Opinion
Civ. No. 02-2764 (JNE/JGL).
September 28, 2004
Kelly A. Jeanetta, Esq., Miller-O'Brien, P.L.L.P, appeared for Plaintiff Barbara DeWitt.
Donna L. Roback, Esq., Donna L. Roback, P.A., appeared for Defendant Ridgeview Medical Center.
ORDER
This is an age discrimination case brought by Barbara DeWitt (DeWitt) against her former employer, Ridgeview Medical Center (Ridgeview), under the Age Discrimination in Employment Act (ADEA), 29 U.S.C. §§ 621-634 (2000), and the Minnesota Human Rights Act (MHRA), Minn. Stat. § 363A.01 — 363A.41 (2004). The case is before the Court on Ridgeview's motion for summary judgment. For the reasons set forth below, the Court grants the motion.
I. BACKGROUND
DeWitt, a 68-year old woman, is a registered nurse with a nurse anesthetist degree. At all relevant times, she had national certification as a Certified Registered Nurse Anesthetist (CRNA). She began her career as a CRNA in approximately 1960, and she began working as a CRNA for Ridgeview in 1980.
On September 19, 2000, DeWitt took a medical leave of absence to have a pin surgically inserted into her thumb. She expected that her medical leave would be short. However, she experienced complications with the surgery that resulted in third degree burns to her thumb, swelling, nerve damage, and continued pain until the pin was removed in July 2001. As a result, DeWitt's leave was significantly longer than she anticipated. During that time, DeWitt claims to have attended "most" Friday CRNA meetings, where CRNAs discuss matters relating to their practice including changes in patient care, new medications, and new equipment. In addition, during that time, Ridgeview hired four new CRNAs, all of whom were at least 20 years younger than DeWitt.
There is some disagreement about how many meetings DeWitt attended. DeWitt claims that she attended "most" of the Friday meetings; Ridgeview claims that DeWitt attended about half of the Friday meetings.
In August 2001, DeWitt met with her doctor, who approved her return to work. The parties agree that the doctor's instructions permitted DeWitt to work only four hours per day, two times a week, for three weeks. Upon receipt of her doctor's permission to return to work, DeWitt contacted Linda Honstad, a full-time CRNA and long-time colleague of DeWitt at Ridgeview. DeWitt asked Honstad if she could follow Honstad around until DeWitt became comfortable with the new changes that had occurred over the last year at the hospital. In addition, prior to beginning work, DeWitt had a phone conversation with B.J. Buckland, Ridgeview's Medical Director who was in charge of employment decisions with respect to CRNAs, in which they discussed DeWitt's work restrictions and agreed that DeWitt's work schedule would be coordinated with Honstad's hours for the first couple of weeks of DeWitt's return. DeWitt alleges that at various times both Honstad and Buckland made statements to DeWitt about her age.
DeWitt returned to work on September 10, 2001, and she was assigned to work with Honstad. At some point during her first shift, DeWitt was called to a meeting with Buckland, Honstad, Timothy Agrimson, and Dr. James Turner. At that time, Agrimson was the CRNA at Ridgeview who was responsible for self-management, coordination of personnel, and covering Ms. Honstad's cases while she was on break; Dr. Turner was the chief anesthesiologist and was in charge of supervising the CRNAs working at Ridgeview. During the meeting, Buckland asked Agrimson and Honstad to observe DeWitt; to help her get acclimated to the equipment, medications, and procedures; and to mentor and help her refresh her practice skills. There was no discussion about DeWitt's return to a regular, full-time schedule.
DeWitt was then scheduled to work four-hour shifts, twice a week, for three weeks. She was not assigned as the responsible CRNA for any cases, but she did assist with a number of cases during the first two weeks of her return. Specifically, she assisted Honstad on at least one case and Agrimson on another case. Although DeWitt now expresses frustration with her reorientation plan, prior to filing suit she did not express these concerns to Buckland or to any other hospital personnel who may have had the power to adjust her schedule.
