marcella Louis, a nursing director who chaired the Methodist peer review committee, and Paula Hansen, the nursing director and Hahus’s supervisor, about the proper response to Wallace’s conduct. (Tr. 633-34). The record does not disclose the substance of Hahus’s conversation with Louis. Hansen, who did not know that Wallace was pregnant, agreed with Hahus’s opinion that termination would be justified if a nurse had written an entry in a patient chart showing a verbal order from a doctor for a procedure that required a doctor’s order,without receiving such an order, and had implemented the procedure without such an order. (Tr. 1076-77). After talking to Louis and Hansen, Hahus recommended that Wallace be terminated for violating Methodist’s written policies by making a false entry into a patient chart and performing a medical procedure that required a doctor’s order without receiving such an order. (Tr. 635).

On December 21, 1994, Hahus telephoned Wallace to tell her that she had been discharged. (Tr. 635-36). On the same date, Wallace received a Due Process Corrective Counseling Record stating that Methodist was terminating Wallace’s employment because she had committed a “Class I Violation: Unprofessional Conduct detrimental to patient care.” (D.Ex. 22). The counseling record read: “On December 19, 1994, [Wallace] made false entry in medical record. [Wallace] performed a procedure on a patient without a physician’s order then wrote as a verbal order. No verbal order had been given.” (Id.).

Under Methodist’s Official Due Process Procedures, a Class I violation is “a serious violation of System standards under circumstances, that, after thorough consideration of the facts, may justify termination for a first violation without regard to the employee’s length of service or prior record of conduct.” (D. Ex. 4, Official Procedure No. P001, Revision No. 5, p. 2). The procedures provide a nonexhaustive list of 16 types of Class I violations. The list includes: (1) “Willful action or illegal, unprofessional or unethical conduct detrimental to patient care ... that result [sic] in neglect, abuse, or exploitation of any patient;” and (2) “Deliberate omission of information, falsification of employee/employer records, or falsifying information to management regarding their availability for work, job duties, or performance.” (D. Ex. 4, Official Procedure No. P001, Appendix A, p. 1). Methodist asserts that Wallace violated both of these provisions by falsifying a -verbal order for a medical procedure and undertaking the procedure without a doctor’s authorization. The failure to obtain a physician’s order for the insertion or removal of a nasogastric feeding tube, which includes a Salem sump, is a violation of Methodist’s official written policies. (D. Ex. 4, Policy No. D-707, Revision No. 3, p. 1).

Wallace filed a grievance seeking reversal of her termination and attended an informal grievance meeting with Hahus, Schmitz, Hansen, and Wagner. (Tr. 636, 1076). At that meeting, Wallace argued that other MICU nurses had similarly performed procedures without doctor’s orders and had not been terminated. Methodist upheld the termination and denied Wallace’s request to “proceed to formal conflict resolution.” (Tr. 636; D. Ex. 25).

Methodist presented undisputed evidence that of the thirty-two nurses in MICU working under Donna Hahus’s supervision, (Tr. 1000), ninety percent are female, over fifty percent are married, and that from three to seven give birth each year. (Tr. 1046-47). Most of the nurses who give birth take maternity leave and return to work. (Tr. 1023). Wallace did not dispute that in the MICU, Methodist employed a number of other nurses who became pregnant, took maternity leaves and returned to work, without adverse employment consequence, while working under Hahus’s supervision. Wallace asserted that her case was different because she became pregnant three times in three years.

Wallace brought this lawsuit on January 14, 1997, asserting that Methodist had discriminated against her because of her pregnancies, in violation of Title VII and the Texas Labor Code. This case was first tried in September 1998, but ended in a mistrial after the jury was unable to reach a verdict. After a second trial, the jury found in favor of Wallace, awarding her $70,000 in compensatory damages and $437,500 in punitive damages. Methodist filed a post-verdict motion renewing its motion for JMOL at the close of evidence, arguing that Wallace did not. submit sufficient evidence to support the jury’s finding of liability. Methodist argues in the alternative that if this court finds sufficient evidence to support the liability determination, it should partially remit the compensatory damages award and fully remit the punitive damages award.

The court considers Methodist's motion below.

II. The Applicable Legal Standards

A. The Standard for a Motion for Judgment As a Matter of Law

"A motion for judgment as a matter of law ... in an action tried by jury is a challenge to the legal sufficiency of the evidence supporting the jury’s verdict." Scott v. University of Mississippi, 148 F.3d 493, 503 (5th Cir.1998) (quoting Harrington v. Harris, 118 F.3d 359, 367 (5th Cir.1997)) (alteration in original). Under Rule 50 of the Federal Rules of Civil Procedure, a district court "may grant a judgment as a matter of law if after a party has been fully heard by the jury on an issue, `there is no legally sufficient evidentiary basis for a reasonable jury to have found for that party with respect to that issue.’" Aetna Cas. & Sur. Co. v. Pendleton Detectives of Miss., Inc., 182 F.3d 376, 377-78 (5th Cir.1999) (quoting FED. R. CIV. P. 50). "[A] court should grant a motion for judgment as a matter of law `not only when the non-movant presents no evidence, but also when there is not a sufficient conflict of substantial evidence to create a jury question.’" Id. at 504 (quoting Travis v. Board of Regents of the Univ. of Tex. Sys., 122 F.3d 259, 263 (5th Cir.1997), cert. denied, 522 U.S. 1148, 118 S.Ct. 1166, 140 L.Ed.2d 176 (1998)). "Substantial evidence is defined as `evidence of such quality and weight that reasonable and fair-minded men in the exercise of impartial judgment might reach different conclusions.’" Id. (quoting Rhodes v. Guiberson Oil Tools, 75 F.3d 989, 993 (5th Cir.1996) (en banc)).

