Opinion
IP 99-0561-C T/K
December 14, 2001
B John H Haskin Haskin Lauter Cohen Larue, Indianapolis, IN.
Kim F Ebert Ogletree Deakins Nash Smoak Stewart, Indianapolis, IN.
Ariane S Johnson Ogletree Deakins Nash Smoak and Stewart, Indianapolis, IN.
ENTRY OF DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
Though this Entry is a matter of public record and is being made available to the public on the court's web site, it is not intended for commercial publication either electronically or in paper form. The reason for this caveat is to avoid adding to the research burden faced by litigants and courts. Under the law of the case doctrine, the ruling or rulings in this Entry will govern the case presently before this court. See, e.g., Trs. of Pension, Welfare, Vacation Fringe Benefit Funds of IBEW Local 701 v. Pyramid Elec., 223 F.3d 459, 468 n. 4 (7th Cir. 2000); Avitia v. Metro. Club of Chicago, Inc., 49 F.3d 1219, 1227 (7th Cir. 1995). However, a district judge's decision has no precedential authority and, therefore, is not binding on other courts, on other judges in this district, or even on other cases before the same judge. See, e.g., Howard v. Wal-Mart Stores, Inc., 160 F.3d 358, 359 (7th Cir. 1998) ("a district court's decision does not have precedential authority"); Malabarba v. Chicago Tribune Co., 149 F.3d 690, 697 (7th Cir. 1998) ("district court opinions are of little or no authoritative value"); United States v. Articles of Drug Consisting of 203 Paper Bags, 818 F.2d 569, 571 (7th Cir. 1987) ("A single district court decision . . . has little precedential effect. It is not binding on the circuit, or even on other district judges in the same district."). Consequently, though this Entry correctly disposes of the legal issues addressed, this court does not consider the discussion to be sufficiently novel or instructive to justify commercial publication of the Entry or the subsequent citation of it in other proceedings.
On April 22, 1999, Plaintiff Mary Sue Mohr ("Mohr") brought suit against her former employer Clarian Health Partners, Inc. ("Clarian"). This action was brought pursuant to the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et seq., and the Employment Retirement Income Security Act of 1974 ("ERISA"), 29 U.S.C. § 1001 et seq. Mohr alleges that Clarian terminated her on September 29, 1998, because of her age. Clarian has moved for summary judgment on all of Mohr's claims. Clarian argues that Mohr is unable to present evidence upon which a reasonable jury could find intentional discrimination. This court agrees and concludes that Mohr fails to present enough direct evidence to support a jury's finding of intentional discrimination and fails to establish that Clarian's legitimate and non-discriminatory reason is pretext for intentional discrimination. Accordingly, summary judgment is GRANTED.
Mohr subsequently abandoned the ERISA claim. (Pl.'s Br. at 2 n. 1.)
A. Motions for Summary Judgment
The purpose of summary judgment is to "pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). Summary judgment is appropriate when there are no genuine issues of material fact, leaving the moving party entitled to judgment as a matter of law. FED. R. CIV. P. 56(C). The moving party must show there is no genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). A factual issue is material only if resolving the factual issue might change the suit's outcome under the governing law. Clifton v. Schafer, 969 F.2d 278, 281 (7th Cir. 1992). An issue is genuine if there is sufficient evidence for a reasonable jury to return a verdict in favor of the non-moving party on the evidence presented. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Baucher v. Eastern Ind. Prod. Credit Ass'n, 906 F.2d 332, 334 (7th Cir. 1990). "If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Anderson, 477 U.S. at 249-50.
Although intent and credibility are critical issues in employment discrimination cases, there is no special rule of civil procedure that applies only to them. See, e.g., Wallace v. SMC Pneumatics, Inc., 103 F.3d 1394, 1396 (7th Cir. 1997). In employment discrimination cases, as in all cases, the court must carefully view the evidence in the record in the light reasonably most favorable to the non-moving party and determine whether there is a genuine issue of material fact.
B. Local Rule 56.1
In accordance with Local Rule 56.1 Clarian submitted a Statement of Uncontested Material Facts with its motion for summary judgment. Mohr filed her responses to Clarian's Statement of Uncontested Material Fact and a Statement of Additional Material Facts In Dispute on March 1, 2001. Clarian subsequently filed a motion to deem admitted portions of its Statement of Uncontested Material Facts, arguing that Mohr failed to respond as required under Local Rule 56.1.