Based on DeWitt's performance while under their supervision, both Honstad and Agrimson had concerns about allowing DeWitt to practice independently at the end of her first two-week period, and Honstad informed Buckland of her concerns. Buckland then called another meeting with DeWitt, Buckland, Honstad, Agrimson, and Dr. Turner. During that meeting, Agrimson detailed his concerns about DeWitt's performance while under his supervision. He recounted that during one particular case involving a pregnant woman, DeWitt (1) failed to timely take vital signs; (2) had to be told to give the patient ephedrine when the patient's blood pressure dropped; (3) inserted the wrong medication into the patient's tubing before realizing her mistake; and (4) asked how much of a particular medication to give a patient when she should have known that that medication should never be given to pregnant patients. In response, DeWitt defended her actions by focusing on the fact that the pregnant woman was not her patient and that she was not, therefore, responsible for taking her vital signs. Moreover, DeWitt explained that she did not set up the operating room and, as a result, did not know the location and color-coding of the medications in that room. Finally, she emphasized that she caught her mistake before the patient received the wrong medication. At the close of the second meeting, DeWitt indicated that she believed that the hospital was trying to get rid of her and that she wanted to speak with her lawyer.
Agrimson assigned DeWitt two more four-hour shifts the following week. However, DeWitt called in sick for both shifts. She never returned to work at Ridgeview and never contacted Ridgeview to tell them that she was leaving or to address any concerns she had. She did, however, contact the human resources department to discuss her COBRA benefits.
Ridgeview left DeWitt's job open for approximately four months, until January 31, 2002. Sometime after she left, Ridgeview hired three new CRNAs, all of whom are 20-30 years younger than DeWitt. Ridgeview also hired a 63 year-old CRNA to fill in when regular CRNAs were on vacation or otherwise unable to work.
DeWitt received her Notice of Right to Sue from the EEOC on May 30, 2002, and her Notice of Right to Sue from the Minnesota Department of Human Rights on June 19, 2002. She then filed a four-count Complaint in this Court, alleging two counts of demotion and two counts of constructive discharge under both the ADEA and the MHRA.
II. DISCUSSION
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 a judgment as a matter of law." Fed.R.Civ.P. 56(c). In determining whether summary judgment is appropriate, a court must look at the record and any inferences to be drawn from it in the light most favorable to the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). The moving party "bears the initial responsibility of informing the district court of the basis for its motion," and must identify "those portions of [the record] which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the moving party satisfies its burden, Rule 56(e) requires the nonmoving party to respond by submitting evidentiary materials that designate "specific facts showing that there is a genuine issue for trial." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
A. Age Discrimination Under McDonnell Douglas
DeWitt asserts claims of age discrimination under the ADEA and the MHRA. Both statutes make it unlawful for an employer to discharge or otherwise discriminate against an individual with regard to compensation and other terms and conditions of employment on the basis of age. See 29 U.S.C. § 623(a)(1); Minn. Stat. § 363A.08. A plaintiff may demonstrate age discrimination by either direct or indirect evidence. Fast v. S. Union Co., 149 F.3d 885, 889 (8th Cir. 1998). When a plaintiff puts forth direct evidence that an illegal criterion, such as age, was used in the employer's decision to terminate the plaintiff, the mixed-motive analysis announced in Price Waterhouse v. Hopkins, 490 U.S. 228, 258 (1989) applies. See Browning v. President Riverboat Casino-Missouri, Inc., 139 F.3d 631, 634 (8th Cir. 1998). When a plaintiff is unable to put forth direct evidence, the burden-shifting analysis of McDonnell Douglas applies. Fast, 149 F.3d at 890.
DeWitt has not alleged that there was direct evidence of discrimination in this case to invoke the mixed motive analysis in Price Waterhouse. Nonetheless, she asserts that the McDonnell Douglas framework for ADEA claims does not apply because it has been modified by the Supreme Court's decision in Desert Palace, Inc. v. Costa, 539 U.S. 90 (2003). In Desert Palace, the Supreme Court analyzed part of the Civil Rights Act of 1991 and concluded that a Title VII plaintiff need not present direct evidence of discrimination to obtain a mixed-motive jury instruction. Desert Palace, 539 U.S. at 94. DeWitt asserts that the holding of Desert Palace should be applied to both her ADEA and MHRA claims. She essentially argues that the ultimate effect of Desert Palace is that an employee no longer needs to establish pretext in order to survive summary judgment. Instead, DeWitt argues that if an employee presents circumstantial or direct evidence of age discrimination, the employee need only present evidence that illegal discrimination was a motivating factor in Ridgeview's employment decisions, and that if she does so, the burden of proof shifts to the employer to prove that it would have taken the adverse employment action even if it had not considered the employee's age. In response, Ridgeview asserts that Desert Palace is inapplicable because it applies only to jury instructions, not to the summary judgment motions.