In conducting this review, the district court "accord[s] great deference to the jury’s verdict." Baltazor v. Holmes, 162 F.3d 368, 373 (5th Cir.1998). The court "view[s] the entire record in the light most favorable to the non-movant, drawing all factual inferences in favor of the non-moving party, and `leaving credibility determinations, the weighing of evidence, and the drawing of legitimate inferences from the facts to the jury.’" Aetna Cas. & Surety Co. v. Pendleton Detectives of Miss., Inc., 182 F.3d 376, 378 (5th Cir.1999) (quoting Conkling v. Turner, 18 F.3d 1285, 1300 (5th Cir.1994)). A court may grant a motion for JMOL "only when the facts and reasonable inferences are such that a reasonable juror could not reach a contrary verdict." Baltazor, 162 F.3d at 373; see also Texas Farm Bureau v. United States, 53 F.3d 120, 123 (5th Cir.1995).

A district court may review a party’s post-verdict motion for judgment as a matter of law only if the party first moved for JMOL at the conclusion of all the evidence in the case. See Allied Bank-West v. Stein, 996 F.2d 111, 114-15 (5th Cir.1993); see also United States ex rel. Wallace v. Flintco Inc., 143 F.3d 955, 960 (5th Cir.1998). A motion for JMOL at the close of the evidence is a prerequisite to the district court’s review of a post-verdict motion for JMOL, being "virtually jurisdictional." Stein, 996 F.2d at 114-15 (quoting Perricone v. Kansas City Southern Railway Company, 704 F.2d 1376, 1380 (5th Cir.1983)).

“It is well-settled in this circuit that a motion for judgment as a matter of law filed post verdict cannot assert a ground that was not included in the motion for judgment as a matter of law made at the close of the evidence.” Morante v. American Gen. Fin. Ctr., 157 F.3d 1006, 1010 (5th Cir.1998). “This requirement both enables the trial court to re-examine the sufficiency of evidence as a matter of law if the jury returns a verdict contrary to the movant and alerts the opposing party to insufficiencies in time to cure defects in proof.” Delta-X Corp. v. Baker Hughes Prod. Tools, Inc., 984 F.2d 410, 413 (Fed. Cir.1993); see also MacArthur v. University of Texas Health Ctr., 45 F.3d 890, 896 (5th Cir.1995).

B. The Title VII standard

Under Title VII, it is unlawful for any employer “to discharge any individual ... because of such individual’s race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(l). The Pregnancy Discrimination Act of 1978 amended Title VII to provide that pregnancy discrimination was a form of sex discrimination. See Pub.L. 95-555, 92 Stat.2076 (codified at 42 U.S.C. § 2000e(k)). The Act provides in pertinent part:

the terms “because of sex” or “on the basis of sex” include, but are not limited to, because of or on the basis of pregnancy, childbirth, or related medical conditions; and women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes ... as other persons not so affected but similar in their ability or inability to work ....

42 U.S.C. § 2000e(k).

The Fifth Circuit extensively analyzed the Pregnancy Discrimination Act in Urbano v. Continental Airlines, Inc., 138 F.3d 204 (5th Cir.1998), cert. denied, 525 U.S. 1000, 119 S.Ct. 509, 142 L.Ed.2d 422 (1998). In that case, an airline ticket agent requested a light duty assignment due to pregnancy-related back pains and lifting restrictions. Continental Airlines, her employer, denied her request. The airline’s policy provided for mandatory light duty transfers only for employees who suffered an occupational injury. The Fifth Circuit found that the plaintiff was denied a light-duty assignment under Continental’s policy because her back troubles were not work related. The plaintiff failed to establish discrimination under Title VII because she could not prove she was treated differently from any other employee who suffered from non-occupational injuries: "Continental treated Urbano in exactly the same manner as it would have treated any other worker who was injured off the job .... Under [the Pregnancy Discrimination Act], an employer is [only] obliged to ignore a woman’s pregnancy and `to treat the employee as well as it would have if she were not pregnant.’" Id. at 206. "Continental was entitled to deny Urbano a light-duty assignment as long as it `treated similarly affected but nonpregnant employees’ the same." Id. (quoting Troupe v. May Dep’t Stores, 20 F.3d 734, 738 (7th Cir.1994)).