In fact, the contest between the parties as to which facts are genuinely in dispute and material to the issues was extremely tedious and picayune. Rather than trudge through the myriad of these skirmishes, several examples of the nature of these disputes will be discussed, followed by a general ruling and a detailed listing of the material facts not in dispute.
The requirements of Local Rule 56.1 are not intended to be an obstacle to trip the unwary. The parties should keep in mind that Local Rule 56.1 submissions should only contain "potentially outcome determinative" facts. S.D. IND. L.R. 56.1(h). The party opposing summary judgment must specifically controvert any statements of fact, with appropriate citation to the record, or they will be deemed admitted. S.D. IND. L.R. 56.1(f)(3), (g). These requirements expedite the court's consideration of a motion for summary judgment by requiring the parties to identify disputed facts precisely. Pike v. Caldera, 188 F.R.D. 519, 523 (S.D. Ind 1999). If the moving party leaves out material facts, the adverse party should not incorporate those facts into its response. The correct course of action for the non-moving party under Local Rule 56.1 is to respond to the moving party's statement and then include the other facts in their statement of additional material facts. S.D. IND. L.R. 56.1(c).
In this case the parties' statement of material facts and responses thereto complicated the court's duty to identify genuine issues of material fact. Here are a few examples:
15. In giving medicines, RNs are required to make dosage calculations that require her to convert medicines packaged in one measure to another measure. (Mohr Vol. II, pp. 286-288).
These examples are taken from Clarian's Reply to Plaintiff's Response to Defendant's Statement of Uncontested Material Facts and Response to Plaintiff's "Additional Material Facts in Dispute." Clarian filed a reply to Mohr's responses in accordance with Pike v. Caldera, 188 F.R.D. 519, 533-34 (S.D.Ind. 1999), which is included in these examples. These examples are only a few of the numerous problems observed by the court in the Local Rule 56.1 submissions.
RESPONSE: Disputed.
1. Nurses are required to convert some things from one unit to another. (Mohr Dep. Vol. 1, p. 286).
2. The majority of medicines are dispensed based on a unit dose making calculations generally unnecessary. (PRSOMF 325).
3. The vast majority of medicines given is by the unit and the calculation of doses occurs once a month. (PRSOMF 327).
4. Nurses are to contact the pharmacy if they have problems calculating a dose. (PRSOMF 326, 347-348).
REPLY: Mohr concedes that the matter is UNCONTESTED in her response No. 1, but then she begins to argue about how often she may be required to draw medicines. Moreover, in doing so, Mohr contradicts her own deposition testimony.
• Mohr testified that she has to give medicines every day. (Mohr Vol. I, p. 50).
• She has to draw up and measure controlled drugs. (Mohr Vol. I, p. 53).
• The pharmacy might not have something in stock and therefore send up larger units from which she had to draw the appropriate amount. (Mohr Vol. I, p. 53).
• Although the pharmacy sends unit doses, there are times that does not occur. (Mohr Vol. I, p. 54).
• Mohr stated non-unit doses come up from the pharmacy with "regularity." (Mohr Vol. I, p. 54).
• Medicines for a shot come in a vial and not necessarily in a unit dose. (Mohr Vol. II, p. 285).
• Mohr testified she had to convert one type of measure to another because of the way in which medicines can be packaged. (Mohr Vol. II, p. 286).
PRSOMF refers to Plaintiff's Response to Statement of Material Facts.
* * *
56. Mohr claims that the June 30, 1998 event occurred on a Friday and that she reported it the following Monday to her boss, Linda Alsip. (Mohr Vol. I, p. 148).
RESPONSE: Disputed.
1. Mohr stated that she believed that it was on a Friday. (Mohr Dep. Vol. I p. 147).
2. This does not state a material issue of fact.
REPLY: UNCONTESTED based on uncontradicted evidence. Whether Mohr believed it or not, she said the event occurred on Friday at pp. 147 and 153.
* * *
75. Ponsler also worked with Mohr for an hour and one-half on practice problems. (Mohr Vol. I, p. 190; Ponsler p. 72).
RESPONSE: Disputed to the extent that the time was an hour and a half.
REPLY: UNCONTESTED based on uncontradicted evidence. See Reply to No. 72 above.
