MILLER v. ADVANTAGE BEHAVIORAL HEALTH SYSTEMS

Filing 30

ORDER denying 14 Motion for Summary Judgment. Ordered by US DISTRICT JUDGE CLAY D LAND on 9/18/2015 (nmr).

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
ATHENS DIVISION
GLORIA JANE MILLER,

*

Plaintiff,

*

vs.

*

ADVANTAGE BEHAVIORAL HEALTH
SYSTEMS,

*

CASE NO. 3:14-cv-45(CDL)
*
Defendant.
O R D E R
Plaintiff Jane Miller is a former employee of Defendant
Advantage

Behavioral

Health

Systems.

Miller

contends

that

Advantage discharged her because of her age in violation of the
Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq.
(ADEA). Advantage filed a motion for summary judgment arguing
that it terminated Miller for legitimate reasons.

Because there

are

for

genuine

fact

disputes

regarding

the

reason

Miller’s

termination, the motion for summary judgment (ECF No. 14) is
denied.
SUMMARY JUDGMENT STANDARD
Summary judgment may be granted only “if the movant shows
that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.”
Civ. Pro. 56(a).

Fed. R.

In determining whether a genuine dispute of

material fact exists, the Court must accept the non-movant’s

evidence as true and draw all justifiable inferences in

its

favor.

Anderson

255

(1986).

A fact is material if it is relevant or necessary to

v.

Liberty

the outcome of the suit.

Lobby,

Inc.,

Id. at 248.

477

U.S.

242,

A dispute is genuine if

the evidence would allow a reasonable jury to return a verdict
in favor of the non-movant.

Id.

FACTUAL BACKGROUND
The record viewed in the light most favorable to Miller,
the non-movant, reveals the following:
I.

Miller’s Employment with Advantage
Advantage

is

a

Community

funding

from

the

abuse,

and

developmental

throughout
Advantage

state

Georgia.
began

as

to

Service

provide

a

mental

disability

Miller’s

most

part-time

Board

that

health,

services
recent

nurse

in

receives
substance

at

clinics

employment
2002.1

with

Shortly

thereafter, Miller became the Crisis Stabilization Unit manager
and

a

full-time

employee.

In

August

of

2006,

Miller

took

a

voluntary demotion and pay decrease to a staff nurse position at
Advantage’s clinic in Clarke County because she did not like the

1

Miller was briefly employed with Advantage in 1998 and 1999.
In
1999, her son was in a car accident and Miller was terminated for
abandoning her position when she did not come in to work. This prior
employment is not material to the present motion. Zaben v. Air Prods.
& Chems., Inc., 129 F.3d 1453, 1455 (11th Cir. 1997)(per curiam)
(noting that a fact is material when “it has the potential to change
the outcome of the lawsuit”).

2

way the Crisis Unit was operated.

Pl.’s Resp. to Def.’s Mot.

for Summ. J. Ex. 4, Pl.’s Decl. ¶ 3, ECF No. 17-6.
A.

Miller’s Tenure at the Clarke Clinic

The series of events leading to Miller’s termination began
in 2006, when she was working at the Clarke clinic.
1.

Miller’s Work Performance at the Clarke Clinic

Advantage asserts that Miller was behind on paperwork at
the Clarke

clinic.

Miller

explains, however, that when she

arrived at Clarke, she received a room of overdue paperwork that
became her responsibility.
that

the

timely

filing

Pl.’s Decl. ¶ 5.
of

paperwork

like

It is undisputed
Multi-Information

Consumer Profiles and billing forms is crucial to Advantage’s
consistent receipt of state funds. Miller testified that she was
never personally behind on paperwork at

Clarke and that any

backlog in paperwork preceded her employment there.

Pl.’s Dep.

171:4-9, ECF No. 26; Pl.’s Decl. ¶ 5.
Although Miller asserts that the backlog was not her fault,
she was issued corrective action plan letters in April, May, and
July

of

2008.

Corrective

action

plans

were

automatically

generated on a monthly basis for all clinicians who were not
meeting 100% productivity.
27.
least

Eckhardt Dep. 122:23-123:12, ECF No.

