Opinion
No. 99-1050-CB-L.
December 12, 2000
FINAL JUDGMENT
Pursuant to separate order entered this date granting defendant's motion for summary judgment, it is hereby ORDERED, ADJUDGED and DECREED that the claims of the plaintiff, Barbara Harrison, against the defendants, Mobile Infirmary Association and Infirmary Health System, Inc. be and hereby are DISMISSED with prejudice.
MEMORANDUM OPINION and ORDER
This matter is before the Court on a motion for summary judgment filed by defendants Mobile Infirmary Association and Infirmary Health System, Inc. wherein the defendants argue that plaintiff Debra L. Harrison cannot prevail in this age discrimination action. Upon review of defendants' motion, the briefs filed by the parties and all evidence on file, the Court finds that the motion for summary judgment is due to be granted because plaintiff has failed to present sufficient evidence from which a jury could find that her termination was the result of age discrimination.
Facts
Plaintiff Debra L. Harrison began her employment with Mobile Infirmary in 1971 as a registered nurse. Except for a few months' time when she left the defendants' employ in 1973, plaintiff was employed by the Infirmary until 1998. From 1971 until 1991, plaintiff worked as a staff nurse in several departments throughout the hospital. In June 1991, plaintiff applied for and received a transfer to a position in the Utilization Review Department as an "RN Coordinator." Plaintiffs job included reviewing clinical information contained in a patient's records and communicating with the third-party payors of medical expenses regarding payment and coverage issues. Each coordinator was assigned to certain floors of the hospital. Plaintiffs patients consisted primarily of cardiac patients and patients recovering from surgical procedures. On occasion, in addition to her own patients, a coordinator would be required to cover patients of other coordinators who were either absent or on vacation. Plaintiffs supervisor in the Utilization Review Department was Renee Boltz.
The parties have made no distinction between defendants Mobile Infirmary Association and Infirmary Health System, Inc. The Court will collectively refer to these defendants as "Mobile Infirmary" and will assume, for purposes of this motion, that both defendants were plaintiffs employer.
In 1992, the position of RN Coordinator was changed to Quality Advocate and plaintiffs job title was changed to RN Quality Advocate. The duties of Quality Advocate were expanded beyond the role of RN Coordinator. The Quality Advocate position was essentially and office based RN who worked with the physician advisor, the Admissions Department, and the business office and communicated with insurance companies regarding payment of services. The job duties of the RN Quality Advocate included utilization review, infection control and discharge planner. Infection control required that the Quality Advocate review charts to identify those patients with infections that needed to be placed in the isolation ward, to coordinate the move to isolation and to monitor the patient's condition in isolation. Discharge planner duties required that the nurses monitor patients' progress and make necessary arrangements to move patients to another level of care when ready.
In early 1995, the Infirmary developed a case management program. Case management is a term used to describe a total patient care system that focuses on the coordination of care services for patients to ensure care is provided pre and post-hospitalization. Initially, four of the previous RN Quality Advocates were reassigned to positions as case managers. Plaintiff did not apply for this initial reassignment. The case management program proved to be successful and was expanded in 1996. Eventually, the RN Quality Advocate position was eliminated with almost all of those individuals becoming case managers.
The job duties of a case manager included traditional Utilization Review duties plus duties involving communication and coordination with patients, physicians, families, the Infirmary social service office, and outside entities to ensure that the patient's needs were met in the hospital and after discharge. The case manger was requires to make a clinical assessment of each patient, to identify the needs of the patients, to collaborate with the various disciplines involved with the patient's care, to coordinate the care services for that patient, to be aware of and to understand the patient's health care plan benefits, to manage the patients' needs in an aggressive and proactive manner and to act as a facilitator for the case management role. In order to effectively coordinate services to patients, case mangers were required to lead weekly interdisciplinary team meetings to discuss each patient, to identify the type of insurance in place, to identify the patient's daily activities and physical limitations, and to determine whether the patient was ready for discharge. These meetings were attended by various care givers including physical therapy, dietary, pharmacy and hospital social services. The case manager was in charge of leading the meeting and implementing the plans made at these meetings. Case managers were required to document that patient's information on an MPPR form (multi-disciplinary progress note), a documentation tool used by the various disciplines in the hospital to communicate with each other about the patient's progress. The MPPR form is kept in the patient's chart.
