Winn v. Regional Medical Center Board

Filing 22

MEMORANDUM OPINION. Signed by Judge Virginia Emerson Hopkins on 1/2/2013. (JLC)

FILED
2013 Jan-02 PM 04:58
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
EASTERN DIVISION
MIKE WINN,
Plaintiff,
v.
REGIONAL MEDICAL CENTER
BOARD, d/b/a Northeast Alabama
Regional Medical Center,
Defendant.

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) Case No.: 1:11-CV-3574-VEH
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MEMORANDUM OPINION
THIS CAUSE is before the court on the Defendant’s Motion for Summary
Judgment (the “Motion”) (Doc. 16). The Plaintiff timely responded to the Motion on
October 22, 2012. (Doc. 20.) The Defendant replied on October 29, 2012. The
Motion is now ripe for disposition.
I.

BACKGROUND
Defendant, Regional Medical Center Board, operates Northeast Alabama

Regional Medical Center (both referred to as “RMC”), a hospital located in Anniston,
Alabama. RMC’s imaging department includes six modalities: radiology, CT, MRI,

nuclear medicine, ultrasound, and mammography. (Doc. 18-5 at 4.)1 RMC also
operates the Tyler Center, which is a separate outpatient facility near the hospital.2
Like the hospital, the Tyler Center offers several imaging modalities, including
radiology, CT, and MRI. To operate these modalities in both the hospital and the
Tyler Center, RMC maintains a staff of technicians with specialized training. RMC
also maintains a supervisor to oversee the technicians and set their work schedules.
Before January 2010, RMC had only one supervisor over the CT modality at
both the hospital and the Tyler Center. (Doc. 18-5 at 4.) Additionally, RMC had only
one supervisor over the MRI modality at both the hospital and the Tyler Center. (Id.)
However, RMC split the supervisor responsibilities for the radiology modality
between the hospital and the Tyler Center. At the hospital, the Radiology Supervisor
oversaw the radiology technicians. At the Tyler Center, the Imaging Services
Coordinator supervised the radiology technicians, but also looked after the
technicians in the CT and MRI modalities.

1

A brief note about the court’s citations to the record. The Defendant filed several
exhibits in support of the Motion. The exhibits include deposition excerpts with four pages of
the deposition transcript on a single page of the exhibit. Yet, in its brief, the Defendant cites to
the page number for the deposition transcript, not the page number of the exhibit. Because there
are four pages of the deposition transcript on a single page of the exhibit, a citation to the page
number of the deposition transcript could be mistaken for a citation to the page of the exhibit.
Thus, the court will cite the page number of the exhibit as it appears on the court’s docket.
2

The record is not clear about the exact connection between RMC and the Tyler Center.
2

Before January 2010, Plaintiff Mike Winn (“Winn”), a caucasian male, worked
as the Radiology Supervisor at RMC. Winn was a working supervisor, which means
he both supervised radiology technicians and filled in for them when they failed to
show up for work. (Doc. 18-5 at 7.) Winn was fifty-eight (58) years old upon his
termination.
Thomas Abernathy (“Abernathy”), a black male, worked as the Imaging
Services Coordinator at the Tyler Center.