Pregnancy discrimination claims are analyzed under "the disparate treatment analysis applied in other Title VII discrimination cases." LaFleur v. Westridge Consultants, Inc., 844 F.Supp. 318, 324 (E.D.Tex.1994). In general, a Title VII plaintiff can prove discrimination in two ways, either by direct evidence or by the indirect or inferential method of proof. See Mooney v. Aramco Services Co., 54 F.3d 1207, 1217 (5th Cir.1995). If the plaintiff produces sufficient direct evidence to show that unlawful discrimination was a motivating factor in the challenged employment action, the burden of proof shifts to the defendant employer to show by a preponderance of the evidence that it would have made the same decision even if it had not allowed discrimination to play such a role. Price Waterhouse v. Hopkins, 490 U.S. 228, 244-45, 109 S.Ct. 1775, 104 L.Ed.2d 268 (1989).

"A plaintiff who can offer sufficient direct evidence of intentional discrimination should prevail, just as in any other civil case where a plaintiff meets his burden." Nichols v. Loral Vought Sys. Corp., 81 F.3d 38, 40 (5th Cir.1996). "Direct evidence is evidence which, if believed, would prove the existence of a fact (i.e., unlawful discrimination) without any inferences or presumptions." Nichols, 81 F.3d at 40; see also Mooney, 54 F.3d at 1217; Brown v. East Miss. Elec. Power Ass’n, 989 F.2d 858, 861 (5th Cir.1993).

“[B]ecause direct evidence of discrimination is rare, the Supremé Court has devised an evidentiary procedure that allocates the burden of production and establishes an orderly presentation of proof in discrimination cases [when direct evidence is lacking].” Nichols, 81 F.3d at 40; see also Bodenheimer v. PPG Indus., Inc., 5 F.3d 955, 957 (5th Cir.1993). A pregnancy discrimination case brought under Title VII is subject to this burden-shifting approach, developed in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), and Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). See Urbano v. Continental Airlines, Inc., 138 F.3d 204, 206 (5th Cir.1998); Scott, 148 F.3d at 504 (ADEA case); Travis, 122 F.3d at 263 (Title VII case). "When a case has been fully tried on the merits, however, `[a court] need not parse the evidence into discrete segments corresponding to’ the different stages of the McDonnell Douglas-Burdine frame work." Scott, 148 F.3d at 504 (quoting Travis, 122 F.3d at 263). Instead, a court reviewing the verdict in a Title VII case after a trial on the merits "engage[s] in `traditional sufficiency-of-the-evidence analysis’ in determining whether reasonable jurors could find discriminatory treatment." Travis, 122 F.3d at 263 (quoting Rhodes, 75 F.3d at 993).

The verdict in favor of Wallace will survive Methodist’s motion for judgment as a matter of law “if the evidence taken as a whole (1) creates a fact issue as to whether [Methodist’s] stated reasons [were] what actually motivated [Methodist] and (2) creates a reasonable inference that [Wallace’s pregnancies were] a determinative factor in [her termination].” Scott, 148 F.3d at 504 (quoting Rhodes, 75 F.3d at 994).

The question before this court is whether, based on the evidence presented at trial, taken as a whole, a reasonable jury could find that pregnancy discrimination was a determinative factor in Methodist’s decision to terminate Wallace’s employment on December 21,1996.

III. Wallace’s Assertions of “Direct” Evidence of Discrimination

Wallace argues that the record contains sufficient direct evidence to show that pregnancy discrimination was a motivating factor in Methodist’s decision to terminate her employment. Direct evidence is defined in the Fifth Circuit as "evidence which, if believed, proves the fact [of intentional discrimination] without inference or presumption." Portis v. First Nat’l Bank, 34 F.3d 325, 328-29 (5th Cir.1994) (quoting Brown v. East Miss. Elec. Power Ass’n, 989 F.2d 858, 861 (5th Cir.1993)) (alteration in original). "In the context of Title VII, direct evidence includes any statement or written document showing discriminatory motive on its face." Portis, 34 F.3d at 329. The plaintiff must show that "the employer actually relied on [the forbidden factor] in making its decision." Mooney v. Aramco Servs. Co., 54 F.3d 1207, 1218 (5th Cir.1995) (quoting Langley v. Jackson State Univ., 14 F.3d 1070, 1075 (5th Cir.1994)) (alteration in original).

The term “direct evidence” was introduced to Title VII analysis in Justice O’Connor’s concurrence in Price Waterhouse v. Hopkins, 490 U.S. 228, 109 S.Ct. 1775, 104 L.Ed.2d 268 (1989). In that case, Justice O’Connor concluded that the plaintiff had presented direct evidence of sex discrimination sufficient to “require the defendant to show that its decision [to place her on hold as to her partner status] would have been justified by wholly legitimate concerns.” Id. at 273, 109 S.Ct. 1775, 104 L.Ed.2d 268. The plaintiff presented evidence that “a number of the evaluations [of her] submitted by partners in the [accounting] firm overtly referred to her failure to conform to certain gender stereotypes as a factor militating against her election to the partnership” and that partner evaluations “were given ‘great weight’ by the decision makers at [the accounting firm].” Id. at 272, 109 S.Ct. 1775. Additionally, “the partner responsible for informing Hopkins of the factors which caused her candidacy to be placed on hold, indicated that her ‘professional’ problems would be solved if she would Valk more femininely, talk more femininely, wear make-up, have her hair styled, and wear jewelry.’” Id. In the concurrence, Justice O’Connor describes several pieces of evidence that would not show that discrimination had formed a substantial factor in the employment decision, including “stray remarks in the workplace,” statements by nondecisionmakers, and statements by decisionmakers unrelated to the decisional process. Id. at 277, 109 S.Ct. 1775. In contrast to such evidence, Justice O’Connor placed “direct evidence that decisionmakers placed substantial negative reliance on an illegitimate criterion in reaching their decision.” Id.