In June 1996, plaintiff became the last Quality Advocate to make the transition to case manager and was assigned to Unit Four Southeast, a medical/surgical unit. In October 1996, City Myer was hired as Manager of the Case Management Department and became plaintiffs supervisor.
Once the case management program was implemented, an orientation was held for the case mangers. Case mangers were also provide training via weekly meetings where topics including discharge planning and insurance were discussed and specific cases were reviewed. In addition, case mangers were provided with in-service training, including training on the development of critical pathways, and with a case management manual for additional guidance. Finally, case managers were encouraged to select days to work specifically with social workers.
From October 1996 to March 1997 case mangers primarily conducted chart utilization review, conducted focus studies for quality management, worked on infection control, documented on MPPR and facilitated multi-disciplinary team meetings. In March 1997, case managers' duties were expanded. Case managers were required to handle clinical cases, including on-call responsibilities. In addition, case mangers were required to have greater involvement with the multi-disciplinary team meetings and to provide increased documentation on the MPPR forms. Case mangers were to be the facilitators for patient and family and to manage the various disciplines providing patient care.
In May 1997, plaintiff received her first performance evaluation as a case manager. The evaluation covered a period from October 1996 to March 1997. Plaintiff was told that she needed improvement in several critical areas, including communication, leadership and assessment techniques. This evaluation reflected that plaintiff had been counseled in October 1996 by Carol Krogsgard, who was plaintiffs supervisor at that time, regarding the need for plaintiff to increase her participation with staff nurses and physicians and the need for plaintiff to become more assertive in identifying and maximizing opportunities. During the May 1997 evaluation, plaintiff was told that she needed to improve her communication skills, that she need to take a more active role in talking to doctors and social services workers, that she needed to be more of a leader team meetings and that she needed to continue learning assessment techniques.
Between May 1997 and April 1998, Cindy Meyer counseled plaintiff several times regarding ways in which plaintiff could improve her performance. Meyer discussed with plaintiff the importance of documentation in the plaintiffs chart and discussed the lack of adequate documentation in several of plaintiffs patients' charts. Despite repeated reminders, plaintiff continued to provide inadequate documentation.
In November 1997, one of plaintiffs patients was discharged and sent home without a care giver in the home to assist the patient. It was plaintiffs responsibility as case manager to communicate with the family to ensure that someone would be at home to assist the patient after discharge. Plaintiff was counseled after this incident and reminded of her responsibilities as case manager.
On several occasions plaintiffs poor job performance would have adversely affected patients had others involved in patient care not intervened. Meyer received calls from social workers, the nurse manager on plaintiffs unit and home care coordinators who expressed concern that patient plans had not been put in place appropriately. In addition, the physician advisor expressed concerns to Meyer about plaintiffs ability to do her job.
Meyer counseled plaintiff several times about her job performance. In January 1998, Meyer talked with plaintiff about her lack of leadership at team meetings and suggested that plaintiff attend another case manager's team meeting to see how that meeting was conducted. Another problem occurred in February 1998 when Meyer asked plaintiff about the status of a patient. Plaintiff was unable to provide answers to Meyer regarding the patient's status and needs. Plaintiff told Meyer that hospital social services was following the patient so she did not have to do so. At this time, Meyer counseled plaintiff about her need to improve assessment and organizational skills. On March 12, 1998, Meyer met with plaintiff and explained that her job required that she work proactively to make clinical assessments and to follow through with coordination of services. Less than two weeks later, however, plaintiff was counseled again for her failure to provide adequate documentation and for her failure to communicate with the patient's family.