First, several factual statements made in the Defendant's Statement of Uncontested Material Facts are not material or "outcome determinative." While it is helpful to know the context in which events occurred, it should be balanced and tapered in the interest of judicial economy. Second, there is no reason to quibble over every statement. This results in unnecessarily muddying the water and makes it more difficult for the court to determine whether there is a genuine issue of material fact. In SMF 15, discussed above, Clarian's statement of fact is clear, concise, and limited to a single factual proposition. S.D. Ind. L.R. 56.1(f). However, Mohr claims to dispute the fact that nurses are required to make dosage calculations while her response clearly shows that nurses make dosage calculations. Mohr also added other factual statements which relate to the issue of how frequently the nurses are required to make the calculations.
These extraneous statements of fact should not be in Mohr's response, but in the Plaintiff's Statement of Additional Material Facts. Mohr was simply elaborating on Clarian's statement, without ever controverting it. However, it is clear that this issue is not actually disputed; thus, this statement of material fact is deemed admitted.
SMFs 56 and 75, discussed above, show more instances in which Mohr unnecessarily disputed factual statements and failed to comply with Local Rule 56.1. In SMF 56, the Defendant clearly and concisely worded its statement of material fact. The statement should not be disputed simply because they did not qualify it by using the term "believe" as Mohr did during her deposition. Clarian's failure to use the word "believe" in the factual statement does not create a genuine issue of material fact. With respect to SMF 75, Mohr fails to comply with Local Rule 56.1 because there is no "specific citation to record evidence." S.D. Ind. L.R. 56.1(f)(2). Thus, these examples are deemed admitted. As a result of this type of quibbling the court had to spend a great deal of time trying to figure out which facts are actually disputed.
After closely examining the Plaintiff's Responses to Defendant's Statement of Material Facts all of the facts are deemed admitted except ones that were sufficiently controverted, with appropriate citation to the record, by Mohr. The facts the court found to be sufficiently in dispute include statements: 23, 28, 46, 48, 49, 50, 54, 55, 65, 66, 67, 68, 72, 73, 74, 76, 80, 87, 94, 95, 98, 99, 100, 104, 111, 112, 114, 116, 117, 119, 121, 122, 123, 126, 127, 129, 130, 134, 136, 137, 138, 142, 150, 151, 152, 153, 154, 157, 158, 160, 164, 165, 166, 167, 168, 170, 172, 173, 174, 175, 191, 192, 193, 195, 196, 456, 461, 462, 474, 475, 477. Mohr objected to statements 86, 88, 93, and 131. Clarian agreed with the Plaintiff's responses to statements 20, 36, 71, 78, and 140.
In short, the court will now rule generally on Clarian's motion to deem portions of its SMF admitted. The court grants the motion and deems admitted (1) facts which are uncontested; (2) facts, which the Plaintiff purports to dispute, where the response shows agreement with the Defendant's statement; and (3) facts in which the Plaintiff does not specifically controvert the Defendant's statement of material fact or have appropriate citation to the record. The extent to which the court has determined undisputed facts to be material will be reflected by their listing in the section of this entry which follows. If a fact is not listed, the court did not consider it to be material.
In addition the court GRANTS Mohr's Motion to Strike Defendant's Proposed Findings of Fact, Conclusions of Law and Entry of Summary Judgment. The Defendant's Proposed Findings of Fact, Conclusions of Law and Entry of Summary Judgment is superfluous and unnecessary and adds more weight to an already heavy record. The court examined the entire record and exercised its own independent judgment in deciding to grant the motion for summary judgment.
Clarian's Motion to Strike Portions of Affidavits of Mary Sue Mohr, Barbara Hewitt, and Rosa Harris is DENIED, because an affidavit may be used to clarify and supplement deposition testimony. See Babrocky v. Jewel Food Co., 773 F.2d 857, 861-62 (7th Cir. 1985).