Miller claims, however, that productivity was based, at
somewhat,

261:18-265:2.

on

how

Miller

many

patients

received

3

the

she

saw.

corrective

Pl.’s
action

Dep.
plans

because she was not able to see enough patients to meet the
productivity requirement while she caught up on the paperwork
left by her predecessor.
she

did

not

have

any

Id.

Miller clarifies, however, that

problem

meeting

the

productivity

requirement at Clarke when she was not catching up on paperwork.
Id. at 265:18-24.
2.
During
Eckhardt,

Eckhardt’s Age-Related Comments to Miller
Miller’s

the

chief

employment
operations

at

the

Clarke

clinic,

Fred

officer

of

Advantage

who

ultimately fired Miller, began making age-related comments to
her.2

Id. at 199:12-22.

Miller testified that Eckhardt told

her she should think about retiring and that “as you get older
you move slower.”

Id. at 199:17-200:9. Eckhardt also said he

thought it was better to have younger nurses because “as you
g[et] older, you couldn’t teach a dog new tricks.”
206:6-9.

Id. at

Additionally, he told Miller that “you older nurses

that work here make too much money” because he could “hire two
nurses for what [Miller] ma[de].”3

Id. at 209:12-16.

2

Advantage cannot seriously dispute that Eckhardt was primarily
responsible for the decision to terminate Miller, although three other
officers concurred in the decision.
Eckhardt Dep. 74:6-77:9.
Thus,
evidence of Eckhardt’s age animus may be used against Advantage.
Reeves v. Sanderson Plumbing Prods., 530 U.S. 133, 151 (2000) (holding
the employer responsible for the primary decisionmaker’s ageist
comments).
3

Eckhardt denies making age-related comments to Miller, but at the
summary judgment stage Miller’s testimony must be taken as true. Damon
v. Fleming Supermarkets of Fla., Inc., 196 F.3d 1354, 1361 (11th Cir.

4

B.

Miller’s Tenure at the Elberton Clinic

Eckhardt

suggested

that

Miller

transfer

to

Elberton clinic in 2008. Id. at 192:18-193:3.

Advantage’s

Eckhardt told

Miller she was getting “sore (sic) because of [her] age” and
needed to go to Elberton because “it was a little bit quieter
there.”

Id.

Miller agreed to move to Elberton because she was

“tired of [Eckhardt] making comments about [her] age.”

Id. at

196:1-6.
Although

it

is

somewhat

unclear

from

Miller’s

testimony

exactly when every age-related comment occurred, it is clear
that, according to Miller, Eckhardt made comments repeatedly in
the years preceding her termination.
comments

were

Frazier,

the

215:9-20.
Eckhardt

pervasive
human

enough

resources

Id. at 198:25-210:15.

that

Miller

director,

about

spoke

to

The
Terry

them.

Id.

at

Frazier told her, however, that a complaint against
would

do

no

good.

Id.

Miller

knew

that

other

employees had complained to human resources and received the
same

response

complaint.

so

she

was

discouraged

from

filing

a

formal

Id. at 217:4-218:20.

Regarding

Miller’s

performance

at

the

Elberton

clinic,

although Eckhardt testified that she was an underperformer at
Elberton,

Eckhardt

Dep.

77:3-79:24,

Miller

stated

that

she

1999) (quoting Hairston v. Gainesville Sun Publ’g Co., 9 F.3d 913, 918
(11th Cir. 1993)) (“In the summary judgment context. . . ‘the evidence
of the non-movant is to be believed and all justifiable inferences are
to be drawn in his favor.’”).

5

received bonus checks for productivity approximately every three
months.
C.

Id. at 191:3-8.
Miller’s Tenure at the Jackson Clinic

Eckhardt transferred Miller to Advantage’s Jackson clinic
on October 31, 2008.

Pl.’s Decl. ¶ 11 & Attachment A, ¶ IV.