In Wright v. Southland Corp., 187 F.3d 1287 (11th Cir.1999), the court engaged in a thorough and scholarly analysis of the varying definitions of “direct evidence” of employment discrimination. That analysis led the Southland court to conclude that in the Eleventh Circuit, courts quoted, but did not in fact apply, the “dictionary definition” of direct evidence. According to the dictionary definition, which the Fifth Circuit frequently quotes in Title VII cases, “direct” means “non-inferential” or “non-circumstantial.” This definition seemingly limits “direct evidence” to evidence of a “remark that can only be interpreted as an admission of improper discrimination in the relevant employment decision.” Southland, 187 F.3d at 1294.

In Thomas v. National Football League Players Association, 131 F.3d 198 (D.C.Cir.1997), another case examining the meaning of “direct evidence,” the court included the Fifth Circuit among several that limit the term to non-inferential or non-circumstantial evidence. The Thomas court rejected this limited approach, concluding that “the decision to shift the burden [under Price Waterhouse] properly rests upon the strength of the plaintiffs evidence of discrimination, not the contingent methods by which that evidence is adduced.” Id. at 204. The Eleventh Circuit reached a similar conclusion in South-land after collecting the Title VII cases in that circuit involving “direct evidence.” The Southland court concluded that the courts applied “direct evidence” more broadly than the dictionary definition they quoted would allow. The court settled on a “preponderance definition” as reflecting the courts’ actual application of the term: “ ‘direct evidence’ [is] evidence from which a reasonable trier of fact could find, more probably than not, a causal link between an adverse employment action and a protected personal characteristic.” South-land, 187 F.3d at 1298. So defined, direct evidence includes any statement by the decisionmaker, reflecting a discriminatory attitude, that ties the discriminatory attitude to the relevant employment decision. Id. at 1294. Such evidence, not limited to non-inferential “direct” confessions of discrimination, is generally “sufficient evidence for a trier of fact to conclude more probably than not that the employment decision was based on improper discrimination.” Id.

A review of the cases suggests that the Fifth Circuit’s own application of the term “direct evidence” is not as easily labeled as the D.C. Circuit suggested in Thomas. In Brown v. East Mississippi Electric Power Association, 989 F.2d 858 (5th Cir.1993), the court characterized as “direct evidence” of discrimination the decisionmaker’s frequent, routine use of racial slurs to refer to the plaintiff specifically and to persons in the protected class in general. The court held that the “routine use of racial slurs constitutes direct evidence that racial animus was a motivating factor in the contested disciplinary decisions.” Id. at 860. However, the Fifth Circuit cases often quote the narrow “dictionary” definítion to limit “direct evidence” to evidence that requires no inference or presumption to prove discrimination. See, e.g., Sreeram v. Louisiana State Univ. Med. Center-Shreveport, 188 F.3d 314, 321 (5th Cir. 1999); Nichols, 81 F.3d at 40; Portis, 34 F.3d at 328-29.

The Fifth Circuit cases frequently involve evidence of remarks by a decisionmaker that are offered as "indirect" proof of discriminatory animus or motive. The Fifth Circuit cases analyze the probative value of such remarks as evidence of discrimination according to the extent to which the remarks satisfy the following criteria: the remarks (1) were related to the protected class of persons of which the plaintiff is a member; (2) were proximate in time to the employment decision at issue; (3) were made by an individual with authority over the employment decision at issue; and (4) were related to the employment decision at issue. See Krystek v. University of Southern Mississippi 164 F.3d 251, 256 (5th Cir.1999); Brown v. CSC Logic, Inc., 82 F.3d 651, 655-56 (5th Cir.1996). Evidence of workplace remarks that does not amount to "direct" evidence may nonetheless have probative value in showing that discrimination motivated the challenged employment decision. However, a workplace remark may be so deficient under one or more of the listed criteria — for example, remote in time from the challenged action or not made by a relevant decisionmaker — as to be a stray remark wholly lacking in probative value even as "indirect" evidence of discrimination. See, e.g., Krystek, 164 F.3d at 256; Boyd v. State Farm Ins. Cos., 158 F.3d 326, 329-30 (5th Cir.1998), cert. denied, — U.S. —, 119 S.Ct. 1357, 143 L.Ed.2d 518 (1999); Waggoner v. City of Garland, 987 F.2d 1160, 1166 (5th Cir. 1993).

Against the backdrop of these cases, this court assesses what Wallace classifies as “direct” evidence of discrimination, to examine whether it was sufficient for a reasonable jury to find that pregnancy discrimination caused her discharge. Wallace identifies the following testimony in the trial record as direct evidence of discrimination, (Docket Entry No. 119, pp. 7-8):

1) Wallace testified that after she returned from her first maternity leave, Hahus treated her differently. “[Before Wallace’s maternity leave, Hahus] made conversation [,] she greeted when we would pass in the morning[; after the leave,] she no longer did that.” (Tr. 221).