As Imaging Services Coordinator,

Abernathy, like Winn, supervised radiology technicians. But, Abernathy also assisted
with supervising CT technicians and MRI technicians at the Tyler Center. (Doc. 18-4
at 4; Doc. 18-5 at 4–5.) Abernathy, like Winn, was a working supervisor. Because
he oversaw radiology, CT, and MRI technicians at the Tyler Center, he was licensed
in all three areas. Winn, on the other hand, was licensed only in radiology. (Doc. 185 at 5.) In January 2010, Abernathy was forty-two (42) years old.
In the fall of 2009, RMC was not performing well financially. The Board
decided to cut costs through a reduction-in-force. David McCormick, the CEO of
RMC directed Joe Weaver, the Chief Operating Officer, to identify positions to
eliminate. Weaver then met with Nick Kaufman, the Director of Imaging Services.
Kaufman suggested eliminating the Radiology Supervisor position. (Doc. 18-5 at 4.)
Weaver ultimately adopted Kaufman’s recommendation. Of course, the parties
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dispute the reason for his decision.
In January 2010, RMC implemented its reduction-in-force. It informed Winn
of its decision to eliminate his position as Radiology Supervisor. As part of his
separation, RMC offered Winn a severance package. In exchange, RMC asked Winn
to waive any and all claims he may have against it. Under the Older Worker’s Benefit
Protection Act of 1990, 29 U.S.C. § 626(f), (“OWBPA”), a waiver of an ADEA claim
must meet stringent statutory requirements. In this case, it is not seriously disputed
that Winn’s waiver meets the statutory requirements. (See Doc. 19 at 8–13.)
Nonetheless, Winn contends the release is invalid because RMC obtained it
through fraud. Several months after Winn’s termination, employees at RMC told
Winn that Abernathy was working in his old job. From these reports, Winn came to
believe that his position as Radiology Supervisor was not actually eliminated. Thus,
Winn contends that RMC lied to him when it asked him to sign the waiver. Winn
further contends that, had he known his position was not actually eliminated, he
would not have signed the waiver. (Doc. 19-1.)
Winn timely filed an EEOC complaint. After he received his right to sue letter,
Winn brought this lawsuit.
II.

LEGAL STANDARD
A.

General Summary Judgment Standard
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Summary judgment is proper only when there is no genuine issue of material
fact and the moving party is entitled to judgment as a matter of law. Fed. R .Civ. P.
56(a). “All reasonable doubts about the facts” and “all justifiable inferences” are
resolved in favor of the nonmoving party. See Fitzpatrick v. City of Atlanta, 2 F.3d
1112, 1115 (11th Cir. 1993).3 A dispute is genuine “if the evidence is such that a
reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 2510 (1986). A fact is material if it
“might affect the outcome of the suit under the governing law . . . . Factual disputes
that are irrelevant or unnecessary will not be counted.” Id. The substantive law will
identify which facts are material and which are irrelevant. Id.
The summary judgment analysis varies somewhat depending on which party
bears the burden of proof at trial. See Fitzpatrick, 2 F.3d at 1115-17 (citing United
States v. Four Parcels of Real Property, 941 F.2d 1428 (11th Cir. 1991) (en banc)).
If the moving party would bear the burden of proof on an issue, then it may meet its
burden on summary judgment only by presenting positive evidence demonstrating an
absence of a genuine issue of material fact—i.e., facts that would entitle it to a

3

Rule 56 was amended in 2010. The Advisory Committee was careful to note, however,
that “[t]he standard for granting summary judgment remains unchanged.” Fed. R. Civ. P. 56
advisory committee’s note to 2010 amendments. Consequently, cases interpreting the previous
version of Rule 56 are equally applicable to the revised version.
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directed verdict if not controverted at trial. Id. at 1115. Once the moving party
makes such a showing, the burden shifts to the nonmoving party to produce
significant, probative evidence demonstrating a genuine issue for trial. Id.
If the nonmoving party would bear the burden of proof on an issue at trial, then
the moving party can satisfy its initial burden on summary judgment in either of two
ways. Id. at 1115-16. First, the moving party may produce affirmative evidence
negating a material fact, thereby demonstrating that the nonmoving party will be
unable to prove its case at trial. Id. at 1116. If the moving party produces such
evidence, then the nonmoving party must respond with positive evidence sufficient
to defeat a motion for a directed verdict at trial. Id.
Second, the moving party may affirmatively show the absence of evidence in
the record to support a judgment for the nonmoving party on a material element. Id.
The moving party is not required to produce evidence negating its opponent’s claim,
but it must direct the court to the hole in the nonmoving party’s case. Id. at 1115-16.
If the moving party satisfies this burden, the nonmoving party may either point to
evidence in the record which would sustain a judgment at trial or may come forward
with additional evidence which would also sustain a judgment. Id. at 1116-17. The
nonmoving party cannot simply rest on mere allegations; he must set forth evidence
of specific facts. Lewis v. Casey, 518 U.S. 343, 358, 116 S. Ct. 2174, 2183 (1996)
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(quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 561, 112 S. Ct. 2130, 2136–37
(1992)).
B.

