Opinion
No. 1:01-cv-067
March 3, 2003
MEMORANDUM AND ORDER
Presently before the Court is defendant's motion for summary judgment [Court File No. 9] which seeks to dismiss all claims asserted in the Complaint. Plaintiff opposes the motion.
Plaintiff Leo Vital ("Vital") asserts claims of age discrimination under the Age Discrimination in Employment Act of 1967, 29 U.S.C. § 621-634 ("ADEA"), and the Tennessee Human Rights Act, TENN. CODE ANN. §§ 4-21-101-903 ("THRA"), against his former employer, Life Care Centers of America ("Life Care").
For the reasons expressed below, defendant's motion [Court File No. 9] will be DENIED.
I. STANDARD OF REVIEW
Summary judgment is appropriate where no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. FED. R. Civ. P. 56(c). In ruling on a motion for summary judgment, the Court must view the facts contained in the record and all inferences that can be drawn from those facts in the light most favorable to the non-moving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); National Satellite Sports, Inc. v. Eliadis Inc., 253 F.3d 900, 907 (6th Cir. 2001). The Court cannot weigh the evidence or determine the truth of any matter in dispute. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986).
The moving party bears the initial burden of demonstrating that no genuine issue of material fact exists. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). To refute such a showing, the non-moving party must present some significant, probative evidence indicating the necessity of a trial for resolving a material, factual dispute. Celotex Corp., 477 U.S. at 322. A mere scintilla of evidence is not enough. Anderson, 477 U.S. at 252; McLean v. Ontario, Ltd., 224 F.3d 797, 800 (6th Cir. 2000). The Court's role is limited to determining whether the case contains sufficient evidence from which a jury could reasonably find for the non-moving party. Anderson, 477 U.S. at 248, 249; National Satellite Sports, 253 F.3d at 907.
II. FACTS
The record will suggest the following findings of fact if the allegations of the plaintiffs complaint are viewed in the light most favorable to Vital, the non-moving party. The Court makes these findings of fact solely for the purpose of resolving the motion before it.
Vital was the executive director of Life Care Centers of America in Red Bank from August 17, 1981, through the date of his termination, March 2, 2000. He was 77 years old on the date of his termination. Thirty-four year old Bruce DiBernardo replaced Vital as the executive director.
The Court notes that Vital voluntarily resigned his position for a period of one and half years during the late 1980s.
It is not clear from the record what position Bruce DiBernardo held at Life Care prior to Vital's termination.
In Vital's termination letter, Michael Waddell, Life Care's President, asserted that the termination was due to Vital's falsification of a patient's medical chart as well as a violation of a May 13, 1999 order by the Criminal Court of Hamilton County requiring Life Care to turn over the entire medical record of that patient. Waddell explained that because of the manner in which Vital handled the situation involving this particular patient, Life Care now was exposed to legal liability. Life Care asserts that the decision to terminate Vital was made by its corporate compliance committee, which is comprised of seven individuals including Waddell and Lane Bowen, Life Care's Chief Operating Officer.
Another member of the committee was Katherine Davis, who was not present at the committee meeting in which the decision to terminate Vital was made.
Daniel M. Koliadko, Life Care's assistant general counsel, is also a member of the committee. In early 2000, Koliadko conducted an investigation after he received information from Life Care's defense counsel that medical records at the Red Bank facility may have been falsified. Koliadko concluded that both Life Care policy and state nursing regulations had been violated when (1) nurses' notes were rewritten; and (2) documents were removed from a patient's medical file.
Vital maintained an "investigative file," separate from the patient's medical chart, in which he kept, among other things, documents that he deemed to be highly confidential. Koliadko discovered at least four documents in Vital's investigative file that, according to Life Care, should have also been found in the patient's medical record. Koliadko stated that Vital told him on two separate occasions that Vital did not produce the documents contained in his investigative file pursuant to court order. Vital denies that he told Koliadko that he did not produce documents from the investigative file. The committee ultimately concluded that the former acting director of nursing at the Red Bank facility had ordered a nurse to rewrite her notes, redacting certain sensitive information pertaining to the patient. The former acting director of nursing allegedly denied having involvement in the rewrite, yet she also was terminated for her handling of the incident. She was 59 years old. Life Care did not terminate the nurse who admitted to rewriting the notes, who, incidentally, was 29 years old at the time, but rather gave her a written warning for her misconduct. There is no proof that Vital ordered the nurses' notes to be rewritten; however, Life Care asserts that Vital, as executive director, is ultimately responsible.
