Opinion
Case No. 98-4105 SAC.
July 20, 2001.
MEMORANDUM AND ORDER
This age discrimination case comes before the court on defendants' motion for summary judgment. The sole claim presented is whether the plaintiff's employment with or termination from employment by the defendants violated the Age Discrimination in Employment Act (ADEA).
Summary Judgment Standards
The standards and procedures for summary judgment are well established and will not be fully repeated here. See Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986). In essence, summary judgment is proper if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Id.
Summary judgments "`should seldom be used in employment discrimination cases.'" O'Shea v. Yellow Technology Services, Inc., 185 F.3d 1093, 1098 (10th Cir. 1999) (quoting Smith v. St. Louis University, 109 F.3d 1261, 1264 (8th Cir. 1997)). Because discrimination claims often turn on the employer's intent, courts ordinarily consider summary judgment inappropriate. Cone v. Longmont United Hosp. Ass'n, 14 F.3d 526, 530 (10th Cir. 1994); see Courtney v. Biosound, Inc., 42 F.3d 414, 418 (7th Cir. 1994) ("[T]he summary judgment standard is applied with added rigor in employment discrimination cases, where intent and credibility are crucial issues." (quotation and citation omitted)). Even so, summary judgment is not "per se improper," Washington v. Lake County, Ill., 969 F.2d 250, 253 (7th Cir. 1992), and may be useful in weeding out claims and cases obviously lacking merit, Summers v. State Farm Mut. Auto. Ins. Co., 864 F.2d 700, 709 (10th Cir. 1988), overruled on other grounds, McKennon v. Nashville Banner Pub. Co., 513 U.S. 352 (1995).
Facts
Some facts relevant to the motions are set forth herein as background. Others are included as necessary in the analysis which follows. Controverted facts have been construed in the light most favorable to plaintiff as the non-moving party.
Plaintiff began working at Newman Memorial Hospital in 1981. During the last several years of plaintiff's employment she worked as a sterile processing department ("SPD") technician. As a sterile processing technician, plaintiff's immediate supervisor was Marlene Hanson, who was in charge of the sterile processing division. Hanson's supervisor was Linda Hacker.
The SPD takes care of instrument trays that are used in surgery, in the emergency room and in labor and delivery. Employees of the department pick them up from various rooms in the hospital, take them back to the department, clean them, decontaminate them, check them to make sure they are all intact and nothing is broken, and then wrap them and sterilize them for reuse. Employees in SPD rotated the three primary duties of tracking the equipment, decontaminating it and sterilizing it. Tracking the equipment was done by going to patient's rooms, finding the equipment used during routine patient care, and using a hand held unit with a light, (the tracker) which would read a bar code on the equipment.
Prior to June of 1995, there were four full time employees in the Sterile processing department, including supervisor Hanson. In June of 1995, Hacker had heard that plaintiff had discussed retirement with the personnel director. Hacker decided that she would like to "stretch her staff" and one possibility of doing that was to develop two part time positions.
Accordingly, Hacker approached plaintiff about a part time position in which plaintiff would no longer be part of the rotation but would be primarily responsible for the equipment tracking. After considering the offer, plaintiff accepted the part-time tracking position, and began in June of 1995. When plaintiff shifted to the part time job, Sara Munich, a 22 year old college student, was hired to work part time in the regular rotation of the other employees in SPD.
Plaintiff's evaluations were generally satisfactory over the years, but repeatedly noted either her need to speed up to complete her work or her difficulty in completing the work she was assigned. After plaintiff moved to the part time position, Hacker and Hanson observed that Plaintiff could not get the work done within the time alotted. Among other problems, plaintiff had difficulty in downloading the information from the tracker into the computer system. Attempts to assist plaintiff in this task were unsuccessful. Hacker placed plaintiff on job probation on September 20, 1996, and revised expectations for her job were issued on October 25, 1996.