Rae Meeks, a support staff supervisor at Jackson, stated that
she did not know why Miller, who lived far away, was moved to
Jackson when there were other nurses who lived closer.

Pl.’s

Resp. Ex. 17, Meeks Decl. II ¶ 3, June 24, 2015, ECF No. 17-19.
Miller says that Eckhardt expressed concern about her keeping up
with paperwork at Jackson because of her age, but moved her
there and “gave her” a chance.

Pl.’s Dep. 347:2-16.

Historically, the Jackson clinic had only one nurse who saw
a large number of patients.
that

Miller’s

predecessor

Pl.’s Decl. ¶ 7.

nurse

at

Jackson

backlog of paperwork shortly before she left.

Eckhardt knew

was

buried

in

a

Pl.’s Resp. Ex.

6, Email from Shannon Sallee to Fred Eckhardt (Jan. 9, 2008),
ECF No. 17-8 (“Shannon Sallee Email”).
began

requiring

Miller

to

see

Addtionally, Eckhardt

nonemergency

shortly after she was transferred to Jackson.

walk-in

Pl.’s Decl. ¶ 8.

Nurses at other clinics were only required to
walk-in patients.

patients

see

emergency

Id.; Meeks Decl. II ¶ 4.

According to Miller, Eckhardt and Robin Bromley, the lead
therapist at the Jackson clinic, decided to watch Miller closely

6

and record every error to create a record for her termination.
See

Pl.’s

Resp.

Ex.

18,

Email

from

Robin

Bromley

to

Fred

Eckhardt (July 2, 2009), ECF No. 17-20 (“‘This Helps’ Email”).
Rae

Meeks,

clinic

who

until

worked

June

of

as

a

2009,

staff
stated

making life difficult” for Miller.

supervisor
that

at

the

Jackson

Bromley

was

“always

Meeks Decl. II ¶ 2, 5.

Bromley emailed Eckhardt with complaints about Miller in May,
June, July, and August of 2009.

Def.’s Mot. for Summ. J. Ex.

22, Email from Robin Bromley to Fred Eckhardt (May 19, 2009),
EFC No. 14-23, Ex. 23, Email from Robin Bromley to Fred Eckhardt
(June 22, 2009), ECF No. 14-24, Ex. 24, Email from Robin Bromley
to Fred Eckhardt (Aug. 3, 2009), ECF No. 14-25, & Ex. 25, Email
from Robin Bromley to Fred Eckhardt (July 6, 2009), ECF No. 1426.4

4

Miller objected to these four emails as well as twenty-nine other
exhibits attached to Advantage’s motion for summary judgment, arguing
they are unauthenticated, inadmissible hearsay.
Advantage has since
filed the declaration of Theresa Davis, Advantage’s director of human
resources, authenticating these documents. Def.’s Reply, Ex. 1, Davis
Decl. ¶ 2-4, ECF No. 19-1.
Additionally, Defendant’s exhibits 1-7,
11, 17-19, 27, and 30 likely constitute business records under Fed. R.
Evid. 803(6) and are, therefore, admissible.
The remaining exhibits
are emails that Advantage argues were kept in the regular course of
business. This assertion alone, however, may be insufficient to admit
the emails as business records.
See United States v. Cone, 714 F.3d
197, 219-20 (4th Cir. 2013) (holding that merely stating that the
emails were kept in the regular course of business is an insufficient
foundation to admit them under the business records exception to
hearsay).
Nevertheless, it is highly likely that Advantage will be
able to lay the foundation to admit the emails at trial because the
emails are written by supervising employees discussing business
matters. Thus, the Court may consider the emails in determining this
motion.
Macuba v. Deboer, 193 F.3d 1316, 1322-24 (11th Cir. 1999)
(internal quotations omitted) (“[A] district court may consider a

7

Although Advantage contends that Miller’s performance was
consistently substandard at Jackson, Miller points to evidence
that

arguably

conflicts

with

this

contention.

She

received

incentive pay for productivity in February and May of 2009.
Pl.’s Resp. Ex. 14, Personnel Action Requests, ECF No. 17-16.
Additionally, Meeks stated that when she left Jackson in June of
2009, Miller was completely up to date on her paperwork.
Decl.