As a result of her performance problems, plaintiff received an unsatisfactory evaluation for the period April 1997 through March 1998. In the six areas of "Job Accountability Performance" included on her evaluation, plaintiff received one "unsatisfactory" rating and three "minimum acceptable" ratings. The only positive ratings plaintiff received — one "exemplary" and one "accomplished" — were based on the performance of the entire department. The "Overall Performance Summary" section of the evaluation, stated:
[Plaintiff] has not shown the amount of improvement during the past year we had hoped for. She continues to have difficulty with proactive discharge planning for the more "routine" patients. She has been counseled by the manager of the department six times in the last 6 months concerning performance issues. Generally, [plaintiff] has difficulty identifying the specific problems which may affect patients after discharge. She tends to wait for specific physician orders before determining possible options for the difficult patients or until someone else tells her exactly what she should be doing to prepare the patient for discharge. During last year's performance evaluation, [plaintiff] was told she needed to do the following: (1) to continue working on communication skills to identify patient needs more clearly for other disciplines[;] (2) [t]o continue to develop team leadership abilities to affect MDT functionality[;] (3) [c]ontinue learning good assessment techniques for both [sic] patient's clinical, social and other health care needs in order to facilitate the discharge planning process. These goals have not been met throughout this year with multiple sessions between [plaintiff] and Cindy Meyer. Cindy has provided much one/one education and assisted [plaintiff] with difficult cases when requested, but generally, very late in the patient's stay.
(Pl.'s Ex. 4) As a result of the evaluation plaintiff was give five weeks to demonstrate improved performance and was informed that failure to do so would result in the loss of her position as a case manager.
During this five-week period, several accommodations were made for plaintiff. She was reassigned from Four Southeast, which she had complained was too difficult, to MICU/SICU. Discharge planning in MICU/SICU involved less responsibility because patients leaving the unit would not go directly home but would go to another level of care within the hospital. Plaintiff was allowed to follow another case manager for one week to observe her techniques, and during that week plaintiffs case load was handled by other case managers. Plaintiffs supervisor, Cindy Meyer, worked with her one-on-one at least an hour each week. In an effort to assist plaintiff in improving her skills, Meyer accompanied plaintiff to her unit, reviewed patient's charts and assisted plaintiff with patient interviews.
Although plaintiff failed to show improvement, the probationary period was extended for an additional two weeks. This was done because Meyer felt that she had not had provided enough one-on-one training during the five-week period due to other demands on her time. During this extended period, Meyer worked one-on-one with plaintiff two or three times per week. Plaintiff showed no improvement, however, and was terminated from her position as case manager. Plaintiff was given two weeks of earned time off so that she could attempt to find another position within the Infirmary before her termination became effective.
Plaintiffs termination became effective June 12, 1998. At that time, plaintiff was forty eight years old. Plaintiff was subsequently replaced by a younger individual.
Meyer testified that plaintiff was terminated for "not being able to perform her job accountability — accountabilities." (Meyer depo. p. 52.) According to Meyer, plaintiff was unable to comprehend and perform her job responsibilities, such as, assessing patients, identifying their needs and coordinating their case. ( Id. p. 103.) At the time of the termination, Meyer told plaintiff that she lacked "critical thinking skills." ( Id. p. 52.) Meyer defined "critical thinking skills" as "basically what is required for a case manager to perform her job. It means identifying all the pieces . . . putting them all together, coordinating all these services, collaborating with the various disciplines." ( Id. at 52-53.)
On November 29, 1999, plaintiff brought this action alleging that she had been terminated on account of her age in violation of the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq.
Conclusions of Law Summary Judgment Analysis
Summary judgment should be granted only if "there is no issue as to any material fact and the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). The party seeking summary judgment bears "the initial burden to show the district court, by reference to materials on file, that there are no genuine issues of material fact that should be decided at trial." Clark v. Coats Clark, Inc., 929 F.2d 604, 608 (11th Cir. 1991). Once the moving party has satisfied its responsibility, the burden shifts to the nonmoving party to show the existence of a genuine issue of material fact. Id.