Mr. Terry Lambert, the Chief Executive Officer for defendant, is employed by Quorum Health Resources, a hospital management company. Defendant's board of directors has a management agreement with Quorum to manage the day-to-day operations of the hospital. Quorum supplies the Chief Executive Officer and the Chief Financial Officer to the hospital. Quorum did not employ plaintiff.
In 1996, the hospital instituted a staff reduction plan because income from the area of hospital operations had dropped substantially. The plan resulted from the leadership team's examination of all areas of the hospital and its operations to see how it could be run more profitably without affecting patient care or services.
Defendant's personnel policy provides that for a reduction in force the factors taken into account will be the job classification, job performance and seniority. As a result of the plan, approximately eleven to twelve full time equivalent positions were eliminated. Many of these full time equivalents consisted of two part time jobs. The department managers looked at their part time positions to determine whether they could be eliminated and their job duties consolidated into other full time positions.
The decision to eliminate plaintiff's position was primarily that of Linda Hacker. In response to the staff reduction program, Hacker submitted her proposed changes to the leadership team. This proposal suggested the elimination of plaintiff's position to save approximately $8,000 a year. Hacker would not have terminated Plaintiff but for the reduction in staff.
The leadership team followed Hacker's recommendation and plaintiff's position was eliminated in November of 1996. Plaintiff's immediate supervisor, Hanson, played no part in the decision to eliminate plaintiff's position. After plaintiff left, the equipment tracking duties were absorbed by another department, the General Stores Department, which used a a different tracking system. SPD did not hire another employee to replace plaintiff after it eliminated her part time position.
Proper Party Defendant
Defendant Quorum Health Resources, Inc., has moved for summary judgment based upon the fact that it did not employ the plaintiff. Plaintiff has not responded to this motion, or otherwise shown that Quorum Health Resources, Inc. was plaintiff's "employer" within the meaning of that term in the ADEA. This motion will therefore be granted.
This memorandum hereafter uses the term "defendant" in reference solely to defendant Newman Memorial County Hospital.
Procedural Objection
Plaintiff objects that defendant's facts are not supported by the record as required by the Local Rules for the District of Kansas. Yet plaintiff specifies neither the rules which defendant has allegedly violated, nor the manner in which defendant's brief allegedly violates them. The court finds that defendant's memorandum and facts stated therein fully comply with D.Kan. Rule 56.1. Plaintiff's vague objection is thus overruled.
Analysis
I. Termination
The ADEA provides in pertinent part that it is "unlawful for an employer . . . to discharge any individual . . . because of such individual's age." 29 U.S.C. § 623(a)(1). Plaintiff's case is not based upon direct evidence. The court evaluates ADEA claims based on indirect evidence of discrimination under the burden-shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Beaird v. Seagate Technology Inc., 145 F.3d 1159, 1165 (10th Cir.), cert. denied, 525 U.S. 1054 (1998).
Defendant concedes, for purposes of the McDonnell Douglas analysis, that plaintiff has presented evidence establishing a prima facie case of age discrimination. The burden thus shifts to the defendant to provide a legitimate, nondiscriminatory explanation for its discharge decision. E.E.O.C. v. Flasher Co., Inc., 986 F.2d 1312, 1316 (10th Cir. 1992). This burden is merely to show a facially nondiscriminatory reason for the termination. At this stage of the proceedings defendant does not need to litigate the merits of the reasoning, or prove that the reason relied upon was bona fide, or prove that the reasoning was applied in a nondiscriminatory fashion. Id. at 1316 (footnote omitted).
Defendant has come forward with such an explanation — a reduction in force ("RIF"). The evidence shows that a RIF occurred around the time of plaintiff's termination, which involved about eleven or twelve full time equivalent positions. Most of those positions were part-time positions, with only one or two being full time employees. (Lambert depo., p. 14-15).