2) Wallace testified that during her second annual evaluation, in late February or early March 1994, just before she began her second maternity leave, Schmitz said that she “did not know to categorize [Wallace] because [Wallace] was gone three months last year, and ... would be gone three months again this year.” (Tr. 237).

3) Wallace testified that during this same evaluation, Hahus told her that she “needed to choose between nursing and family.” (Tr. 227, 235-37).

4) Wallace testified that after she returned from her first maternity leave in June 1993, she worked a compressed time schedule that Methodist made available to its employees— three 12-hour shifts each week instead of five 8-hour shifts. In the summer of 1994, when she returned from her second maternity leave, Ha-hus told her that she was “costing the hospital money because [she] was receiving full benefits and not giving 80 hour pay periods.” (Tr. 247).

5) Wallace testified that on August 8, 1994, Hahus asked, “How stupid could you be?” after Wallace followed a doctor’s written order without seeking clarification, when the order admittedly made no sense as written. (Tr. 249-250).

6) Pat Gaskin, a nurse in MICU, testified that in either late December 1994 or early January 1995, she overheard Shawn Forney, a clinical dietician at Methodist, ask Schmitz why Wallace had been fired. According to Gaskin, Schmitz responded, “First of all, she’s been pregnant three times in the last three years.” (Tr. 672).

Wallace’s testimony that Hahus became “less friendly” after Wallace returned from her first maternity leave in June 1993 does not tend to show that Wallace’s pregnancies were a motivating factor in Methodist’s decision to terminate her in December 1994. Wallace did not dispute Methodist’s evidence that nurses working under Ha-hus’s supervision in the MICU frequently took maternity leave and returned to work without problem. Wallace argued that her situation was different because she was the only nurse pregnant three times in less than three years. Wallace did not dispute Methodist’s evidence that Hahus accommodated Wallace’s scheduling needs after her first and second pregnancies and helped her maximize her paid leave time during her second pregnancy. Wallace argued that her third pregnancy triggered Hahus’s resentment. However, under this theory of the case, Wallace’s testimony that Hahus displayed a discriminatory animus toward her as soon as Wallace returned from her first maternity leave is of marginal relevance. Even this relevance is undercut by Methodist’s undisputed evidence that Hahus treated Wallace favorably in terms of scheduling and benefits even after the alleged change in demeanor, and did not discriminate against other pregnant nurses in the MICU.

Wallace’s testimony as to Hahus’s change in attitude was conclusory and subjective. It was not “direct” evidence under any definition and was not competent “indirect” evidence to support the jury’s verdict. See Grizzle v. Travelers Health Network, Inc., 14 F.3d 261, 268 (5th Cir. 1994) (holding that plaintiffs “own self-serving generalized testimony stating her subjective belief that discrimination occurred” was not sufficient to support a jury verdict in her favor in an ADEA case); cf. also Swanson v. General Servs. Admin., 110 F.3d 1180, 1186 (5th Cir.1997) (stating that “a broad, generalized statement that black employees were ‘watched’ more closely that whites is incompetent to establish a pattern of [race] discrimination” under Title VII).

This court concludes that Wallace’s generalized, subjective testimony about a change in Hahus’s demeanor in June 1993 is not probative of discrimination.

Wallace had her second annual performance evaluation in late February or early March 1994, very shortly before she began her second maternity leave. In the performance evaluation, Hahus and Schmitz rated Wallace’s performance as satisfactory but expressed some concerns. Wallace points to two comments made during the performance evaluation as direct evidence of discriminatory animus based on her pregnancies: Schmitz’s statement that “she didn’t know how to categorize [Wallace] because [Wallace] was gone three months last year, and ... would be gone three months again this year,” and Ha-hus’s statement that Wallace needed to choose between nursing and family.

Schmitz testified that it was “possible” that she made the statement about classifying Wallace. Schmitz explained the statement as follows:

On the performance appraisal at the time — actually, there was an additional part of the evaluation that was a method of awarding points toward promotion. And so, the performance appraisal counted for part of that, but there were other factors that were figured in towards promotion.

One of the factors was experience, and there was a cutoff between two years of experience and less than two years. And Veronica had started two years before, but had some absences. And I just was thinking, well, I’m not sure since leave of absence is not counted toward benefit accumulation that I wasn’t sure how to count it in this specific thing. It turns out she got credit for the two years, and it wasn’t a factor. But that’s the only thing that I can think of that that comment would refer to.

(Tr. 1003). Schmitz’s statement did not refer expressly to Wallace’s pregnancies, but to the absences resulting from her pregnancies. Schmitz did not express a discriminatory attitude towards Wallace’s pregnancies. Schmitz did not make the decision to terminate Wallace. The statement at issue was made ten months before the termination. The statement is not direct or “indirect” evidence of pregnancy discrimination; it is not probative of discriminatory animus.