"If the nonmoving party fails to make `a sufficient showing on an essential element of her case with respect to which she has the burden of proof;' the moving party is entitled to summary judgment." Id. at 1438 (quoting Celotex Corp. v. Catrett, 477 U.S. 317 (1986)) (footnote omitted). "In reviewing whether the nonmoving party has met its burden, the court must not weigh the evidence or make credibility determinations and must draw all inferences in favor of the nonmoving party." Tipton v. Bergrohr GMBH-Siegen, 965 F.2d 994, 999 (11th Cir. 1992).
It is important to note that the factual disputes raised by the nonmoving party must be both material and genuine. "As to materiality, the substantive law will identify which facts are material. Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). "Genuine disputes are those in which the evidence is such that a reasonable jury could return a verdict for the non-movant. For factual issues to be considered genuine, they must have a real basis in the record." Mize v. Jefferson City Bd. of Educ., 93 F.3d 739, 742 (11th Cir. 1996) (quoting Hairston v. Gainesville Sun Publishing Co., 9 F.3d 913, 918 (11th Cir. 1993)).
ADEA Framework
Employment discrimination claims under the ADEA and Title VII are governed by the same analytical framework. See e.g., Early v. Champion Internat'l Corp., 907 F.2d 1077, 1081 (11th Cir. 1990). The guiding principles are succinctly set forth as follows:
Because direct evidence of discrimination can be difficult to produce, the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), created a framework on the burden of production and order of presentation of proof to analyze circumstantial evidence of discrimination. See Nix v. WLCY Radio/Rahall Communications, 738 F.2d 1181, 1184, reh'g denied, 747 F.2d 710 (11th Cir. 1984) (noting that McDonnell Douglas framework is valuable tool for analyzing disparate treatment cases). To prove discriminatory treatment through circumstantial evidence: (1) a plaintiff must first make out a prima facie case, (2) then the burden shifts to the defendant to produce legitimate, nondiscriminatory reasons for the adverse employment action, and (3) then the burden shifts back to the plaintiff to establish that these reasons are pretextual. McDonnell Douglas, 411 U.S. at 802-04, 93 S.Ct. at 1824-25.Mayfield v. Patterson Pump Co., 101 F.3d 1371 (11th Cir. 1996)..
In this case plaintiff relies solely on circumstantial evidence of discrimination.
Analysis of Plaintiff's ADEA Claim
Defendants contend that they are entitled to summary judgment, first, because plaintiff cannot prove a prima facie case of discrimination and, second, because plaintiff cannot demonstrate that the defendants' legitimate, nondiscriminatory reasons for termination are merely pretext for age discrimination. The Court need not consider whether plaintiff can prove a prima facie case since plaintiff has presented no evidence from which a jury could infer that the defendants' reasons for terminating plaintiffs employment as a case manager were pretextual.
Plaintiff was terminated as a case manager because of deficient job performance. Cindy Meyer, the supervisor who recommended her termination, attributed plaintiffs deficient performance to a "lack of critical thinking skills" necessary to perform her job. More specifically, Meyer found that plaintiff was unable to assess patients, to identify their needs, to coordinate their care, and to work with the various disciplines that provide the patient's care. Meyer gave some examples of plaintiffs deficiencies. On one occasion in November 1997 plaintiffs patient was discharged and sent home where there was no one to take care of the patient. Part of plaintiffs responsibility was to communicate with the patient's family and social services to be sure that there was a care giver at home. According to Meyer, similar problems were narrowly averted on a number of other occasions only because other members of the treatment team called Meyer about plaintiffs failure to coordinate care for her patients. Another specific instance cited by Meyer was in February 1998 when plaintiff was unable to answer Meyer's questions about the status of one of plaintiffs patients. Plaintiff admitted that she was not following the patient but claimed she did not need to because social services was doing so. Although plaintiff was counseled on this occasion, as she had been several times before, another incident occurred a couple of weeks later when plaintiff failed to document a patient's chart and failed to communicate adequately with the patient's family.
Plaintiff attempts, by several methods, to demonstrate that these reasons are pretextual. A plaintiff may prove pretext "either directly by persuading the court that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer's proffered explanation is unworthy of credence." Mayfield v. Patterson Pump Co., 101 F.3d 1371, 1376 (11th Cir. 1996).