II

¶

2.

Meeks

also

noted

that,

while

she

Meeks
was

at

Advantage, Miller did not make any more errors with paperwork
than Bromley did.

Pl.’s Resp. Ex. 5, Meeks Aff. I ¶ 2, Sept.

15,

17-7.

2011,

ECF

No.

Bromley

also

recalls

errors were not uncommon at Advantage.

that

billing

Pl.’s Resp. Ex. 15,

Bromley Decl. ¶ 3, ECF No. 17-17.
In
billing

June

of

system

2009,
to

a

Advantage

switched

computer-based

system

from

a

called

paper-based
CareLogic.

With this switch, Advantage changed its filing policy so that
all clinicians were required to personally file their Profile
and billing updates.

Pl.’s Decl. ¶ 9.

Following the change,

support staff, like Rae Meeks, left Jackson and Miller became
solely responsible for all of her own paperwork.
Decl. II ¶ 2.

Id.; Meeks

Due to this switch, Miller fell behind because

hearsay statement in passing on a motion for summary judgment if the
statement could be reduced to admissible evidence at trial. . . .”).

8

she was the only nurse at Jackson and consistently saw more than
a full day of patients.
Miller

stayed

Pl.’s Decl. ¶ 9.

late

every

day

and

usually

came

in

on

Fridays, her day off, to try and keep up under the new system.
Pl.’s Dep. 301:15-25.

Nevertheless, Eckhardt issued Miller a

“letter of concern” in August of 2009 regarding her paperwork
deficiencies.
Miller communicated with Advantage about the overload of
paperwork and asked for assistance.

Pl.’s Dep. 308:19-309:17.

Despite Advantage’s contention that it made adjustments to help
Miller, Miller asserts that most of these alleged adjustments
were discussed but never effectively put into practice.
example,

in

August

of

2009,

Miller

asked

that

her

For
last

appointment be at 5 pm so that she would have time at the end of
the day to catch up on her paperwork.
that this did not effectively occur.
Additionally,

around

Miller states, however,

Pl.’s Dep. 297:20-301:13.

November

of

2009,

compliance expert, Matt Hurd, met with Miller.

a

paperwork

Hurd suggested

schedule changes to allow Miller time to do paperwork between
clients.

Subsequently, Miller was issued a follow-up “letter of

concern” informing her of Hurd’s recommended changes.

Although

Keo Copeland, the Jackson office manager, made an effort to
implement

the

recommended

schedule

changes,

Miller

never

actually experienced the breaks due to double booking and walk-

9

ins. Pl.’s Dep. 324:10-325:8.

Finally, a temporary nurse was

supposed to come in for several weeks to help Miller with the
backlog.

The temporary nurse, however, hurt her ankle and was

only able to work four or five days.

Pl.’s Dep. 328:21-329:23.

Miller received another follow-up “letter of concern” on
December 3, 2009.

Pl.’s Dep. Ex. 15, Letter from Fred Eckhardt

to Jane Miller (Dec. 3, 2009), ECF No. 26-15.

At that time,

Miller had 290 client Profiles to complete within the month.
Pl.’s Dep. 325:14-17. Miller decreased that number to 142 by
December 21, 2009.

Pl.’s Dep. 332:5-9.

Then, by December 31,

2009, Miller’s paperwork was up to date.
Miller

accomplished

this

by

working

Pl.’s Decl. ¶ 10.

extra

Christmas holidays, including Christmas Eve.

hours

over

the

Id.

On January 12, 2010, Miller called Eckhardt to tell him
that she would be out of work sick with strep throat.
informed
334:5-17.
and

Miller

that

she

was

being

terminated.

Eckhardt

Pl.’s

Dep.

On January 16, 2010, Miller went to Eckhardt’s office

received

her

official

letter

of

termination.

At

this

meeting, Miller reiterated to Eckhardt that he had treated her
unfairly by making age-related comments, moving her from clinic
to clinic, and placing her in an impossible position.
Dep.