However, the court will strike paragraphs ten (10) and eighteen (18) of Mary Sue Mohr's affidavit since the information asserted is based on hearsay and not personal knowledge. Paragraph ten of Mohr's affidavit states: "I informed Linda Moore and Linda Alsip that other nurses were not able to calculate the dosage questions and I never received a response." Paragraph 18 provides: "I never received a response from Linda Moore nor any employee of the hospital after I informed Moore that other nurses on C-4 could not [answer] dosage calculation questions." Mohr has no personal knowledge of the other nurse's ability to calculate the problems, and must have been told this information from other C-4 nurses. Since the paragraphs are built upon a foundation created by hearsay, these two paragraphs are stricken from the affidavit. However, this does not damage Mohr's case since Barbara Hewitt and Rosa E. Harris both aver in their respective affidavits that they had difficulty or could not solve all of the dosage calculations that Mohr was required to solve correctly.
C. Undisputed Material Facts
The evidence taken in the light reasonably most favorable to Plaintiff Mohr shows the following.
Mohr was employed as a registered nurse at Clarian since 1977. From 1988 to 1998 Mohr worked in behavioral care units. In 1995, when the hospital began a period of downsizing, Mohr worked in unit C-3 under the supervision of Karen Loney. Unit C-3 was subsequently closed and everyone had to find a new job. Mohr ended up in unit C-2 under Kathy Donlan's supervision. Because the reorganization was an ongoing process, C-2 was eventually closed as well. Mohr, along with everyone else, was asked to list the positions she preferred. After listing the positions she wanted, Mohr could interview for her preferences as long as they were available. Mohr met with Karen Loney and Kathy Donlan who told her that Fran Miller, the Director of Nursing in psychiatry, would post open positions shortly, however they felt that Mohr was not qualified for any of the open positions. Mohr asked whether there were any open positions in the access center. Mohr claims that Kathy Donlan and Karen Loney implied that she would be a performance problem and stated that jobs in the access center were for young nurses. During 1995, Mohr complained of age discrimination to Patty Brooks of Human Resources. Later, Fran Miller spoke to Mohr and told her not to be angry with Karen Looney or Kathy Donlan because she told them to find employees that could be deleted, and that there was going to be a new breed of nursing.
Eventually, Mohr began to work in a mental health unit known as C-4. At unit C-4 acute and chronic patients are housed, including patients from group homes, patients mildly depressed following surgery, AIDS patients, patients with chemical dependencies, geriatric patients, and others. C-4 handles up to 30 patients. While Mohr worked at C-4 her direct supervisor was Linda Alsip. Alsip's official title was Patient Care Manager, in charge of third shift. Linda Alsip first met Mohr when she started working in C-2 and remained her supervisor when C-2 became C-4. Alsip was supervised by Fran Miller, the Director of the nursing units in psychiatry.
As a registered nurse assigned to particular patients, Mohr was responsible for giving them medication and reading their doctor's orders. Providing medication to patients was a daily activity. In measuring dosages, nurses are required to make calculations which convert medicine from one unit measure to another (such as converting milligrams into cc's). Clearly, it is important for patients to receive the correct dosage of medicine ordered by the patient's doctor.
Mohr worked on June 30, 1998 with Rose McNelis, Suzanne Bachman, and others. On that day, Mohr was preparing to draw Haldol, a drug that is given to calm a patient. Haldol can cause death if too much is given. The doctor ordered two milligrams of Haldol. Haldol was packaged in vials which contained five cc's or 25 milligrams per vial. Mohr had checked out two vials of Haldol from Pixis (a machine which dispenses medicine after a security code is entered). As Mohr was preparing to draw the medicine out of the vial with a syringe, Rose McNelis walked into the medicine room. Mohr was using a five cc syringe. McNelis asked Mohr what she was doing and when Mohr answered that she was drawing Haldol, McNelis asked why she was using such a large syringe. Immediately, Mohr laid down the syringe and asked McNelis for help in checking the medications. McNelis told Mohr to use an insulin syringe. Even though two milligrams of Haldol is equivalent to four tenths of one cc, after Rose McNelis left the room Mohr drew a full cc. Mohr was still unsure about the amount of medicine, so she decided to have it checked. McNelis reentered the room and Mohr asked for her help, Mohr said that she lost confidence in herself. McNelis checked the amount of medicine Mohr had drawn and told her it was too much. While McNelis was in the medicine room, Mohr asked her to check a dose of liquid morphine that Mohr had poured. McNelis told Mohr she had too much, they used a syringe to measure it and found there was a little left over after drawing out 2.5 cc's.