Wallace testified that during the same performance appraisal meeting, Ha-hus told her that she “needed to choose between work and family.” (Tr. 227, 235-37). This statement differs from those discussed above. Although Hahus’s statement does not refer explicitly to Wallace’s pregnancies, it can be interpreted to show discriminatory animus because “it invoked [a] widely understood stereotype[ ].” Sheehan v. Donlen Corp., 173 F.3d 1039, 1045 (7th Cir.1999). The statement suggested that Hahus, the principal decision-maker in Wallace’s termination, believed that Wallace’s family commitments were impairing her work performance. See Brown v. CSC Logic, Inc., 82 F.3d 651, 656-657 (5th Cir.1996). However, Hahus made this remark nearly ten months before Wallace’s termination. It is undisputed that in this performance evaluation, Ha-hus rated Wallace’s work as satisfactory and Wallace received a raise. It is also undisputed that after this remark, Hahus helped Wallace maximize the amount of paid time she would receive during her second maternity leave. The record does not disclose a connection between Hahus’s statement in the performance evaluation and her later decision to terminate Wallace. The statement may be “indirect” evidence, but is not “direct” evidence of discrimination.

The comment Hahus made on August 8, 1994, cannot be considered evidence of discrimination based on pregnancy. On that day, Wallace, following a doctor’s written order, drew blood from a patient to test the digoxin level. The patient had been given digoxin within six hours of the blood draw, which would cause falsely high readings in the digoxin test. Wallace acknowledged that although the doctor’s order was questionable on its face, she did not seek clarification before carrying it out. Wallace testified at trial that Hahus, after learning of this incident, asked Wallace, “How stupid could you be?” (Tr. 249). Wallace claimed that this remark was direct evidence of discriminatory animus based on pregnancy.

This remark did not directly or indirectly refer to Wallace’s pregnancies or to pregnancy in general. The record discloses no connection between the statement and Wallace’s pregnancies. The remark was made four months before Wallace was discharged. No record evidence suggests that this incident or Hahus’s remark about it had anything to do with her decision to discharge Wallace. In the absence of any evidence of a causal connection to Wallace’s termination or any relationship to Wallace’s pregnancies, Hahus’s statement is neither direct nor indirect evidence of discrimination. See Brown v. CSC Logic, Inc., 82 F.3d 651, 655-56 (5th Cir.1996).

Wallace presented testimony by a hospital employee, Pat Gaskin, that she had overheard a conversation between Schmitz and another employee, Shawn Forney, as direct evidence that Hahus decided to discharge Wallace out of resentment of Wallace’s repeated pregnancies. Gaskin testified as follows:

Q. Did you hear Ms. Schmitz make a comment about Ms. Wallace as to why she was terminated?

A. Yes.

Q. What did you hear?

A, I heard someone ask why she was fired; and she said, first of all, she’s been pregnant three times in the last three years.

Q. And the someone that you heard ask that, was that Ms. Shawn For-ney?

A. Yes

Q.What did Ms. Schmitz respond?

A. She said, “First of all, she’s been pregnant three times in the last three years.”

Q. And did you hear any more of that conversation?

A. No.

Q. What did you do at that point?

A I walked away.

(Tr. 671-72).

This court is obligated to “view all of the evidence in the light most favorable to the verdict.” Baltazor, 162 F.3d at 373. This court does note that both Forney and Schmitz, the actual participants in the conversation, remember this conversation quite differently. Schmitz testified that Forney had asked her which nurse had been terminated. (Tr. 1006). Schmitz told her it was Veronica Wallace, but For-ney “did not seem to recognize [the name].” (Tr. 1007). Schmitz testified: “I gave [Forney] a physical description: dark hair, big smile. And [Forney] still didn’t appear to recognize who that was. And in order to further define that person, I said, ‘And she’s been pregnant three times in the last three years.’ ” (Id.). At that point, Schmitz claims, Forney recognized who Wallace was and the discussion ended.

Forney also testified at trial. Forney agreed that Schmitz was merely providing “a physical description of Veronica [Wallace].” (Tr. 933). Forney testified that she was “a hundred percent” certain that Schmitz was not conveying to her the reason for Wallace’s termination. (Id,.). For-ney stated that if Schmitz had told her that Wallace had been fired because of her pregnancy, she “would have been appalled.” (Id. at 934). “I would have been talking to everybody about that. I would have been furious. As a woman myself, that is so discriminatory.” (Id.).

For the purpose of this motion, this court accepts Gaskin’s account of the portion of the conversation she overheard. However, Gaskin gave no testimony to establish the basis for, or context of, Schmitz’s statement, and Wallace did not otherwise present evidence on these points.

The record discloses that Hahus, not Schmitz, made the decision to discharge Wallace. Schmitz was Wallace’s direct supervisor and participated in annual performance evaluations, but the undisputed testimony was that, as Wallace herself pointed out, Wallace’s overall performance was “not considered in Ms. Wallace’s termination.” (Docket Entry No. 119, p. 7). Schmitz called Wallace on December 20, 1994, at Hahus’s direction, to ask Wallace about the December 19, 1994 incident and reported to Hahus what Wallace had said. (Tr. 1018, 1021). Schmitz testified without contradiction that she had no further role in the events that led to Wallace’s discharge and did not participate in that decision. (Tr. 1021).