Applicable Substantive Law

1.

Fraud-in-the-Inducement

An employee may waive his claims under the ADEA and Title VII. See, e.g.,
Puentes v. UPS, 86 F.3d 196, 198 (11th Cir. 1996). Any such waiver must be
“voluntary and knowing.” See Alexander v. Gardner-Denver Co., 415 U.S. 36, 52
n.15, 94 S. Ct. 1011, 1021 n.15 (1974). In the Eleventh Circuit, a waiver is not
voluntary and knowing when it is obtained by “fraud, duress, or coercion . . . .”
Griffin v. Kraft Gen. Foods, Inc., 62 F.3d 368, 374 (11th Cir. 1995).
In this case, Winn alleges that RMC obtained the waiver by fraud. Winn does
not identify the elements of his fraud claim, but the court assumes the elements are
similar to common-law fraud. Relevant here, common-law fraud means that one
party to a contract obtained the other party’s assent by making a material
misrepresentation on which the other party reasonably relies. See, e.g., Restatement
(Second) of Contracts § 164(1).
2.

ADEA Claim

The Eleventh Circuit has recently described the law governing an ADEA claim.
Because this description is relevant and comprehensive, the court will quote the
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Eleventh Circuit at length.
A claim of unlawful age discrimination under the ADEA may be
established through direct or circumstantial evidence. See Van Voorhis
v. Hillsborough Cnty. Bd. of Cnty. Comm'rs, 512 F.3d 1296, 1300 (11th
Cir.2008). When such a claim is based on circumstantial evidence, we
analyze the allocation of burdens and the presentation of proof under the
framework articulated in McDonnell Douglas Corp. v. Green, 411 U.S.
792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). See Chapman, 229 F.3d at
1024 (applying McDonnell Douglas to evaluate ADEA claims); Mauter
v. Hardy Corp., 825 F.2d 1554, 1556 (11th Cir.1987) (same).
Under McDonnell Douglas, a plaintiff must first establish a prima
facie case of discrimination, which “in effect creates a presumption that
the employer unlawfully discriminated against the employee.” Tex. Dep't
of Cmty. Affairs v. Burdine, 450 U.S. 248, 254, 101 S.Ct. 1089, 67
L.Ed.2d 207 (1981). To make out a prima facie case of age
discrimination, the plaintiff must show four things: “(1) that she was a
member of the protected group of persons between the ages of forty and
seventy; (2) that she was subject to adverse employment action; (3) that
a substantially younger person filled the position that she sought or from
which she was discharged; and (4) that she was qualified to do the job
for which she was rejected.” Damon v. Fleming Supermarkets of Fla.,
Inc., 196 F.3d 1354, 1359 (11th Cir.1999).
Once the plaintiff establishes a prima facie case of age
discrimination, the burden shifts to the employer to rebut the
presumption of discrimination with evidence of a legitimate,
nondiscriminatory reason for the adverse employment action. See
McDonnell Douglas, 411 U.S. at 802–03, 93 S.Ct. 1817. “This burden
is one of production, not persuasion . . . .” Reeves, 530 U.S. at 142, 120
S.Ct. 2097. Thus, “[t]o satisfy that burden of production, ‘[t]he
defendant need not persuade the court that it was actually motivated by
the proffered reasons. It is sufficient if the defendant's evidence raises
a genuine issue of fact as to whether it discriminated against the
plaintiff.’” Combs v. Plantation Patterns, 106 F.3d 1519, 1528 (11th
Cir.1997) (quoting Burdine, 450 U.S. at 254–55, 101 S.Ct. 1089). If the
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employer produces evidence of a legitimate, nondiscriminatory reason
for the adverse action, the plaintiff is afforded an opportunity to show
that the employer's stated reason is a pretext for discrimination. See,
e.g., Reeves, 530 U.S. at 143, 120 S.Ct. 2097; McDonnell Douglas, 411
U.S. at 804, 93 S.Ct. 1817.
The plaintiff can show 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.” Burdine, 450 U.S. at 256, 101 S.Ct. 1089. “In
other words, the plaintiff has the opportunity to come forward with
evidence, including the previously produced evidence establishing the
prima facie case, sufficient to permit a reasonable factfinder to conclude
that the reasons given by the employer were not the real reasons for the
adverse employment decision.” Combs, 106 F.3d at 1528. If a plaintiff
produces sufficient evidence that the employer's proffered reason is
merely pretextual, that evidence may sometimes be enough to preclude
summary judgment in favor of the employer. See Reeves, 530 U.S. at
148, 120 S.Ct. 2097. See also St. Mary's Honor Ctr. v. Hicks, 509 U.S.
502, 511, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993) (“The factfinder's
disbelief of the reasons put forward by the defendant (particularly if
disbelief is accompanied by a suspicion of mendacity) may, together
with the elements of the prima facie case, suffice to show intentional discrimination.”).
Kragor v. Takeda Pharm. Am., Inc., --- F.3d ---, No. 11-16052, 2012 WL 6618360,
*2 (11th Cir. Dec. 20, 2012) (footnote omitted).
3.