As this Court recently explained, courts have not been uniform in their application of Desert Palace. See Brown v. Westaff (USA), Inc., 301 F. Supp. 2d 1011, 1016-17 (D. Minn. 2004) (discussing other courts' applications of Desert Palace). This Court is bound by United States Supreme Court and Eighth Circuit precedent. See Hood v. United States, 342 F.3d 861, 864 (8th Cir. 2003); Young v. Hayes, 218 F.3d 850, 853 (8th Cir. 2000). The Eighth Circuit Court of Appeals has not reached the issue of if, or how, the holding of Desert Palace impacts the McDonnell Douglas burden-shifting analysis for ADEA claims. Trammel v. Simmons First Bank of Searcy, 345 F.3d 611, 615 (8th Cir. 2003) (discussing, without deciding, whether Desert Palace applies to ADEA claims); Allen v. City of Pocahontas, Ark., 340 F.3d 551, 558 n. 5 (8th Cir. 2003) (noting that the issue was not reached because there was no direct or circumstantial evidence of age or gender discrimination). Instead, the Eighth Circuit continues to analyze ADEA claims involving indirect evidence under McDonnell Douglas. See Erenberg v. Methodist Hosp., 357 F.3d 787, 793 (8th Cir. 2004); Hitt v. Harsco Corp., 356 F.3d 920, 924 (8th Cir. 2004); Chambers v. Metro. Prop. Cas. Ins. Co., 351 F.3d 848, 855 (8th Cir. 2003). Accordingly, the Court will analyze DeWitt's ADEA claim under McDonnell Douglas.
In addition, because the Minnesota Supreme Court has not adopted the Desert Palace decision and has rejected the use of a mixed-motive analysis on discrimination claims under the MHRA, the Court will analyze DeWitt's MHRA claim under McDonnell Douglas. See Erickson v. Farmland Indus. Inc., 271 F.3d 718, 724 n. 2 (8th Cir. 2001) (noting that the Minnesota Supreme Court has rejected the application of a mixed-motive analysis to MHRA claims); Anderson v. Hunter, Keither, Marshall Co., 417 N.W.2d 619, 626-27 (Minn. 1988). Because analysis of discrimination under the MHRA is the same as the analysis under the ADEA, the Court will address DeWitt's MHRA and ADEA claims together. See Ziegler v. Beverly Enter.-Minn., Inc., 133 F.3d 671, 675 (8th Cir. 1998) (using same analysis for claims under the ADEA and the MHRA).
Under McDonnell Douglas, a plaintiff must first establish a prima facie case of discrimination. Mayer v. Nextel W. Corp., 318 F.3d 803, 806-07 (8th Cir. 2003). Then the burden shifts to the defendant, who must offer evidence of a reason other than age discrimination for its action. Id. at 807. If the defendant satisfies this burden, the plaintiff must present sufficient evidence to raise a question of fact as to whether the defendant's proffered reasons are pretextual and to create a reasonable inference that age was a determinative factor in the employer's adverse action. Id. 1. The Prima Facie Case
In order to establish a prima facie case of age discrimination, DeWitt must present evidence that (1) she was a member of a protected group, i.e., at least 40 year of age, (2) she was qualified for her position, (3) Ridgeview took some type of adverse employment action, and (4) she was replaced by a person not in the protected class, or similarly situated employees who were not members of the protected class were treated more favorably. See Tatom v. Georgia-Pacific Corp., 228 F.3d 926, 931 (8th Cir. 2000).
Ridgeview concedes that DeWitt has established the first two requirements of a prima facie case but asserts that she cannot satisfy the two remaining elements. Ridgeview argues that DeWitt cannot demonstrate that she suffered an adverse employment action under either of her two theories — constructive discharge and demotion, and DeWitt cannot demonstrate that she was treated differently than younger employees or replaced by a younger employee.
The Court will begin its analysis by considering each of DeWitt's adverse employment action theories.
a. Constructive Discharge
DeWitt asserts that the comments of various Ridgeview employees, together with her demotion and the close scrutiny to which she was subjected, rendered her working conditions intolerable and resulted in her constructive discharge. DeWitt alleges that Buckland told her that he had "a real problem" with her "ever coming back full-time," Honstad told her that `they don't think you're going to make it," and both Buckland and Honstad made references to her about her age and about newer CRNA graduates being better trained. In response, Ridgeview argues that DeWitt was not constructively discharged because she did not give Ridgeview a chance to try to address her concerns and, in addition, DeWitt cannot show that Ridgeview intended to force her to quit.