Gaskin did not testify that Schmitz told Forney that Hahus had told Schmitz that Wallace’s repeated pregnancies were a factor in her termination. Schmitz did not repeat a statement Hahus had made to her, revealing Hahus’s reasons for the decision. Gaskin’s testimony of the conversation she overheard between Schmitz and Forney described Schmitz’s opinion of one reason for Wallace’s termination. Gaskin’s testimony was not direct evidence of Ha-hus’s discrimination.

The Fifth Circuit’s decision in Haas v. ADVO Systems, Inc., 168 F.3d 732 (5th Cir.1999), is instructive. In Haas, the employer’s vice-president told the plaintiff, a 54-year-old job applicant, after an interview, that “his only concern about hiring [the applicant] was [the applicant’s] age.” Id. at 733. The vice-president recommended that the company not hire the plaintiff. However, the company president actually made the decision not to hire the plaintiff. The Fifth Circuit held that, in the absence of any clear indication that the employer “actually relied on” the applicant’s age in making its decision, the vice-president’s statement was not direct evidence of discrimination.

Schmitz’s statement differs from the remark at issue in Haas because Schmitz’s remark was made after the challenged decision and purported to relate the reasons for the decision. The discriminatory statement in Haas was more strongly probative of discrimination' — it was made before the challenged decision by an employee who offered a recommendation about the decision and raised questions about whether the employer relied on a forbidden factor. However, the statements are similar to the extent that both were made by a person who was not the principal decisionmaker and the record in both cases failed to show the nature of the connection, if any, between the statement and the challenged decision. Schmitz’s statement is substantially less probative, of discrimination than the statement in Haas rejected as direct evidence. Gaskin’s testimony about Schmitz’s statement is insufficient, alone or in conjunction with Hahus’s statement that Wallace “needed to choose between work and family,” to constitute direct evidence showing that pregnancy discrimination was a motivating factor in Methodist’s termination of Wallace. Both statements may be “indirect evidence,” and will be considered in this court’s assessment of the sufficiency of Wallace’s evidence showing that Methodist’s asserted nondiscriminatory reasons for discharging her were a pretext for pregnancy discrimination.

IV. The Evidence of Pretext and Discriminatory Motive

Wallace did not dispute that she-wrote the verbal order in Mr. B’s chart that provided for the removal of the Salem sump and insertion of a feeding tube, before she had obtained such an order. She admitted that she did the procedure without a doctor’s order. She presented two kinds of evidence to show that Methodist used her conduct as a pretext for pregnancy discrimination. First, she argued disparate discipline: her conduct did not violate hospital practice because other nurses outside her protected class had written verbal orders for, and performed, similar procedures without obtaining doctor’s orders in advance and without adverse employment consequences. Second, she pointed to the allegedly discriminatory statements made by Schmitz and Hahus, particularly Hahus’s statement that Wallace “needed to choose between work and family” and Schmitz’s statement to Forney that Wallace’s three pregnancies in three years were the primary reason for her discharge.

This court must consider all the record evidence to determine if there is a fact issue about whether Methodist’s asserted reasons for discharging Wallace were merely a pretext for pregnancy discrimination. A "mere scintilla" of evidence of pretext will not preclude a JMOL in Methodist’s favor. "Even if the evidence is more than a scintilla, `... some evidence may exist to support a position which is yet so overwhelmed by contrary proof as to yield to a [JMOL].’" Rhodes v. Guiberson Oil Tools, 75 F.3d 989, 993 (5th Cir. 1996) (quoting Neely v. Delta Brick & Tile Co., 817 F.2d 1224, 1226 (5th Cir.1987)). The analysis requires a comparison of Methodist’s evidence of legitimate, nondiscriminatory reasons for Wallace’s discharge with Wallace’s evidence of pretext in order to determine whether there is "a conflict in substantial evidence." Id.

Methodist’s stated reason for discharging Wallace was her violation of hospital policies by falsifying a medical record and by performing a procedure without a doctor’s order. The evidence is undisputed that Wallace falsified a patient’s chart by writing a doctor’s order that had not been given. (Tr. 388, 406). The evidence is also undisputed that she performed a procedure that, under Methodist’s official policies, she was prohibited from doing without an order from a physician. (Tr. 388, 408-09).

Methodist policy clearly stated that “[a] physician order is required for the insertion or removal of a nasogastric tube.” (D. Ex. 4, Policy No. D-707, Revision No. 3, p. 1). Methodist treated Wallace’s conduct as a Class I violation under Methodist’s Due Process disciplinary policy, defined as a “serious violation of System standards under circumstances that, after thorough consideration of the facts, may justify termination for a first violation without regard to the employee’s length of service or prior record of conduct.” (D. Ex. 4, Official Procedure No. P001, Revision No. 5, p. 2). Among the examples of Class I violations listed in Methodist’s policies are “illegal, unprofessional, or unethical conduct detrimental to patient care or to [Methodist’s] operations” and “falsifying information to management regarding ... [job] performance.” (D. Ex. 4, Official Procedure P001, Appendix A, p. 1). Methodist classified Wallace’s conduct under both these descriptions in finding a Class I violation that justified her termination. Wallace argued pretext: other nurses engaged in similar conduct, but were not discharged.