First, plaintiff argues that defendant's conclusion that plaintiff lacked critical thinking skills was totally subjective, incapable of objective evaluation, and therefore cannot provide a legitimate nondiscriminatory basis for an employment decision. However, in a recent en banc decision, the Eleventh Circuit has lifted subjective reasons from their former position as "the redheaded stepchildren of proffered nondiscriminatory explanations for employment decisions." Chapman v. AI Transport, Nos. 97-8838, 97-9086 and 97-0269, slip op. at 129 (11th Cir. Oct. 2, 2000). "A subjective reason is a legally sufficient, legitimate, nondiscriminatory reason if the defendant articulates a clear and reasonably specific factual basis upon which it based its subjective opinion." Id. Meyer's perception that plaintiff lacked critical thinking skills is not as subjective as plaintiff argues because Meyer noted plaintiffs specific deficiencies and provided examples of those deficiencies. Moreover, citing those same deficiencies, Meyer testified that plaintiff was terminated for poor job performance. Her conclusion about plaintiffs lack of critical thinking skills was more an explanation of why plaintiff performed poorly and failed to improve than a subjective reason for her dismissal.
Plaintiff has attempted, rather unsuccessfully, to demonstrate that proffered specific instances of poor performance cited by defendants are not true. With regard to the person sent home from the hospital without a care giver, plaintiffs excuse is that the patient should have been sent to a nursing home in the first place and that she so advised the family. The point, however, is that the patient did go home and that plaintiff neglected to take the steps necessary to determine whether a care giver would be present. Plaintiff explains that she did not have sufficient knowledge regarding another patient Meyer inquired about because the patient had been on her unit for only three days. Plaintiff does not deny that she lacked knowledge about her patient, nor does she provide enlightenment as to why the length of time the patient had been on her unit should excuse her lack of knowledge. Plaintiff testified that her failure to document another patient's chart occurred because the chart had been sent with the patient when the patient was taken for a special procedure and was therefore unavailable. However, defendants point out that plaintiff never documented the chart, even after the patient, and chart, returned from the procedure. In sum, none of plaintiffs explanations come close to rebutting the specific incidents underlying the conclusion that plaintiff performed he job poorly because she lacked critical thinking skills.
Next, plaintiff attempts to demonstrate that the reasons given are pretextual by pointing out that her case load was almost twice that of other case managers. The evidence does not support this assertion, however. Citing her own deposition testimony and the deposition testimony of Cindy Meyer, plaintiff alleges that she was responsible for three entire units at one time — Four Southeast, MICU and SICU — with a total maximum caseload of 47 to 52. Nowhere in the testimony plaintiff cites is there any evidence that she was assigned to all of these units at the same time. To the contrary, Meyer testified that she "[did not] recall plaintiff being assigned to [F]our [S]outheast, MICU and SICU." (Meyer Depo. p. 54) At most, plaintiff had 4 patients on Four Southeast while assigned to MICU/SICU, not 18 patients as she alleges in her summary judgment response.
As further proof of pretext, plaintiff points to a hodgepodge of evidence she contends demonstrates her "growth" as a case manager between her 1997 evaluation and her 1998 evaluation. Evidence that plaintiff attended professional seminars, attended case management meetings, discussed case management techniques with other case managers and read case management literature does not overcome defendants' evidence that plaintiff nevertheless railed to perform acceptably during that period. Moreover, her ratings of at least "minimally acceptable" on five of six evaluation categories in 1998 does not rebut evidence that her performance was substandard. Finally, the fact that plaintiff had received positive ratings on an evaluation one year earlier by a different supervisor prior to an expansion of job duties does not demonstrate pretext.
Conclusion
Plaintiff has failed to come forward with any evidence from which a jury could find that defendants' proffered reason for dismissing plaintiff from her position as a case manager — poor job performance — was merely a pretext for age discrimination. Consequently, the defendants are entitled to summary judgment. It is, therefore, ORDERED that the defendants' motion for summary judgment be and hereby is GRANTED.