Soon after the June 30, 1998 event, Mohr went to talk with her supervisor, Linda Alsip, and report the incident. However, McNelis already reported the incident to Alsip. Alsip took Mohr off medication duty, which prevented Mohr from giving medication to patients, even though Mohr never gave the wrong medicine or the wrong amount of medicine to a patient. Mohr stated in her deposition that being taken off medications was the right thing to do because she lost confidence in herself at that point. Mohr told Alsip that she wanted a review of fractions and calculations to sharpen her skills.
After the incident was reported to Alsip, she called Fran Miller. Miller told Alsip to investigate and get documentation. A few days later, Alsip reported back to Miller with documentation from Rose McNelis. Miller told Alsip to immediately address the situation. Alsip drafted a written performance plan and collaborated with Miller on the plan. As part of the plan Mohr was given four hours of precepted time — precepted time entails evaluating someone's skill in a clinical setting. Mohr went to the education department and received practice materials and help from Kristy Ponsler, an instructor in the central nursing education area.
Afterwards, Alsip told Mohr that she would assign Margaret Delks, a RN responsible for education in the psychology department, to assist with Mohr's precepted time. During the four hours of precepted time, Mohr and Delks only drew up one medicine. Mohr drew up the medicine incorrectly. Mohr and Delks also worked on basic medicine administration including tablets, liquids, and the use of syringes. Ponsler also worked with Mohr on some practice conversion problems. Mohr studied the practice exams "a lot." Mohr called Ponsler for help in setting problems up several times. Mohr transposed numbers which alarmed Ponsler since such an error could result in an erroneous dosage.
Mohr objects to this statement of material fact and argues that it is hearsay. However, this objection is overruled because Mohr admitted to drawing up the wrong amount of medicine in her deposition. (Mohr Dep. Vol. I at 183-84.)
Mohr was having problems setting up the formula for the dosage calculation. Mohr also had problems using a calculator because she did not know which number to input first. By August 28, 1998, Mohr had completed all remedial steps of the July 21 corrective action performance plan. On August 28, 1998, Mohr took the first dosage calculation examination. Mohr missed five. After the first test, Mohr studied some more. During this time Mohr may have talked to Ponsler for more help. On September 4, 1998, Mohr took a second dosage calculation examination. Alsip gave Mohr the results of the second examination. Mohr missed five again. Ponsler said that between the first and second examination, Mohr showed no signs of improvement.
After taking the second examination, Mohr prepared another "plan" on September 24, 1998. Her plan was to review the tests, practice, ask questions, and take the test again. Mohr continually asked Alsip about rescheduling another test and what they were going to do. Mohr asked Delks for more help, but Delks was rude and offered only 30 minutes of her time. Miller called Ponsler and told her that she was not to help Mohr anymore or answer any of her questions. Mohr went to Ponsler and Ponsler informed Mohr that she was not to help her anymore. Mohr was not allowed to take the dosage calculation test again. Mohr claims that she should have been allowed to take the test at least three times because other nurses were permitted to do so. Alsip testified that no practicing nurse was allowed to test more than once because they never had a case like this before. No director had ever reported a problem with a nurse's dosage calculation abilities after the nurse was moved from orientation into the system. However, new nurses in orientation were allowed to take the test several times. The few nurses who took the test the third time passed it with one exception — age 45 — who passed after being allowed by her department (a different department than Mohr's) to take the test a fourth time. From 1997 to 1999, approximately 20 new nurses out of 100 had to take a third dosage examination.
After Mohr took the test a second time, Miller met with HR. HR reviewed Mohr's personnel file and discussed it with Miller at the meeting. With regard to Mohr's current inability to calculate dosages, Miller felt that Mohr had been given enough time. Miller and HR discussed options including terminating Mohr or demoting her to a position that would allow her to remain in the department without giving medicine. Miller and HR also discussed the availability of such jobs in the department.
Mohr objects to this statement of material fact as hearsay, but the objection is overruled because there is no "statement" as defined in Federal Rules of Evidence 801(a).