Although this number is not great, "an employer need not dismiss any particular number of employees, or terminate a set percentage of the work force, to institute a reduction in force." LeBlanc v. Great American Ins. Co., 6 F.3d 836, 845 (1st Cir. 1993) (three employees out of 212), cert. denied, 511 U.S. 1018 (1994); see Roger v. Yellow Freight Systems Inc., 21 F.3d 146, 151 (7th Cir. 1994) (rejecting claim that a reduction of 4.67% of the workforce is per se not a legitimate RIF); Rhymes v. St. Joseph Regional Medical Center of Northern Oklahoma Inc., 87 F.3d 1327, 1996 WL 346585 at *3 (10th Cir. June 25, 1996) (Table) (rejecting claim that twelve employees out of 532 is too small to be a RIF).
After the defendant meets the burden of producing a facially nondiscriminatory reason for the employment decision, as defendant has done here, the presumption of discrimination established by the prima facie showing "simply drops out of the picture." St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 507 (1993).
Thus, it is plaintiff's task to show that the defendant's justification was pretextual. This is done by establishing "either that a discriminatory reason more likely motivated the employer or . . . that the employer's proffered explanation is unworthy of credence." Bullington v. United Air Lines, Inc., 186 F.3d 1301, 1317 (10th Cir. 1999) (quotation omitted). Three common yet non-exclusive methods are used to demonstrate pretext in the RIF context: (1) evidence that the termination of the employee is inconsistent with the employer's RIF criteria; (2) evidence that the employer's evaluation of the employee was falsified to cause termination; or (3) "evidence that the RIF is more generally pretextual." Beaird, 145 F.3d at 1168. Plaintiff has not articulated any of these three, but makes allegations that may fall generally within the third catch-all method.
A. Age Related Comments
Defendant relies heavily upon age related comments from plaintiff's immediate supervisor, Hanson, and department head, Hacker. Those comments are as follows.
Plaintiff testified that before June of 1995 when plaintiff took the part-time position, department head Hacker asked her whether she planned to retire that year. Plaintiff replied that she did not. Hacker asked Hanson the same question about plaintiff sometime in 1995 or 1996.
Marlene Hanson, the supervisor of Sterile Processing Department (SPD) and plaintiff's then immediate supervisor, told plaintiff in December of 1994 or 1995 that plaintiff had to make up her mind what she was going to do, or the hospital was going to make it up for her. (Plaintiff's depo., p. 65). Plaintiff believed that Hanson was referring to retirement. On some unspecified date, Hanson spoke to plaintiff about the advantages of taking Social Security early, and told plaintiff that she was going to have a health break down if she didn't slow down. In March of 1996, Hanson told plaintiff's daughter that she had been trying for a long time to get plaintiff to retire. (Plaintiff's depo. p. 61-62.)
In some instances, evidence of discriminatory comments may be relevant to the issue of pretext. See Shorter v. ICG Holdings, Inc., 188 F.3d 1204, 1209-10 (10th Cir. 1999). To be significant evidence of pretext, however, the objectionable conduct or remarks should be attributable to an individual responsible for the employment decision. See Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 151 (2000) (evaluating age-based comments made by the individual "principally responsible" for plaintiff's firing); Kendrick v. Penske Trans. Services Inc., 220 F.3d 1220, 1231 (10th Cir. 2000); Cone, 14 F.3d at 531(to raise inference of discrimination, age-related comments must have been made by decisionmaker, and must have some nexus to plaintiff, his position, or the employment decision).
Under the circumstances of the present case, supervisor Hanson's comments do not suffice to raise an inference of pretext. Hanson was not involved in the recommendation or decision to eliminate plaintiff's position, and her comments had no nexus to that decision. The fact that Hanson was plaintiff's supervisor does not automatically establish the requisite nexus. See Shorter, 188 F.3d at 1210.
Plaintiff additionally alleges that two other female employees mentally and verbally harassed her because of her age. Plaintiff admits, however, that neither made comments about her age. (Plaintiff's depo., p. 66-67).