338:23-339:16.

Advantage

nurse to replace Miller.

hired

a

twenty-five

Pl.’s
year-old

Copeland Dep. 41:6-7, ECF No. 28;

10

Pl.’s Resp. Ex. 11, Def.’s Resp. to Pl.’s Interrogs. ¶ 4, ECF
No. 17-13.
After
Miller

exhausting

filed

this

administrative

age

remedies

discrimination

with

action

the

claiming

EEOC,
that

Advantage discharged her because of her age in violation of the
ADEA.5
II.

Pat Gibby’s Experience with Eckhardt
Miller’s

testimony

regarding

Eckhardt’s

comments is substantiated by Pat Gibby.
had

a

Gibby, another former

Advantage

nurse,

Eckhardt.

Pl.’s Resp. Ex. 12, Gibby Aff. I ¶ 3, Jan. 12, 2012,

ECF No. 17-14.

allegedly

age-related

similar

experience

with

According to Gibby, prior to her retirement,

Eckhardt told her that it was “time for [her] to go.”

Id.

When

she refused to resign, Advantage unjustifiably wrote her up for
violations, including infractions which Gibby claims she never
committed.

Id.

Miller offers two other incidents involving

Gibby in 2010 that both Gibby and Miller contend show bias and
discriminatory treatment.

Id. ¶ 4.

First, Gibby was told that

she would have to work the night shift instead of the day shift.
Id.

Second, she was told she had to work during a planned

holiday.

5

Miller
She did
claim so
Corp. v.

Id.

Gibby viewed both incidents as attempts to get

originally brought a hostile work environment claim as well.
not respond to Advantage’s summary judgment motion on this
the Court finds that she has abandoned it. Resolution Trust
Dunmar Corp., 43 F.3d 587, 599 (11th Cir. 1995).

11

rid of her; she gave in and retired. Id.

Gibby is also Miller’s

friend and first cousin.
DISCUSSION
To prove age discrimination under the ADEA, Miller must
establish that age was the “but for” cause of her termination.
Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 177 (2009).
illegal

age

discrimination

claim

may

be

established

either direct. . . or circumstantial evidence.”

An

“through

Mora v. Jackson

Mem’l Found., Inc., 597 F.3d 1201, 1204 (11th Cir. 2010) (per
curiam)(quoting Van Voorhis v. Hillsborough Cty. Bd. of Cty.
Comm’rs, 512 F.3d 1296, 1300 (11th Cir. 2008)).

Miller asserts

that she has offered both direct and circumstantial evidence of
intentional age discrimination.
I.

Eckhardt’s Age-Related Comments
For

purposes

Eckhardt’s
evidence.”

of

the

age-related
The

Court’s

comments

Eleventh

summary
may

Circuit

not

has

judgment

analysis,

constitute

developed

a

“direct
“rigorous

standard” for when such evidence constitutes direct evidence of
discrimination.

Damon v. Fleming Supermarkets of Fla., Inc.,

196 F.3d 1354, 1359 (11th Cir. 1999).

Direct evidence must

“correlate[e] to the discrimination. . . complained of by the
employee.”
Residential

Id.

at

Treatment,

1358
132

(quoting
F.3d

635,

Carter

v.

641

(11th

Three

Springs

Cir.

1998)).

Here, Eckhardt’s age-related comments occurred during the four

12

years

preceding

Miller’s

termination.

Although

the

comments

clearly show Eckhardt’s age animus, Eckhardt never indicated an
intent to terminate Miller because of her age. Cf. id. at 1359
(giving “Fire Earley-he is too old” as an example of direct
evidence of age discrimination)(quoting Earley v. Champion Int’l
Corp., 907 F.2d 1077, 1082 (11th Cir. 1990))).