The incident involving the patient occurred in August 1998. The patient left the facility within a month of the incident. At that time, the patient's medical chart and all documents related to that patient were placed in the archives at the Red Bank facility. Vital asserts that immediately after the incident, while the patient was still at the facility, he kept only incident reports written by certified nursing assistants in his investigative file. Vital also reports that all records and documentation pertaining to the patient's treatment were properly kept in the patient's medical chart. Vital denies ordering the nurses' notes to be rewritten and denies having knowledge that they had been rewritten.
According to Vital, certain documents from the patient's medical chart were removed at the request of Tim Arellano, general counsel of Life Care of America, on December 12, 1998. When the records were returned to the facility, they were placed in Vital's investigative file rather than in the patient's medical chart. When the incident involving the patient became a criminal matter, Vital contends that all of the patient's medical records, including the patient's medical chart as well as Vital's investigative file, were kept in his office at all times. Vital contends that he fully complied with the court order. Vital allowed Jes Beard, attorney for the criminal defendant in this matter, to inspect all of the patient's records, including any documents that were in the investigative file. Jes Beard has stated that Vital fully complied with the criminal court order.
Although Vital admits that he was questioned by Daniel M. Koliadko, Vital avers that he did not know he was the subject of the corporate compliance committee's investigation of alleged wrongdoing until the day he was terminated.
III. ANALYSIS
The ADEA provides that employers may not "discharge any individual . . . because of such individual's age." 29 U.S.C. § 623 (a). A plaintiff can establish a claim under the ADEA either by offering direct evidence indicating intentional age discrimination or by offering circumstantial evidence sufficient to establish an inference of age discrimination. See Wexler v. White's Fine Furniture, Inc., 317 F.3d 564, 570 (6th Cir. 2003). Regardless of whether a plaintiffs proof of intentional discrimination is direct or circumstantial, liability under the ADEA nevertheless depends on whether the plaintiffs age actually motivated the employer's decision. See Reeves v. Sanderson Plumbing Prod, Inc., 530 U.S. 133, 141 (2000).
The analysis of an age discrimination claim brought under the THRA is substantially similar to the analysis of such a claim under the ADEA. See Carr v. United Parcel Serv., 955 S.W.2d 832, 834 (Tenn. 1997). Accordingly, the Court will analyze both of Vital's claims under applicable ADEA law.
A. Direct Evidence
"Direct evidence of discrimination is `that evidence which, if believed, requires the conclusion that unlawful discrimination was at least a motivating factor in the employer's actions.'" Wexler, 317 F.3d at 570 (quoting Jacklyn v. Schering-Plough Healthcare Prods. Sales Corp., 176 F.3d 921, 926 (6th Cir. 1999)). Direct evidence "would take the form, for example, of an employer telling an employee, "I fired you because you are disabled [or elderly].'" Smith v. Chrysler Corp., 155 F.3d 799, 805 (6th Cir. 1998). If the plaintiff presents credible direct evidence, the burden of persuasion shifts to the defendant to show that it would have terminated the plaintiffs employment had it not been motivated by discrimination. See Price Waterhouse v. Hopkins, 490 U.S. 228, 244-45 (1989); Jacklyn, 176 F.3d at 926.
Vital argues that he has both direct and circumstantial evidence of Life Care's intentional discrimination. Vital alleges that Life Care executives, including Waddell and Bowen, as well as Forrest Preston, the sole stockholder of Life Care, and Bruce DiBernardo, made several statements in the months preceding his termination which evidence Life Care's age bias. He offers these statements as direct evidence:
(1) Approximately six months prior to termination, at Life Care's annual meeting, Waddell and Bowen made public statements that Life Care was establishing its five year "vision mapping" program, of which one component was to recruit younger executive directors.
(2) In December 1999, outside of the place of employment, Forrest Preston asked Vital, "Are you getting too old to run the nursing home? When are you going to retire?" Vital asserts that when he told Preston, "About five years," Preston's face changed, and he turned and walked away.