On September 29, 1998, Mohr came to work and noticed that she was not on the schedule. Mohr met with Miller and Alsip. Miller decided that Mohr could no longer be a registered nurse in her department, but she did not want Mohr to "pack her bags." Miller told Mohr that she had been struggling with what to do. Miller said that suspension was not a viable option. One option might be for Mohr to take a program tech position. However, Miller said no program tech positions were available, but she could hire Mohr as a supplemental tech (supplemental tech positions do not have any guaranteed hours and do not receive benefits). Miller also asked Mohr if she could think of any other options. Mohr asked to retake the dosage examination, but Alsip said she could not and to think of other options. Mohr then asked whether she was terminated and Miller told her to take a couple of days to come up with other options. Miller told Mohr to get back with her that Friday (the meeting was on a Tuesday). Mohr claims she was terminated because "in her mind, there were no options left." On Friday, Mohr received a voice-mail message from HR that they wanted to talk to her about further options. Mohr continued to receive pay after September 29, 1998. The payments continued until October 10, 1998. Mohr then filled out the paperwork and elected to retire. Other relevant facts are noted below, keeping in mind the standard that applies on a summary judgment motion.
D. Discussion
The ADEA "broadly prohibits arbitrary discrimination in the workplace based on age." Lorillard v. Pons, 434 U.S. 575, 577 (1978). The ADEA makes it "unlawful for an employer . . . to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's age." 29 U.S.C. § 623(a)(1). In this case there is a dispute over whether Mohr was terminated or voluntarily retired. If she voluntarily retired, she would not have an actionable claim. However, for the purposes of this discussion, the court assumes, without deciding, that Mohr was terminated.
At this stage in the litigation Mohr's date of birth is disputed. Plaintiff argues that she was born on April 18, 1933, while Clarian argues that she was born on April 18, 1934. (Def.'s Resp. to Pl.'s "Additional Material Facts in Dispute" at 207; Mohr Dep. Vol. I at. 5.) However, the ADEA protects employees 40 years of age and over. (Id. at § 631.) Thus, it is clear that Mohr is in the protected class under the ADEA using either date of birth.
For Mohr to show a violation of the ADEA, she must demonstrate that her age was "a determining factor" in Clarian's decision to terminate her employment. Wolf v. Buss (America) Inc., 77 F.3d 914, 919 (7th Cir. 1996). Mohr need not demonstrate that age was the sole reason for her discharge; however, she need only prove that but for Clarian's motive to discriminate against her on the basis of her age, she would not have been terminated. Id. There are two manners of proof available to an employee in this regard. First, she may offer evidence to "directly" show age discrimination. Perdomo v. Browner, 67 F.3d 140, 144 (7th Cir. 1995). The other available method of proof is the familiar indirect burden-shifting method under McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) and its thousands of progeny. Mohr attempts to prove intentional discrimination by both methods, and the court will consider each.
The Seventh Circuit stated: "The so-called `direct' method does not necessarily require direct evidence of discrimination, such as an employer's open acknowledgment of racial hostility; `[d]ifferent kinds and combinations of evidence can create a triable issue of intentional discrimination,' including direct and circumstantial evidence. Perdomo v. Browner, 67 F.3d 140, 144 n. 1 (7th Cir. 1995) (quoting Troupe v. May Dep't Stores Co., 20 F.3d 734, 736 (7th Cir. 1994)). The Seventh Circuit also discussed the relevance of remarks that may show a discriminatory purpose. It stated: "When proceeding under the direct proof method, in order for allegedly discriminatory remarks to `qualify as direct evidence of discrimination, the plaintiff must show that the remarks were related to the employment decision in question." Robin v. Espo Eng'g Corp., 200 F.3d 1081, 1089 (7th Cir. 2000) (quoting Fuka v. Thomson Consumer Elecs., 82 F.3d 1397, 1403 (7th Cir. 1996)). The Seventh Circuit also stated:
Indeed, "conversational jabs in a social setting" do not constitute evidence of intent to fire for an impermissible reason. See Hoffman, 144 F.3d at 1122. Thus, without more evidence, we will not read invidious intent into isolated comments that, standing alone, are hardly offensive and remote in time to the discharge.
Id. With these principles in mind, the court will now examine the evidence proffered in this case.