In order to prevail on a constructive discharge claim, the plaintiff must demonstrate that the defendant deliberately rendered her working conditions so intolerable that a reasonable person would feel compelled to resign or retire. Tatom, 228 F.3d at 931-32. In so doing, the plaintiff must demonstrate that the defendant's actions were intended to force her to quit. Id. at 932. This requirement can be satisfied by showing that the plaintiff's resignation was a reasonably foreseeable consequence of the defendant's discriminatory actions. Id. In addition, the plaintiff must demonstrate that a reasonable person would find her working conditions intolerable. Id. The reasonable person standard is an objective one, with the relevant question being whether the defendant rendered the working conditions so objectionable that a reasonable person would have deemed the plaintiff's resignation her only plausible alternative. Id. An employee who quits without giving her employer a reasonable chance to work out a problem is not constructively discharged. See West v. Marion Merrell Dow, Inc., 54 F.3d 493, 498 (8th Cir. 1995). "Part of an employee's obligation to be reasonable is an obligation not to assume the worst and not to jump to conclusions too fast." Id. (quotations omitted); see also Breeding v. Arthur J. Gallagher Co., 164 F.3d 1151, 1159 (8th Cir. 1999) ("The employee has an obligation to act reasonably by not assuming the worst and not jumping to conclusions too quickly.").
DeWitt has not proffered any evidence that creates a genuine issue of material fact on the issue of whether she was constructively discharged. Among other deficiencies, she not presented evidence that her working conditions were objectively intolerable. It is not enough that her working conditions were less than ideal given Buckland and Honstad's alleged comments, Agrimson's and Buckland's criticisms of her performance, and her supervised part-time work schedule. Cf. Tork v. St. Luke's Hospital, 181 F.3d 918, 920 (8th Cir. 1999) (holding that plaintiff was not constructively discharged where she quit her job after only a few incidents of allegedly unfair criticism and only one incident of denied recourse); see also Tidwell v. Meyer's Bakeries, Inc., 93 F.3d 490, 496 (8th Cir. 1996) ("Dissatisfaction with a work assignment is, as a matter of law, normally not so intolerable as to be a basis for constructive discharge"). DeWitt was treated no differently than other Ridgeview employees who took extended leaves of absence. At least two other Ridgeview employees — a doctor and a CRNA — were required to undergo a period reorientation upon returning from eight- and twelve-week leaves of absence. Both employees described this period as being difficult, and one indicated that he felt he was "subjected to close scrutiny" during the reorientation. Given this similar treatment, DeWitt cannot demonstrate that Ridgeview intended her to resign. See Allen v. Bridgestone/Firestone, Inc., 81 F.3d 793, 797 (8th Cir. 1996) (holding that when employees are treated alike, no particular employee can claim that difficult working conditions signify the employer's intent to force that individual to resign).
Moreover, DeWitt did not give Ridgeview a reasonable opportunity to address her concerns. DeWitt complains that she was forced to quit her job, in part, because her reorientation was arbitrary and lacked clear standards for successful completion. However, she clearly admitted that she did not lodge any complaints about the deficiencies of Ridgeview's reorientation plan, and while she complained at one point that she was under the impression that Ridgeview was "trying to get rid of her," that complaint was made only in the second and final meeting with Buckland, Honstad, Agrimson, and Dr. Turner. She never returned to Ridgeview after that meeting; and she therefore never gave Ridgeview a chance to address her concerns. See Sowell v. Alumina Ceramics, Inc., 251 F.3d 678, 685-86 (8th Cir. 2001) (holding that employee was not constructively discharged in a Title VII case where the employee expressed disapproval of new company policy but took no further steps to give employer a reasonable chance to work out the problem); Tork, 181 F.3d at 920 (8th Cir. 1999) ("An employee who quits without giving the employer a reasonable chance to work out a problem has not been constructively discharged.").
In sum, there is no genuine issue of material fact on the question of whether DeWitt has established that she was constructively discharged. Because she has failed to establish this element of her case, her constructive discharge claims fail as a matter of law and the Court need not consider the fourth element of DeWitt's prima facie case. Accordingly, the Court grants Ridgeview's summary judgment motion with respect to DeWitt's two claims for constructive discharge under the ADEA and the MHRA.
b. Demotion
DeWitt alleges that Ridgeview's part-time, supervised reorientation plan was effectively a demotion. In response, Ridgeview asserts that the part-time reorientation plan was not a demotion because it gave DeWitt part-time status in order to comply with her doctor's order. Moreover, Ridgeview intended the plan to help DeWitt become comfortable with the new changes that had occurred during her leave and was a way to ensure patient safety.