To find age

discrimination, the factfinder must infer a connection between
Eckhardt’s
decision.
(11th

Cir.

ageist

comments

and

his

subsequent

termination

Wilson v. B/E Aerospace, Inc., 376 F.3d 1079, 1086
2004)

(“Direct

evidence

is

evidence,

that,

if

believed, proves [the] existence of [a] fact without inference
or presumption.” (alteration in original) (quoting Burrell v.
Bd. Of Trs. of Ga. Military Coll., 125 F.3d 1390, 1393 (11th
Cir. 1997))).6

Thus, rather than relying on Eckhardt’s comments

as direct evidence of discrimination, the Court will consider
the comments as circumstantial evidence of discrimination for
the purposes of summary judgment.

6

Judge Tjoflat has expressed reservations about this “without inference”
definition of direct evidence, noting that the Eleventh Circuit has
previously found direct evidence where the evidence required an inference.
See Wright v. Southland Corp., 187 F.3d 1287, 1295-99 (11th Cir.
1999)(plurality opinion).
But the Eleventh Circuit continues to use the
“without inference” definition. See, e.g., Dixon v. The Hallmark Cos., Inc.,
627 F.3d 849, 854 (11th Cir. 2010); Scott v. Suncast Beverages Sales, Ltd.,
295 F.3d 1223, 1227-28 (11th Cir. 2002).
Here, the inference required to
find discrimination from Eckhardt’s comments is not entirely clear because
Miller’s deposition is not definitive regarding when every age related
comment occurred.
Nevertheless, whether or not the age-related comments
constitute direct evidence does not matter for this motion.
As discussed
below, even if Eckhardt’s comments are only circumstantial evidence, summary
judgment is not appropriate.

13

II.

McDonnell Douglas Framework
For claims based upon circumstantial evidence, the Court

uses the analytical framework established in McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973).

Kragor v. Takeda Pharm.

Am. Inc., 702 F.3d 1304, 1308 (11th Cir. 2012).7

Under McDonnell

Douglas,

facie

Miller

discrimination.

must

first

establish

a

prima

case

of

Id.

This requires showing (1) that she was a

member of the protected age group; (2) that she was subject to
an adverse employment action; (3) that a substantially younger
person filled her position; and (4) that she was qualified to do
the job from which she was discharged.

Id.

After Miller establishes a prima facie case, the burden of
production shifts to Advantage.

Id.

To rebut the presumption

of discrimination established by the prima facie case, Advantage
must

articulate

a

Miller’s termination.

legitimate,
Id.

nondiscriminatory

reason

for

If Advantage does so, Miller, in

order to survive summary judgment, must present evidence from
which a reasonable juror could conclude that Advantage’s reason
is pretext for discrimination.

Id. at 1308-09.

7

In Gross, the Supreme Court reserved the issue of whether or not McDonnell
Douglas applies to circumstantial evidence cases under the ADEA. 557 U.S. at
174-75 & n.2.
The Eleventh Circuit continues to apply McDonnell Douglas in
the ADEA context. Kragor, 702 F.3d at 1308. The Court expressly addressed
Gross and determined that continued application of McDonnell Douglas in ADEA
cases is consistent with the Supreme Court’s opinion. Sims v. MCM, Inc., 704
F.3d 1327, 1332-34 (11th Cir. 2013).

14

III. Miller’s Prima Facie Case
Miller has clearly established a prima facie case of age
discrimination.

Miller,

who

was

sixty-one

years

old

when

terminated, was a member of the protected age group; she was
replaced

by

a

substantially

younger

twenty-five

year-old

employee; and her termination constitutes an adverse employment
action.

The Court further finds that for purposes of a prima

facie case, Miller was qualified for her position based in part
on her eight years of employment with Advantage.

Damon, 196

F.3d at 1360 (reversing the district court’s determination that
the

plaintiff

inferred

when

was
a

not

qualified

plaintiff

is

because

qualification

discharged

from

is

long-held

employment).
IV.

Advantage’s Legitimate Reasons for Termination
Advantage articulated legitimate nondiscriminatory reasons

for Miller’s termination.

Specifically, Advantage states that

Miller was terminated for “work performance deficits including
lab and medication errors, problems responding to and checking
emails, inappropriate interactions with clients, and failing to
comply

with

[Profile]

and

billing

procedures.”