Although Hacker's recommendation carried enough weight with the leadership group that the court may consider her to have been a decisionmaker, her one time question to plaintiff before June of 1995 regarding plaintiff's intent to retire is nothing but an isolated question, not shown to be related to the decision made over a year later to eliminate plaintiff's position. "Isolated comments, unrelated to the challenged action, are insufficient to show discriminatory animus in termination decisions." Cone, 14 F.3d at 531. Compare Tomsic v. State Farm Mut. Auto. Ins. Co., 85 F.3d 1472, 1474, 1479 (10th Cir. 1996). The same is true for Hacker's question to Hanson regarding plaintiff's intent to retire.
B. Necessity of RIF
Plaintiff challenges the necessity of the RIF by alleging that defendant was financially healthy and profitable. Plaintiff points to the testimony of Hacker, plaintiff's department head. Hacker stated her belief, based upon articles shown to her at her deposition by plaintiff's attorney, that the hospital was not losing money in 1996, 1997 or 1998. (Hacker depo., p. 103-106). This testimony, based upon unidentified articles, and given by a department head not shown to have personal knowledge of defendant's financial state, has little, if any, probative value.
Plaintiff also directs the court to testimony of Lambert, defendant's CEO since April of 1996. Lambert testified that during 1996, defendant was actively hiring employees in certain job classifications, such as a laboratory director to replace the one who retired. (Lambert depo. p. 30). Absent evidence that defendant sought or hired others in the same department as the plaintiff, or who were similarly situated, the cited testimony lacks probative value.
The record shows that defendant's finance committee and board determined that a RIF was necessary. See Lambert depo., p. 13-19. Unlike department heads, the finance committee and board had personal knowledge of the financial condition of the defendant. As the Tenth Circuit has stated: "the wisdom of a RIF is not for a court or jury to decide. A RIF is a business decision, and the ADEA is not a vehicle for reviewing the propriety of business decisions." Doan v. Seagate Technology, Inc., 82 F.3d 974, 977 (10th Cir. 1996) (internal quotation marks and citation omitted). Accordingly, plaintiff's speculations about the financial status of the defendant are not probative.
C. Susceptibility of RIF for Discrimination
Plaintiff relies upon the testimony by Karen Shumate, defendant's Director of Quality and Risk Managment, to show that the RIF selection procedures did not contain safeguards against unlawful discrimination. Shumate stated that to her knowledge there was no built-in system or procedure to ensure that the department heads, who recommended to the leadership group specific positions within their departments for elimination, were not selecting employees for discriminatory reasons. Although the leadership group, which made the ultimate decision to terminate positions, had no knowledge of an employee's age, and spoke only about positions instead of particular persons, the department heads had such knowledge. The leadership group would not have known if a department head had recommended the elimination of a particular position because of discriminatory reasons. (Shumate depo., p. 24-25, 51).
The above testimony fails to raise an inference that the decision to eliminate plaintiff's position, or the recommendation to do so, was based even in part upon plaintiff's age. To show that a procedure is not discrimination-proof is a far cry from showing that the procedure was applied to this plaintiff in a discriminatory fashion.
D. Deviation from RIF Criteria
Plaintiff infers that defendant deviated from its published RIF criteria, in alleging: "Lambert agrees that seniority of employees is a consideration when eliminating position, (sic) however in [plaintiffs] case, he did not look at the seniority list." (Dk. 58, p. 9). It is undisputed that seniority was one of the three factors to be considered in a RIF.
The fact that Lambert did not consider a person's seniority when he reviewed the department head's recommendation does not mean that seniority was not considered by the department head in deciding which position to recommend for elimination. The record cited thus fails to support the proposition that defendant deviated in any way from its published RIF criteria in determining to eliminate plaintiff's position.