The Court finds that there is no genuine issue of material fact with respect to whether the reorientation was a demotion. It was not. DeWitt's doctor mandated that she work only part-time for at least the first two weeks of her return and after that "with progression per patient's symptoms." Therefore, Ridgeview was prohibited initially from scheduling DeWitt as a full-time CRNA. Moreover, DeWitt herself acknowledged that she needed some sort of reorientation so that she could become familiar with changes in procedures, machinery, drugs, and anesthesiologist preferences. The reorientation plan was, in sum, designed at DeWitt's request and for her benefit. Even if it did not conform precisely to her expectations, it cannot, therefore, be deemed an "adverse" employment action. Cf. Montadon v. Farmland Indus., Inc., 116 F.3d 355, 359 (8th Cir. 1997) (holding that action must have some adverse impact on the plaintiff to constitute an adverse employment action). Furthermore, assuming the reorientation plan was an adverse employment action, it did not materially affect DeWitt's employment because the part-time schedule was temporary. There is no suggestion in the record that Ridgeview tried to make the part-time, supervised schedule permanent. In fact, Ridgeview held DeWitt's full-time position was held open for her for four months. Given the temporary nature of DeWitt's situation, DeWitt has not presented evidence that raises a genuine issue of material fact on the question of whether her part-time, supervised schedule was a demotion that rises to the level of a material adverse employment action. See MacGregor v. Mallinckrodt, Inc., 373 F.3d 923, 928 (8th Cir. 2004) (holding that in order to rise to the level of an adverse employment action, the adverse action must produce a material employment disadvantage).
In sum, there is no genuine issue of material fact on the question of whether DeWitt has established that she was demoted. Because she has failed to establish this element of her case, her demotion claims fail as a matter of law and the Court need not consider the fourth element of DeWitt's prima facie case. Accordingly, the Court grants Ridgeview's summary judgment motion with respect to DeWitt's two claims for demotion under the ADEA and MHRA.
2. Remaining McDonnell Douglas Elements
Even if DeWitt had established a prima facie case, Ridgeview would be entitled to summary judgment because it had legitimate, nondiscriminatory reasons for its actions which were not pretextual. Namely, Ridgeview has presented evidence that it placed DeWitt on a part-time schedule because both she and her doctor requested it and because, after Honstad and Agrimson raised about DeWitt's performance, Ridgeview wanted to ensure that DeWitt was properly orientated to ensure its patients' safety.
To establish pretext, DeWitt must be able to present evidence that (1) creates a fact issue as to whether Ridgeview's proffered reasons are pretextual and (2) creates a reasonable inference that age was a determinative factor in its adverse employment decision. Rothmeier v. Inv. Advisers, Inc., 85 F.3d 1328, 1336-37 (8th Cir. 1996). She can do neither, especially in light of the fact that Ridgeview had enacted similar reorientation plans in the past and that DeWitt herself requested the part-time schedule. Nor can DeWitt create a reasonable inference that age was a determinative factor in Ridgeview's decisions by relying on the remarks made by Honstad and Buckland and on statistical evidence. At least some of these remarks did not reference DeWitt's age, other remarks were stray remarks made in the workplace, and others would need a series of inferences before a discriminatory intent could be inferred. None are sufficient to raise an inference of discriminatory intent. See e.g., Erickson, 271 F.3d at 730; Hill v. St. Louis Univ., 123 F.3d 1114, 1119 (8th Cir. 1997). Finally, DeWitt's proffered statistical evidence concerning Ridgeview's hiring of seven younger CRNAs is also insufficient because it is generic employment data that does not show that Ridgeview hired younger CRNAs when it could have hired older CRNAs. See Bogren v. Minnesota, 236 F.3d 399, 406 (8th Cir. 2000) (explaining that generic type of employment statistics are not probative of reasons for termination).
Without more, the Court finds that there is no genuine issue of material fact that DeWitt has failed to establish the required elements under McDonnell-Douglas. For this reason, the Court grants Ridgeview's motion for summary judgment.
III. CONCLUSION
Based on the files, records, and proceedings herein, and for the reasons stated above, IT IS ORDERED THAT:
1. Ridgeview's Motion for Summary Judgment [Docket No. 10] is GRANTED.
2. DeWitt's Complaint [Docket No. 1] is DISMISSED WITH PREJUDICE. LET JUDGMENT BE ENTERED ACCORDINGLY.