(3) When asked about a new bonus system at the end of 1999, Bruce DiBernardo told Vital that the new bonus system would hurt older employees like Vital and that the incentive and motivation was for younger employees.
The Court finds that the statements proffered by Vital, irrespective of whether they were made by actual decision makers or merely by Life Care executives, do not constitute direct evidence. Even if the statements are believed by a jury to have been made in the context that Vital alleges, the statements do not require the conclusion that Vital's age was a motivating factor in his termination. To evidence intentional discrimination against the plaintiff, Life Care decision makers would have had to have expressed their desire to terminate Vital because of his age. See Nguyen v. City of Cleveland, 229 F.3d 559, 563 (6th Cir. 2000) ("[A] corporate decision maker's express statement of a desire to remove employees in the protected group is direct evidence of discriminatory intent.").
Because the determination of whether Forrest Preston is a "decision maker" is not necessary to the resolution of the direct evidence analysis in this case, the Court will not entertain the parties' well-reasoned arguments.
B. Circumstantial Evidence
The plaintiff may proceed with his claim using circumstantial evidence. Vital argues that he can raise an inference of intentional age discrimination by establishing a prima facie case. The Court agrees.
The analysis of age discrimination claims based on circumstantial evidence is guided by the same burden-shifting analysis applied in Title VII discrimination cases. See Wexler, 317 F.3d at 574. A plaintiff is first required to establish a prima facie case of age discrimination. Id. Under the ADEA, a plaintiff must proffer evidence of these four elements: (1) he was within the protected class of individuals; (2) he was qualified for the position in question; (3) he was subjected to an adverse employment action such as termination and (4) he was replaced by a substantially younger individual. See O'Connor v. Consolidated Coin Caterers Co., 517 U.S. 308, 312-13 (1996); see also Godfredson V. Hess Clark, Inc., 173 F.3d 365, 371 (6th Cir. 1999).
Life Care argues that Vital has failed to establish his prima facie case because he was not qualified to remain in the position of executive director. Life Care asserts that Vital was not qualified because he failed to comply with a court order and employees in his charge falsified a patient's medical chart. As will be seen, Life Care's reasons for deeming Vital unqualified are also the reasons used as justification for Vital's termination. The Wexler court has warned, however, that "a court may not consider the employer's alleged nondiscriminatory reason for taking an adverse employment action when analyzing the prima face case." Wexler, 317 F.3d at 574. Life Care offers nothing else to show that Vital was unqualified.
The Court notes that whether a plaintiff is "qualified" for the purpose of making a prima facie case is not a subjective determination to be made by the employer-defendant. The Wexler court set forth what is required from a plaintiff to satisfy the qualification element of the prima facie test:
At the prima facie stage, a court should focus on a plaintiffs objective qualifications to determine whether he or she is qualified for the relevant job. See Aka v. Washington Hosp. Ctr., 156 F.3d 1284, 1298 (D.C. Cir. 1998) (en banc) (noting that "courts traditionally treat explanations that rely heavily on subjective considerations with caution," and that "an employer's asserted strong reliance on subjective feelings about the candidates may mask discrimination"); MacDonald v. E. Wyo. Mental Health Ctr., 941 F.2d 1115, 1121 (10th Cir. 1991) (holding that a plaintiff can show that she is qualified by presenting "credible evidence that she continued to possess the objective qualifications she held when she was hired") (emphasis added). The prima facie burden of showing that a plaintiff is qualified can therefore be met by presenting credible evidence that his or her qualifications are at least equivalent to the minimum objective criteria required for employment in the relevant field. Although the specific qualifications will vary depending on the job in question, the inquiry should focus on criteria such as the plaintiffs education, experience in the relevant industry, and demonstrated possession of the required general skills.Wexler, 317 F.3d at 575-576.
Vital presents the Court with deposition testimony from Life Care executives, including Preston, Bowen, and Koliadko, who all stated that Vital was qualified to perform his job duties, that he performed competently, that he had never been disciplined during his employment at Life Care, and that he trained candidates to become executive directors at Life Care facilities. These opinions, coupled with the fact that Vital maintained his position as executive director at the Red Bank facility for nearly twenty years, clearly and objectively demonstrate that Vital was qualified for his position.