Title VII Claim

Winn also alleges that RMC discriminated against him because of his race.
When a plaintiff’s race discrimination claim relies on circumstantial evidence, a court
analyzes the claim under the burden shifting framework established in McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817 (1973). See Combs v.
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Plantation Patterns, 106 F.3d 1519, 1527 (1997). For present purposes, this burden
shifting framework is identical to the framework used for Plaintiff’s ADEA claim,
except that the elements of a prima facie case are different. A Plaintiff establishes a
prima facie case of racial discrimination by showing: “(1) [plaintiff] belongs to a
racial minority; (2) he was subjected to [an] adverse job action; (3) his employer
treated similarly situated employees outside his classification more favorably; and (4)
he was qualified to do the job.” Holifield v. Reno, 115 F.3d 1555, 1562 (11th
Cir. 1997).
III.

ANALYSIS
A.

Winn Has Waived His Rights under the ADEA and Title VII.

It is undisputed that Winn signed a waiver purporting to release his ADEA and
Title VII claims. Additionally, it is undisputed that the waiver meets the eight special
requirements for ADEA claims found in 29 U.S.C. § 626(f)(1). (See Doc. 17 at
11–14; Doc. 20 at 8–13.)
Nonetheless, Winn contends the waiver is invalid because RMC obtained it by
fraud. Specifically, Winn contends RMC lied to him when it said his position was
eliminated. He asserts that RMC actually eliminated Abernathy’s position as Imaging
Services Coordinator and moved Abernathy to Winn’s position as Radiology
Supervisor. Winn further contends that, had he known the truth, he would not have
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signed the waiver. (Doc. 19-1.) If RMC obtained Winn’s waiver by fraud, then it is
invalid. See Griffin, 62 F.3d at 374.
Thus, there is no dispute that RMC told Winn it was eliminating his position.
The material fact at issue here is whether or not RMC actually eliminated Winn’s
position as Radiology Supervisor. Winn bears the burden of proof on his fraud claim.
The court begins by comparing the Radiology Supervisor position (Winn) with
the Imaging Services Coordinator position (Abernathy). Winn testified that, as
Radiology Supervisor, he managed the day-to-day operations of the radiology
department at the hospital, made out schedules for the radiology technicians at the
hospital, ordered supplies, and assigned technicians to specific areas of the hospital.
(Doc. 18-1 at 9.) Winn was responsible for the technicians’ performance evaluations
and their schedules. (Id.) Winn could not hire or fire radiology technicians, though
his director often sought his input on these decisions. (Id.) Winn’s technicians
worked almost exclusively in radiology, though, on rare occasions, some helped out
in CT. (Id.) Winn had no duties at the Tyler Center. (Id.; Doc. 18-5 at 4–5.)
The Imaging Services Coordinator at the Tyler Center did much the same thing
as the Radiology Supervisor at the hospital. (Doc. 18-1 at 13; Doc. 18-4 at 4; Doc.
18-5 at 5.) However, the Imaging Services Coordinator also had responsibilities in
the CT and MRI modalities at the Tyler Center. (Doc. 18-4 at 4; Doc. 18-5 at 5.)
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RMC contends that it eliminated the Radiology Supervisor position and
consolidated the duties of that position with the Imaging Services Coordinator’s
position. (Doc. 17 at 5.) Winn counters that Abernathy is in the Radiology
Supervisor position. Winn points out that Abernathy does little CT or MRI work at