The direct evidence Mohr proffers includes: (1) Linda Alsip told Barbara Hewitt in the summer of 1998 that she liked "youth better" and "younger nurses have more energy and like to do more," (PSAMF 413-14); (2) in 1995 Fran Miller told Mohr "younger nurses were better suited" for the positions in which Mohr was interested (PSAMF 230); (3) in 1995 Kathy Donlan told Mohr that there were not going to be a lot of positions left and that due to Mohr's age they were concerned (PSAMF 220); and (4) in 1995 Fran Miller told Mohr not to be angry with Karen Looney or Kathy Donlan because she told them to find employees that could be deleted, and that there was going to be a new breed of nursing (PSAMF 229). Clarian admits that the last statement was made but disputes the other three facts. The court concludes that these factual disputes do not create a genuine issue of material fact. A factual issue is material only if resolving the factual issue might change the suit's outcome under the governing law. Clifton v. Schafer, 969 F.2d 278, 281 (7th Cir. 1992). Even if all of these remarks were made they would not change the suit's outcome under the governing law. Remarks two, three, and four are remote in time and unrelated to Mohr's termination on September 29, 1998. Even the most recent remarks by Alsip in 1998 were made several months before Morh's departure from employment. In fact, Mohr found a position in 1995. Mohr also failed to establish a nexus between any of the remarks and a decision to terminate Mohr in 1998. See Fuka v. Thomson Consumer Elecs., 82 F.3d 1397, 1403-04 (7th Cir. 1996) ("before seemingly stray workplace remarks will qualify as direct evidence of discrimination, the plaintiff must show that the remarks `were related to the employment decision in question'"); Fortier v. Ameritech Mobile Comm., Inc., 161 F.3d 1106, 1113 (7th Cir. 1998) (comments that were not made "contemporaneous with the discharge or causally related to the discharge decision making process" are insufficient to create a triable issue of material fact regarding age discrimination). Mohr argues that the statements were related to the decision to discharge her, but she fails to demonstrate any connection. A mere conclusory statement that there is a connection is insufficient. Aside from these remarks no other evidence was presented to directly prove discrimination.
Plaintiff's Statement of Additional Material Facts in Dispute will hereinafter be abbreviated PSAMF.
Since Mohr could not "directly" prove discrimination, the court must examine the evidence under the McDonnell Douglas burden shifting approach. Under that method of proof, Mohr must first come forward with evidence of a prima facie case showing: (1) she belongs to a protected class; (2) she was qualified for her position and performed satisfactorily; (3) notwithstanding her qualifications and performance, she suffered an adverse employment action; and (4) a similarly situated individual outside the protected class was treated more favorably. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973); Bragg v. Navistar Int'l Transp. Corp., 164 F.3d 373, 376 (7th Cir. 1998).
Once the plaintiff presents a prima facie case of discrimination, then the burden of production shifts to the defendant to articulate a legitimate, non-discriminatory reason for her termination. Clay v. Holy Cross Hospital, 253 F.3d 1000, 1005 (7th Cir. 2001). If the defendant proffers a legitimate reason, the inference of discrimination disappears and Mohr must come forward with evidence that would allow a reasonable jury to find that Clarian's proffered reason is pretext for intentional discrimination. Id. The "ultimate burden to prove intentional discrimination" remains with the plaintiff. Id.
The court has serious doubts about Mohr's ability to establish the second and fourth elements of the prima facie case. However, even if the court assumes Mohr established a prima facie case, her ADEA claim still fails as a matter of law because she failed to produce evidence upon which a reasonable jury could conclude that Clarian's alleged reason for terminating her was pretext for age discrimination. The Seventh Circuit recently explained:
Pretext "means a dishonest explanation, a lie rather than an oddity or an error." Kulumani v. Blue Cross Blue Shield Ass'n., 224 F.3d 681, 685 (7th Cir. 2000). "A `pretext for discrimination' means more than an unusual act; it means something worse than a business error; `pretext' means deceit used to cover one's tracks." Id. at 684. "On the issue of pretext, our only concern is the honesty of the employer's explanation." O'Connor v. DePaul University, 123 F.3d 665, 671 (7th Cir. 1997). Thus, even if Seliga's reasons for Clay's termination were "mistaken, ill considered or foolish, so long as [the employer] honestly believed those reasons, pretext has not been shown." Jordan v. Summers, 205 F.3d 337, 343 (7th Cir. 2000).
Clay v. Holy Cross Hospital, 253 F.3d at 1005-06. "To prove pretext, [plaintiff] must present facts that cast doubt on the [defendant's] specific reasons for [her] termination." Id. at 1007.