Life Care does not dispute that Vital can show the remaining elements of his prima facie case. At age 77, Vital is a member of the protected class, was terminated from a position for which he is qualified, and was replaced with a substantially younger individual, 34 year old Bruce DiBernardo. Accordingly, the Court concludes that Vital has established his prima facie case.
However, the analysis does not end here. If a plaintiff establishes a prima facie case, the employer may respond by proffering a legitimate, nondiscriminatory reason for the adverse employment action at issue. See Wexler, 317 F.3d at 574. Life Care has carried its burden of production. Life Care denies that Vital's age was a factor in its decision to terminate his employment. Instead, it asserts that Vital was terminated because he failed to comply with a court order and employees in his charge falsified a patient's medical chart.
The ultimate burden of proof remains with Vital, who must now demonstrate that Life Care's asserted reason for the discriminatory act is a pretext designed to mask age discrimination. See id. A plaintiff can rebut a defendant's proffered reason for an adverse employment action by demonstrating that (1) defendant's asserted reason has no basis in fact; (2) the reason did not actually motivate the discharge; or (3) the reason was insufficient to motivate the adverse action. See id. at 576.
Vital argues that the reasons for Vital's termination given by Life Care are untrue. He asserts that Life Care's own investigation supports the notion that Vital did not order, and had no knowledge of, the alteration of medical records. Vital further reasons that no one has accused Vital or Life Care of noncompliance of a court order; in fact, the attorney for the defendant in the criminal case stated that Vital was in full compliance by allowing him access to all records.
The Court concludes that Vital has carried his ultimate burden. The plaintiff has provided proof that: Vital followed company policy regarding the medical files; nothing was removed from the patient's file until after the patient left the facility and until requested by Life Care general counsel; Vital fully complied with the court order; the criminal defense attorney had access to all documents contained in the confidential file; and Life Care executives never told Vital about the allegations that medical records were falsified prior to the day of his termination. Failure to openly discuss these allegations with Vital appears to be inconsistent with the fact that he had been a valued and trusted employee who had never been disciplined in his nearly twenty years of service.
A genuine issue of material fact exists as to whether Life Care's proffered reason was pretextual. A reasonable jury could choose to disbelieve Life Care's asserted reason for Vital's termination and conclude that Life Care discriminated against Vital. See Reeves v. Sanderson Plumbing Prod. Inc., 530 U.S. 133, 146 (2000) ("Thus, a plaintiffs prima facie case, combined with sufficient evidence to find that the employer's asserted justification is false, may permit the trier of fact to conclude that the employer unlawfully discriminated.")
Moreover, Vital has offered proof that Life Care executives have made statements that purportedly show employer age bias. Although these statements do not constitute direct evidence of intentional age discrimination, the finder of fact is permitted to infer a discriminatory intent from these statements. See Cooley v. Carmike Cinemas, Inc., 25 F.3d 1325, 1330-1333 (6th Cir. 1994). In making a determination of whether an inference of age discrimination is warranted, the Court examines age-related statements, focusing on "whether the comments were made by a decision maker or by an agent within the scope of his employment; whether they were related to the decision-making process; whether they were more than merely vague, ambiguous, or isolated remarks; and whether they were proximate in time to the act of termination." Id., 25 F.3d at 1330. The Cooley court does not require age-related statements to meet all of the above criteria.
The parties here do not dispute that Life Care's "vision mapping" included the aggressive recruitment of younger college graduates to fill executive director vacancies. The parties also do not dispute the fact that Life Care executives publicly announced its new vision mapping at its annual meeting in 1999, approximately six months prior to Vital's termination. Vital contends, and Life Care denies, that in December 1999, just three months prior to Vital's termination and about the time Koliadko began his investigation, Forrest Preston, the owner of Life Care, asked Vital when he was going to retire.
A jury is not required to believe these statements. Nor is the jury required to make an inference of discrimination if these statements are, in fact, believed. However, the Court concludes that plaintiff has presented sufficient evidence, i.e., plaintiffs prima facie case and additional evidence of age-related statements, from which a reasonable jury could infer an intent to discriminate.
Considering the record evidence in a light most favorable to the plaintiff, the Court finds that Vital has carried his burden. Life Care is not entitled to summary judgment.
IV. CONCLUSION
Accordingly, Life Care's motion for summary judgment [Court File No. 9] is DENIED. The parties shall prepare for trial.
SO ORDERED.