To prevail in a discriminatory discharge case involving an alleged violation of a "work rule," a plaintiff must show either that the employer did not reasonably believe the plaintiff violated the rule or that, if the plaintiff did violate the rule, other employees not in the plaintiff’s protected class engaged in similar acts without suffering similar consequences. See Mayberry v. Vought Aircraft Co., 55 F.3d 1086, 1090-92 (5th Cir.1995); see also Simmons v. Rothe Dev., Inc., 952 F.Supp. 486, 490 (S.D.Tex.), aff’d, 132 F.3d 1456 (5th Cir.1997). To establish disparate discipline, the employee must show that other employees outside the protected class were treated more favorably "under `nearly identical’ circumstances." Little v. Republic Refining Co., 924 F.2d 93, 96-97 (5th Cir.1991) (quoting Smith v. Wal-Mart Stores, 891 F.2d 1177, 1180 (5th Cir.1990)); see also Mayberry, 55 F.3d at 1090.

Wallace argued that Methodist permitted nurses to perform a variety of procedures without obtaining a doctor’s order in advance. However, a careful review of the undisputed testimony is that the procedures Wallace and other witnesses described differed from, and did not include, the removal of a Salem sump and insertion of a small bore feeding tube.

Wallace testified that she had inserted an IV line without receiving a doctor’s order. (Tr. 293). However, Hahus testified, without contradiction, that no policy required a physician’s order for the insertion of an TV line. (Tr. 644-45). Wallace testified that she had seen other nurses write a verbal order for and perform the following procedures without receiving a doctor’s order: concentrating medication to maintain blood pressure level, (Tr. 293-94); concentrating medication to comply with a standing order for fluid restrictions, (Tr. 294, 427-30); drawing blood for lab work, (Tr. 296); and renewing restraints. (Tr. 296-97). Hahus testified, without contradiction, that no Methodist policy required a physician’s order for any of these procedures. (Tr. 640-45). Wallace produced no evidence that Methodist policies required a physician’s order for any of these procedures. By contrast, written Methodist policy did require a physician’s order for the insertion of a nasogastric tube in a nonemergency situation.

Wallace’s argument that her action was consistent with nursing practices at Methodist MICU and did not violate any work rule was also flatly contradicted by the testimony of other Methodist nurses at trial. Five nurses were asked whether, in their experience, they had replaced a Salem sump with a small bore feeding tube without receiving a doctor’s order to do so. Each answered that she had not. The same five nurses were asked how they had responded upon receiving an order to begin tube feeding a patient who already had a Salem sump in place. Each testified that she had administered the feeding through the Salem sump. During cross-examination by Methodist’s counsel, nurse Amy Goggins testified as follows:

Q. Have you ever removed a Salem sump from a patient and switched it out for a small bore feeding tube?

A. Yes.

Q. And were — did you discuss it or at least attempt to talk with a doctor before you did that?

A. Yes. Usually you have an order to do that.

Q. So you would have the order to do that?

A. Yes.

Q. Okay. Have you ever received an order to begin tube feeding?

A. Yes.

Q. If the patient had a Salem sump, would you switch out the tube?

A. Not necessarily.

Q. You would leave the Salem sump in place?

A. Yes, I would, if there was nothing, you know, if no adverse effects would happen to the patient.

Q. Would it be fair to say, Ms. Gog-gins, that it’s not very difficult to find a doctor in MICU?

A. No, it’s not hard to find a doctor.

Q. If you have any questions about a particular order, what do you do?

A. I get clarification from a doctor.

(Tr. 591-93). Nurses Pat Gaskin, Valerie Hooper, and Linda Coscio gave similar testimony. (Tr. 675-79, 682 (Gaskin); Tr. 602-04 (Hooper); Tr. 971-72 (Coscio)).

Wallace testified that she had seen one nurse, Linda Coscio, write a verbal order to insert a Foley catheter and insert the catheter without having received a doctor’s order. (Tr. 292). Wallace admitted that she could not definitively state that Coscio had not received a doctor’s order before Wallace began observing her. (Tr. 424-25). Wallace admitted that she did not review the chart to see if a doctor signed the order Coscio wrote. (Tr. 425). Coscio herself denied that she had ever inserted a Foley catheter without first receiving a doctor’s order. (Tr. 970-71). Hahus testified that a doctor’s order was indeed required for the insertion of a Foley catheter. Hahus also testified that she had never been told, and did not know, of any incident in which a nurse wrote an order for and inserted a Foley catheter without a doctor’s order. (Tr. 646-47). Wallace produced no evidence that any nurse supervisors knew of the infraction she alleged and failed to take disciplinary action.

Wallace also testified that she had seen a nurse write a verbal order for, and give, a breathing treatment in an emergency situation, without a doctor’s order. (Tr. 295). In her testimony, Hahus indicated that a nurse needed to talk to a doctor before writing an order and performing a procedure only in a nonemergency situation. (Tr. 640). Hahus also testified that she did not know of the incident Wallace described in her testimony. (Tr. 643). Wallace presented no evidence that any nurse supervisor knew about that incident and failed to take disciplinary action.

Several nurses testified that they had written verbal orders for x-rays