MILLER v. ADVANTAGE BEHAVIORAL HEALTH SYSTEMS
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
GLORIA JANE MILLER,
ADVANTAGE BEHAVIORAL HEALTH
CASE NO. 3:14-cv-45(CDL)
O R D E R
Plaintiff Jane Miller is a former employee of Defendant
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.
termination, the motion for summary judgment (ECF No. 14) is
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).
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
A fact is material if it is relevant or necessary to
the outcome of the suit.
Id. at 248.
A dispute is genuine if
the evidence would allow a reasonable jury to return a verdict
in favor of the non-movant.
The record viewed in the light most favorable to Miller,
the non-movant, reveals the following:
Miller’s Employment with Advantage
thereafter, Miller became the Crisis Stabilization Unit manager
voluntary demotion and pay decrease to a staff nurse position at
Advantage’s clinic in Clarke County because she did not like the
Miller was briefly employed with Advantage in 1998 and 1999.
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”).
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.
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.
Miller’s Work Performance at the Clarke Clinic
Advantage asserts that Miller was behind on paperwork at
explains, however, that when she
arrived at Clarke, she received a room of overdue paperwork that
became her responsibility.
Pl.’s Decl. ¶ 5.
It is undisputed
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.
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
generated on a monthly basis for all clinicians who were not
meeting 100% productivity.
Eckhardt Dep. 122:23-123:12, ECF No.
Miller claims, however, that productivity was based, at
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.
Miller clarifies, however, that
requirement at Clarke when she was not catching up on paperwork.
Id. at 265:18-24.
Eckhardt’s Age-Related Comments to Miller
ultimately fired Miller, began making age-related comments to
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.”
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.
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.
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
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.
Miller’s Tenure at the Elberton Clinic
Elberton clinic in 2008. Id. at 192:18-193:3.
Miller she was getting “sore (sic) because of [her] age” and
needed to go to Elberton because “it was a little bit quieter
Miller agreed to move to Elberton because she was
“tired of [Eckhardt] making comments about [her] age.”
exactly when every age-related comment occurred, it is clear
that, according to Miller, Eckhardt made comments repeatedly in
the years preceding her termination.
Id. at 198:25-210:15.
Frazier told her, however, that a complaint against
employees had complained to human resources and received the
Id. at 217:4-218:20.
although Eckhardt testified that she was an underperformer at
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.’”).
received bonus checks for productivity approximately every three
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.
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.
Pl.’s Decl. ¶ 7.
backlog of paperwork shortly before she left.
Pl.’s Resp. Ex.
6, Email from Shannon Sallee to Fred Eckhardt (Jan. 9, 2008),
ECF No. 17-8 (“Shannon Sallee Email”).
shortly after she was transferred to Jackson.
Pl.’s Decl. ¶ 8.
Nurses at other clinics were only required to
Id.; Meeks Decl. II ¶ 4.
According to Miller, Eckhardt and Robin Bromley, the lead
therapist at the Jackson clinic, decided to watch Miller closely
and record every error to create a record for her termination.
Eckhardt (July 2, 2009), ECF No. 17-20 (“‘This Helps’ Email”).
making life difficult” for Miller.
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
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
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
Macuba v. Deboer, 193 F.3d 1316, 1322-24 (11th Cir. 1999)
(internal quotations omitted) (“[A] district court may consider a
Although Advantage contends that Miller’s performance was
consistently substandard at Jackson, Miller points to evidence
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.
Advantage, Miller did not make any more errors with paperwork
than Bromley did.
Pl.’s Resp. Ex. 5, Meeks Aff. I ¶ 2, Sept.
errors were not uncommon at Advantage.
Pl.’s Resp. Ex. 15,
Bromley Decl. ¶ 3, ECF No. 17-17.
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.
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. . . .”).
she was the only nurse at Jackson and consistently saw more than
a full day of patients.
Pl.’s Decl. ¶ 9.
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
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.
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.
Miller states, however,
Pl.’s Dep. 297:20-301:13.
compliance expert, Matt Hurd, met with Miller.
schedule changes to allow Miller time to do paperwork between
Subsequently, Miller was issued a follow-up “letter of
concern” informing her of Hurd’s recommended changes.