Clarian only offered one legitimate and non-discriminatory reason, it claims that Mohr was terminated because she was unable to correctly calculate medicine dosages and appeared unable to remove her deficiency. Mohr argues that the evidence shows Clarian's reason is pretextual. Mohr argues that she never gave a patient the wrong amount or type of medication. Clarian felt that Mohr's mistake was so fundamental and remedial that for the sake of the patients it was imperative to remediate Mohr in the practice of calculating and administering medication. However, Mohr points out, when other nurses actually administered the wrong amount or type of medication they were neither terminated nor even sent to the clinical educator for some assistance nor placed on a corrective improvement plan. (PSAMF 349, 432, and 433; Pl.'s Confidential Ex. 12.) The errors noted in the record are instances of giving an extra dosage of medicine and errors resulting from transcribing or entering an order incorrectly. The errors in the record are fairly harmless and did not result in injury to the patients. Clarian could reasonably see these errors differently from Mohr's inability to calculate dosages.
Clarian could view Mohr's deficiency as more fundamental since she is simply unable to calculate medicine dosages, which could result in a greater number of errors or more serious errors than misplacing or transcribing an order incorrectly. The court does not sit as a super-personnel department, weighing the prudence of the employer's decision. Wollenburg v. Comtech Mfg. Co., 201 F.3d 973, 976 (7th Cir. 2000). The critical question is whether Mohr can show that the employer's reason is unworthy of belief. She has not done so.
Mohr also argues that Clarian's proffered reason is pretext because other nurses in the department could not calculate the questions Mohr was asked. (PSAMF 353, 355-57.) Even a former clinical educator for Alsip's unit could not calculate the questions without appropriate review. (PSAMF 340-42.) However, no director had ever reported a problem with a nurse's dosage calculation abilities after the nurse was moved from orientation into the system. The Plaintiff has not shown that Clarian was aware that these other nurses lacked the ability to make these calculations prior to, or at the time, that Mohr's deficiencies were being addressed. In fact, Miller was not aware of any nurse ever having trouble drawing medications. Mohr said she lost confidence in her abilities. Even after tutoring and self-study she was unable to correct the situation. The Plaintiff failed to produce evidence that the nurses who now claim the inability to do calculations could not correctly answer the problems after a review, tutoring, and self-studying of the type made available to Mohr. There is no evidence in the record of the type or number of problems with which other nurses in C-4 would have difficulty. There is no evidence in the record to compare how other nurses would have done if they were required to take the test again. The evidence does not show that Clarian's reason was a dishonest explanation or lie.
Mohr's comparison of her situation to that of new nurses entering on duty is in apposit. It is not unreasonable for Clarian to expect that an experienced practicing nurse could pass a dosage calculation test in one or two attempts. It is also not unreasonable for Clarian to allow newly-hired, inexperienced nurses three (and in one instance, four) attempts at passing the test. If Mohr has been a newly-hired nurse and was refused a third test, a comparison to other newly-hired nurses would have been appropriate.
Mohr also relies on the stray remarks the court discussed earlier as additional evidence of pretext. Stray remarks may be relevant to the question of whether an employer's proffered nondiscriminatory reason is pretextual. See Indurante v. Local 705 International Brotherhood of Teamsters, 160 F.3d 364, 367 (7th Cir. 1998). "Still, even under the indirect approach, stray remarks must be considered in the context of all the evidence, and may not overcome summary judgment if they stand alone as evidence that might support an inference of pretext." O'Connor v. DePaul Univ., 123 F.3d 665, 672 (7th Cir. 1997) (affirming summary judgment for employer where decision-makers had called other employees "old" and had used profanity in reference to them). See also Indurante, 160 F.3d at 368 ("We have never held that a discrimination case must go to a jury if a plaintiff is able to supplement stray remarks with any other probative evidence whatsoever."). In this case, the stray remarks of Linda Alsip, Kathy Donlan, and Fran Miller do not raise a genuine issue of material fact on pretext. The comments were made in 1995 and in the summer of 1998 and is not at all related to Mohr's discharge. Without additional evidence of pretext, summary judgment is appropriate.
E. CONCLUSION
For the foregoing reasons, Clarian is entitled to judgment as a matter of law on all of the claims stated in the Complaint. Summary Judgment is GRANTED to Defendant Clarian, and final judgment shall be entered accordingly.
ALL OF WHICH IS ORDERED this 14th day of December 2001.