To the extent that plaintiff may be asserting that defendant's RIF criteria and/or its application had a disparate impact upon older workers, generally, or on plaintiff, specifically, it fails to state a claim. "Disparate impact claims are not cognizable under the ADEA. Ellis v. United Airlines, Inc., 73 F.3d 999, 1007 (10th Cir. 1996)." Furr v. Seagate Technology Inc., 82 F.3d 980, 987 (10th Cir. 1996).
E. Ongoing Scheme or Conspiracy
Plaintiff contends that defendant assigned her to a redundant and expendable part-time job in June of 1995, hired a 22 year old to replace her part-time in the valuable full-time job she previously held, and then used an unnecessary RIF to effectuate its scheme to terminate her because of her age in November of 1996. She argues that she was doing a good job when she was laid off, that she was the oldest and most senior employee in her department, that she was the sole employee terminated in her department, and that her job duties were performed by younger employees after her termination, providing a reasonable inference that defendant terminated her because of her age.
The court finds no credible evidence of age discrimination to support plaintiff's conspiracy theory. Although defendant approached plaintiff in the summer of 1995 about working part-time instead of full time, plaintiff was offered the part-time position, and was not "assigned," involuntarily transferred, or otherwise coerced into accepting it.
Additionally, the record is void of evidence that defendant planned in the summer of 1995 to eliminate plaintiff's part-time position or terminate her employment. No evidence shows the RIF was even being considered at that time, or if it was, that Hacker, who offered plaintiff the part time position, knew the RIF was impending or the potential impact it could have upon plaintiff.
Plaintiff seems to allege that defendant set her up to fail in her part-time position, in alleging that plaintiff was assigned to "a job that was so complicated [plaintiff] wouldn't be able to do it." (Dk. 58, p. 10). The record shows, however, that plaintiff's part-time job consisted primarily of one of the same duties that she had been previously performing in her full time position. (Plaintiff's depo., p. 54-59). Instead of doing the tracker, sterilization, and decontamination duties she had done when full-time, plaintiff did only the tracker duties in her part-time position. (Id.); Hacker depo., p. 21-23). Accordingly, the record provides no support for plaintiff's assertion that her part-time job consisted of new, different, or more difficult tasks, or that the duties of the part-time position were so complex that she would necessarily fail in attempting to perform them.
Further, plaintiff has failed to show that defendant's managers were aware of the upcoming RIF when they hired 22 year old Munich in 1995. The fact that a significantly younger person was hired before the RIF to perform some of the duties plaintiff had previously performed fails to show the pretextual nature of the RIF. See Doan, 82 F.3d at 977 (pre-RIF hiring is not evidence that a RIF "was merely a pretext for pruning away unwanted employees" where the defendant's managers were unaware of the upcoming RIF when they hired the new employees). The record confirms that Munich was hired as a part-time employee over a year before the RIF, and remained a part-time employee after plaintiff's position was eliminated. (Hanson depo., p. 33).
Plaintiff additionally implies that she should have been given an option to take another position, according to defendant's policy. (Dk. 58, p. 13). Defendant's policy was to give an employee who was separated due to staff reduction an option to take another position if one became available within three months. Dk. 47, Exh. E; (Hacker depo., p. 75-76). Plaintiff was aware of this policy, as evidenced by her signature on a written copy of the policy. (Id., p. 76). Assuming, arguendo, that this recall policy applied to plaintiff, no evidence has been presented to show that any position became available within three months after plaintiff's position was eliminated. Without such a showing, no inference of pretext arises based upon the fact that plaintiff was not recalled.
F. Selection of Plaintiff's Position
The reasons articulated by defendant for eliminating plaintiff's part-time job as a separate position are, generally, its ongoing effort to downsize the workforce, and, specifically, Hacker's belief that of all the jobs in the departments which she supervised, the duties performed by the plaintiff could most easily be incorporated into the duties of other employees. (Hacker depo., p. 113). Although Hacker could have selected any other position in her departments for elimination, she also had the discretion to determine which one to select. The reasons Hacker testified to for selecting plaintiff's position have been factually substantiated in the record, and have not been shown to be pretextual. After plaintiff's position was eliminated, her duties were performed by existing employees in another department, by use of another method. (Hanson depo., p. 22,23, 32-33).