Def.’s

Mem.

Supp. Summ. J. 2, ECF No. 14-1; Pl.’s Dep. Ex. 13, Letter from
Fred Eckhardt to Jane Miller (Aug. 13, 2009), ECF No. 26-13.
Because

these

performance

deficiencies

might

motivate

a

reasonable employer to terminate an employee, Miller must meet

15

the reasons head on and rebut them.

Chapman v. Al Transp., 229

F.3d 1012, 1030 (11th Cir. 2000)(en banc).
for

the

Court

to

decide

at

this

The precise issue

summary

judgment

stage

is

whether sufficient evidence exists from which a reasonable juror
could conclude that these articulated reasons are pretext for
discrimination. Id. at 1037.
V.

Pretext
Miller may 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.”

Kragor, 702 F.3d at 1308

(quoting Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248,
256 (1981).

As explained below, Miller demonstrates pretext

both directly and indirectly, thus avoiding summary judgment.
A.

Evidence of Age Animus

Although Eckhardt’s age-related comments may not be “direct
evidence”

of

circumstances

discrimination,
from

which

discriminatory animus.

a

they

jury

certainly

establish

could

reasonably

infer

his

Damon, 196 F.3d at 1362-63 (finding that

a supervisor’s remark that he preferred “aggressive, young men”
was

“highly

discriminatory

suggestive
animus).

circumstantial

While

one

stray

evidence”

remark

long

of

before

termination is insufficient to show pretext, Scott v. Suncoast
Beverage Sales, Ltd., 295 F.3d 1223, 1228-29 (11th Cir. 2002),

16

Eckhardt allegedly made a number of age-related comments over
the

years

216:3-7.

preceding

Miller’s

termination.

E.g.,

Pl.’s

Dep.

Furthermore, Miller testified that Eckhardt made at

least one comment at Jackson, the last place she worked.

Pl.’s

Dep. 212:4-213:3.
Additionally, Miller’s contention that Eckhardt harbors an
age animus is supported by Pat Gibby’s similar experience with
Eckhardt.

Gibby Aff. I ¶ 3-4.

Eckhardt’s comments to Miller

and his similar conduct toward Gibby standing alone arguably
present

sufficient

circumstantial

evidence

for

a

jury

to

conclude that Miller’s age was the cause of her termination.
Ross v. Rhodes Furniture, Inc., 146 F.3d 1286, 1291-92 (11th
Cir.

1998)

before

(holding

termination,

that

discriminatory

considered

with

comments

additional

made

evidence

long
of

pretext, were sufficient for a jury finding of discrimination).
But Miller does not rely solely on this circumstantial evidence
in opposing Advantage’s motion for summary judgment.
B.

Miller Discredits Advantage’s Productivity Reasons

Miller’s

evidence

also

demonstrates

weaknesses

in

Advantage’s productivity reasons that could cause a reasonable
juror to find them unworthy of belief.

See Combs v. Plantation

Patterns, 106 F.3d 1519, 1538 (11th Cir. 1997)(“[T]he district
court must evaluate whether the plaintiff has demonstrated ‘such
weaknesses, implausibilities, inconsistencies, or contradictions

17

in

the

employer’s

proffered

legitimate

reasons . . . that

a

reasonable factfinder could find them unworthy of credence.’”
(quoting Sheridan v. E.I. Dupont De Nemours & Co., 100 F.3d
1061, 1072 (3d Cir. 1996)(en banc))).
business

records

regarding

Although Advantage offers

Miller’s

alleged

substandard

productivity, Miller rebuts or explains all of these records.
See Wilson, 376 F.3d at 1088 (noting a plaintiff must meet the
defendant’s reasons head on and rebut them).
First, Miller contends that Advantage’s emails regarding
paperwork backlog while she was at Clarke relate to the backlog
left by her predecessor.
she

was

not

reasonable
emails

personally

juror

and

Pl.’s Decl. ¶ 5.

could

conclude

behind.
believe

that

her

Miller explains that

Pl.’s

Dep.