the Tyler Center and none at the hospital. (Doc. 20 at 3.) Winn also contends that
Abernathy does only radiology work at the hospital. (Id.) Even assuming that
Winn’s assertions are true, Winn must still show that Abernathy has no duties at the
Tyler Center. Winn has not made that showing. In fact, the undisputed evidence
confirms that RMC eliminated the Radiology Supervisor position.
For instance, Abernathy testified that he continued to perform his duties at the
Tyler Center after January 2010. (Doc. 18-6 at 3, 5.) Abernathy did testify that Terry
Cobb assumed responsibility for MRI at the Tyler Center after Winn’s termination.
(Doc. 18-6 at 4.) However, Abernathy remained responsible for radiology and CT.
(Doc. 18-6 at 4.)
Nick Kaufman testified that, while other employees assumed some of
Abernathy’s duties at the Tyler Center, Abernathy remained responsible for
supervising the radiology employees at the Tyler Center. (Doc. 18-5 at 7–8; Doc. 195 at 3.) Specifically, Terry Cobb helped manage the day-to-day activities at the Tyler
center in Abernathy’s absence. (Doc. 18-5 at 8.) But, Cobb did not handle
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scheduling or administrative tasks at the Tyler Center. (Id.) Abernathy remained
responsible for these duties. (Id.; Doc. 18-6 at 5.)
Finally, Joe Weaver testified that he eliminated the Radiology Supervisor over
the Imagining Services Coordinator position because the Imagining Services
Coordinator position required experience in radiology, MRI, and CT. (Doc. 18-4 at
5–6.) The Radiology Supervisor position, on the other hand, required experience
only in radiology. Thus, the Imaging Services Coordinator could easily assume the
Radiology Supervisor’s duties. But the opposite is not also true.
To contest RMC’s assertion that it eliminated the Radiology Supervisor
position, Winn relies on the affidavits of three former and current hospital employees.
All three employees assert that Abernathy spent the majority of his time in the
radiology department at the hospital after Winn’s termination in January 2010. (Doc.
20 at 12; Doc. 19-2; Doc. 19-3; Doc. 19-4.) All three employees assert that
Abernathy does not work with CT or MRI technicians at the hospital. (Id.) And, one
employee asserts that she never saw Abernathy at the Tyler Center on the days she
worked there. (Doc. 19-3.)
Still, these affidavits do not create a genuine issue of fact regarding the
elimination of Winn’s position. The testimony of these employees simply cannot
prove that Abernathy does not continue to work at the Tyler Center. And, if
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Abernathy still has duties at the Tyler Center, then he is not in Winn’s old job. He
is in a new and consolidated position.
As explained above, the Radiology Supervisor and Imaging Services
Coordinator both managed radiology technicians. One performed this job at the
hospital and the other at the Tyler Center. RMC contends that it consolidated these
two positions. If that is true, then one would expect the new position—the one
currently held by Abernathy—to have many of the same duties as the former
Radiology Supervisor. But, one would also expect that the new position would have
many of the duties of the old Imaging Services Coordinator. Winn’s affidavits show
that Abernathy assumed many of the duties of the Radiology Supervisor. But, they
do not show that Abernathy abandoned his duties as Imaging Services Coordinator.
The three employee-affiants did not follow Abernathy around all day, every day. Nor
did any of them ever supervise Abernathy.