G. Plaintiff's Work Performance
It is undisputed that plaintiff would not have been terminated in the absence of the RIF. Plaintiff relies upon her satisfactory job performance as evidence that the decision to terminate her position was pretextual. Plaintiff's evidence of her satisfactory work performance is not probative because in a reduction in force case, "someone has to be let go," Conkwright v. Westinghouse Elec. Corp., 933 F.2d 231, 235 (4th Cir. 1991).
Although plaintiff was performing her job adequately at the time of her termination, her lack of proficiency is not prohibited for use as a RIF selection criterion. See Furr, 82 F.3d at 988 ("It is the manager's perception of the employee's performance that is relevant, not plaintiff's subjective evaluation of his own relative performance.") Plaintiff testified that at the time of her termination, she was able to do her job well. Hacker testified, however, that at the time of plaintiff's termination, she believed plaintiff could not remember the steps required for using the tracker. (Hacker depo., p. 37-38). In order to show pretext, plaintiff must show that her employer did not hold this belief in good faith. See McKnight v. Kimberly Clark Corp., 149 F.3d 1125, 1129 (10th Cir. 1998) (discussing employer's good faith belief). No such showing has been made.
H. Other Employees
Plaintiff states that it "has presented evidence from a number of other older employees that were fired, forced to retire or their work conditions were made difficult." (Dk. 58, p. 24). Plaintiff makes no other reference to or analysis whatsoever of such evidence or the impact plaintiff believes it may have upon the issue in this case, and the court declines to make plaintiff's arguments for her.
This is not a "pattern and practice" case. See Final Pretrial Order.
Plaintiff has failed to show evidence upon which a factfinder could conclude that the defendant's alleged nondiscriminatory reasons for the employment decisions are pretextual. In sum, the record reflects an employer's legitimate business decision regarding the elimination of a position. Plaintiff's criticisms of that decision do not render it unworthy of belief. At most, they challenge the employer's wisdom, which is beyond the court's purview here. See Furr, 82 F.3d at 986 ("The ADEA is not a vehicle for reviewing the propriety of business decisions.").
This case lacks a showing of any disturbing procedural irregularity in defendant's application of the RIF, any evidence that another person was hired during the RIF or soon thereafter in a position similar to plaintiff's, or evidence that other younger employees whose positions were slated for elimination were given opportunity to transfer instead of be terminated. Nor has other evidence raising a material question of fact regarding pretext been shown. Summary judgment is thus warranted on plaintiff's claim of discriminatory termination.
II. Hostile Work Environment
Plaintiff alleges in the pretrial order, and argues in her summary judgment response brief, that she was verbally and mentally harassed because of her age, while employed with the defendant. In an abundance of caution, the court will construe this as a hostile work environment claim. Although the Tenth Circuit has not expressly recognized a "hostile work environment" theory under the ADEA, the court will presume the viability of such a claim.
For such a claim to survive a summary judgment motion, "`a plaintiff must show that a rational jury could find that the workplace is permeated with discriminatory intimidation, ridicule, and insult, that is sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment.'" Penry v. Federal Home Loan Bank of Topeka, 155 F.3d 1257, 1264 (10th Cir. 1998). The statements and acts of which plaintiff complains, including those of Hanson, Hacker, Debbie Bruno and Grace Brunett, were neither severe nor pervasive, and did not alter the conditions of plaintiff's employment. To the extent plaintiff seeks to pursue a claim for hostile work environment pursuant to the ADEA, summary judgment is warranted.
IT IS THEREFORE ORDERED that defendant's motion for summary judgment (Dk. 47) is granted.