Miller’s

171:4-9.

explanation

performance

at

Clarke

A

of

the

was

not

substandard.
Second,

Miller

offers

reasons

to

discredit

Eckhardt’s

testimony that she was evaluated as an underperformer while she
was at Clarke and Elberton.

Besides directly disputing that she

was behind on paperwork beginning in 2008, Miller testified that
she received bonuses for productivity approximately every three
months until Eckhardt transferred her to Jackson.
8.

Id. at 191:6-

Miller also pointed to documents showing that she received

productivity

incentive

pay

at

18

the

beginning

of

her

Jackson

tenure

in

February

and

May

of

2009.

Pl.’s

Resp.,

Ex.

14,

Personnel Action Requests, ECF No. 17-16.
Additionally,

Miller’s

evidence

creates

genuine

factual

disputes regarding whether Miller was intentionally placed at
Jackson to fail.

She has presented evidence that she was given

additional responsibilities without enough support to complete
all of her paperwork and maintain a full patient caseload.

She

contends that this was done to ensure that she would not be able
to complete all of her purported duties and to create a record
for

her

termination.

informing

him

that

Miller

Miller’s

offers

an

predecessor

email
at

to

Jackson

Eckhardt
had

436

Profiles past due or due that month before Miller started there.
Shannon Sallee Email, ECF No. 17-8. Thus, Eckhardt knew there
were paperwork problems at Jackson that were not Miller’s fault.
Miller also points to an email between Bromley and Eckhardt in
which Bromley documented a complaint about Miller, and Eckhardt
responded “Thanks, Robin; this helps.”

“This Helps” Email, ECF

No. 17-20.
Miller also presents evidence that Eckhardt required her to
treat nonemergency walk-ins while other nurses were not required
to do so. Pl.’s Decl. ¶ 8; Meeks Decl. II ¶ 4.

A jury could

find that this was part of Eckhardt’s plan to make Miller fail
and

to

create

a

paper

trail

supporting

productivity reasons.

19

her

termination

for

Based

on

the

totality

of

the

evidence,

a

jury

could

reasonably conclude that Miller’s alleged productivity problems
were

fabricated

discrimination.

by

Advantage

and,

therefore,

a

pretext

for

See Damon, 196 F.3d at 1364 (holding that the

totality of the evidence precluded summary judgment).
C.

Lab and Medication Errors, Refusal to Check Her Email,
and Personal Complaints to Clients

Finally,

Advantage

contends

that

Miller

was

terminated

partially for lab and medication errors, refusing to check her
email,

and

making

personal

complaints

to

however, specifically denies these allegations.

clients.

Miller,

Pl.’s Dep. 291:

22-293:12; 302:23-308:15. She asserts that the allegations are
false and part of the plan to justify her eventual termination.
Id.

Again, when the totality of the evidence is considered, it

is clear that factual disputes exist as to whether Advantage’s
stated reasons for terminating Miller were a pretext for age
discrimination.

Damon, 196 F.3d at 1361-62 (finding that the

plaintiff’s assertion that “poor performance” reprimands were
fabricated to justify his termination was sufficient to survive
summary judgment where the supervisors made age-related comments
and other employees who made the same alleged mistakes were not
terminated).

20

CONCLUSION
Miller

has

pointed

to

sufficient

evidence

from

which

a

reasonable juror could conclude that Eckhardt harbored an age
animus against her.

A reasonable juror

could also conclude

that, because of this age animus, Eckhardt transferred Miller to
Jackson

and

placed

guaranteed to fail.

her

in

a

position

where

she

would

be

Thus, a reasonable juror could find that

Advantage’s performance-related reasons are pretextual and that
age

discrimination

termination.

is

the

more

likely

reason

for

Miller’s

The Court therefore denies Advantage’s motion for

summary judgment (ECF No. 14).

IT IS SO ORDERED, this 18th day of September, 2015.
S/Clay D. Land
CLAY D. LAND
CHIEF U.S. DISTRICT COURT JUDGE
MIDDLE DISTRICT OF GEORGIA

21