Therefore, their observations of

Abernathy’s job can confirm that they observed him working in the hospital.
However, simply because these employee-affiants did not observe Abernathy working
in the Tyler Center does not create a genuine issue of material fact as to whether he
in fact worked there, due to the limited nature of these affiants’ personal knowledge.
Additionally, Abernathy’s physical presence at the hospital or at the Tyler Center
does not establish whether or not the two positions were or were not consolidated.
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Abernathy himself testified that he currently only spends about two hours a day at the
Tyler Center. (Doc. 18-6 at 4.)
RMC, on the other hand, has put forth affirmative evidence showing that
Abernathy kept many of his duties at the Tyler Center in addition to assuming new
duties at the hospital. Because Winn has failed to refute this evidence, the court
concludes that Abernathy is not merely doing Winn’s old job. Instead, Abernathy is
in a new position, which consolidates many of the duties of the old Radiology
Supervisor and the Imaging Services Coordinator.
Winn appears to argue that, because Abernathy spent most of his time at the
hospital, he was actually doing Winn’s job. That is simply not the case. The
elimination of a position, by its very nature, requires the redistribution of the duties
of that position to other employees. In this case, it appears that Abernathy assumed
all of Winn’s duties. But this fact does not show that RMC lied to Winn about the
elimination of his position. To establish that RMC lied to him, Winn must show that
his position still exists. If Winn’s duties were consolidated with Abernathy’s duties
(as the record indicates), then Winn’s position does not exist.
At the very least, Winn has produced no evidence sufficient to create a genuine
issue of material fact regarding the elimination of his position. Because RMC
actually eliminated Winn’s position, it never lied to Winn about the reasons for his
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termination. Thus, Winn’s fraud claim fails. Winn’s waiver of his ADEA and Title
VII claims is, therefore, valid and enforceable. Winn’s claims are due to be dismissed
on that basis.
B.

Even if Winn Has Not Waived His Rights, He Has Not Shown
Pretext.

Winn’s claims fail for another reason, namely Winn has not rebutted RMC
legitimate, nondiscriminatory reason for his termination. Under both the ADEA and
Title VII, an employer may assert a legitimate non-discriminatory reason for its
employment decision. See Chapman v. AI Transport, 229 F.3d 1012, 1030 (11th Cir.
2000). Once the employer articulates this reason, then the employee must meet the
reason head on and rebut it. Id.
Assuming without deciding that Winn has a prima facie case of discrimination
on his ADEA and Title VII claims, he has failed to rebut RMC legitimate reason for
his termination. RMC asserts that it terminated Winn because it eliminated his
position. (Doc. 19-5 at 2–3.) As explained above, Winn has not shown that RMC did
not eliminate his position. See Part III.A. Nor has he produced other evidence from
which a reasonable jury could conclude that RMC’s articulated reason was not the
real reason. Thus, Winn has failed to carry his burden of proof on his ADEA and
Title VII claims. Winn may quarrel with the wisdom of RMC’s business decision.

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But, this court is not a proper forum for that dispute. See Chapman, 229 F.3d at 1030.

IV.

CONCLUSION
RMC has produced affirmative evidence showing that Winn waived his ADEA

and Title VII claims. Winn has failed to show that his waiver is invalid. Therefore,
Winn’s claims are hereby DISMISSED WITH PREJUDICE as barred by the
waiver.
Alternatively, RMC has articulated a legitimate, nondiscriminatory reason for
Winn’s termination. Winn has put forth no evidence from which a reasonable jury
could conclude that RMC’s reason is merely a pretext for discrimination. Therefore,
there is no genuine issue of material fact and RMC is entitled to judgment as a matter
of law. Winn’s claims are hereby DISMISSED WITH PREJUDICE.
The court does not reach RMC’s argument that it is not subject to punitive
damages.
DONE and ORDERED this the 2d day of January, 2013.

VIRGINIA EMERSON HOPKINS
United States District Judge

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