Keo Copeland, the Jackson office manager, made an effort to
actually experienced the breaks due to double booking and walk-
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
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.
Pl.’s Decl. ¶ 10.
Christmas holidays, including Christmas Eve.
On January 12, 2010, Miller called Eckhardt to tell him
that she would be out of work sick with strep throat.
On January 16, 2010, Miller went to Eckhardt’s office
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.
nurse to replace Miller.
Copeland Dep. 41:6-7, ECF No. 28;
Pl.’s Resp. Ex. 11, Def.’s Resp. to Pl.’s Interrogs. ¶ 4, ECF
Advantage discharged her because of her age in violation of the
Pat Gibby’s Experience with Eckhardt
comments is substantiated by Pat Gibby.
Gibby, another former
Pl.’s Resp. Ex. 12, Gibby Aff. I ¶ 3, Jan. 12, 2012,
ECF No. 17-14.
According to Gibby, prior to her retirement,
Eckhardt told her that it was “time for [her] to go.”
she refused to resign, Advantage unjustifiably wrote her up for
violations, including infractions which Gibby claims she never
Miller offers two other incidents involving
Gibby in 2010 that both Gibby and Miller contend show bias and
Id. ¶ 4.
First, Gibby was told that
she would have to work the night shift instead of the day shift.
Second, she was told she had to work during a planned
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).
rid of her; she gave in and retired. Id.
Gibby is also Miller’s
friend and first cousin.
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).
either direct. . . or circumstantial evidence.”
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)).
that she has offered both direct and circumstantial evidence of
intentional age discrimination.
Eckhardt’s Age-Related Comments
standard” for when such evidence constitutes direct evidence of
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
Here, Eckhardt’s age-related comments occurred during the four
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
Wilson v. B/E Aerospace, Inc., 376 F.3d 1079, 1086
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
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.
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.
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
Nevertheless, whether or not the age-related comments
constitute direct evidence does not matter for this motion.
below, even if Eckhardt’s comments are only circumstantial evidence, summary
judgment is not appropriate.
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
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.
After Miller establishes a prima facie case, the burden of
production shifts to Advantage.
To rebut the presumption
of discrimination established by the prima facie case, Advantage
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.
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).
III. Miller’s Prima Facie Case
Miller has clearly established a prima facie case of age
terminated, was a member of the protected age group; she was
employee; and her termination constitutes an adverse employment
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.
F.3d at 1360 (reversing the district court’s determination that
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
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.
reasonable employer to terminate an employee, Miller must meet
the reasons head on and rebut them.
Chapman v. Al Transp., 229
F.3d 1012, 1030 (11th Cir. 2000)(en banc).
The precise issue
whether sufficient evidence exists from which a reasonable juror
could conclude that these articulated reasons are pretext for
discrimination. Id. at 1037.
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,
As explained below, Miller demonstrates pretext
both directly and indirectly, thus avoiding summary judgment.
Evidence of Age Animus
Although Eckhardt’s age-related comments may not be “direct
Damon, 196 F.3d at 1362-63 (finding that
a supervisor’s remark that he preferred “aggressive, young men”
termination is insufficient to show pretext, Scott v. Suncoast
Beverage Sales, Ltd., 295 F.3d 1223, 1228-29 (11th Cir. 2002),
Eckhardt allegedly made a number of age-related comments over
Furthermore, Miller testified that Eckhardt made at
least one comment at Jackson, the last place she worked.
Additionally, Miller’s contention that Eckhardt harbors an
age animus is supported by Pat Gibby’s similar experience with
Gibby Aff. I ¶ 3-4.
Eckhardt’s comments to Miller
and his similar conduct toward Gibby standing alone arguably
conclude that Miller’s age was the cause of her termination.
Ross v. Rhodes Furniture, Inc., 146 F.3d 1286, 1291-92 (11th
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.
Miller Discredits Advantage’s Productivity Reasons
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
reasons . . . that
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))).
Although Advantage offers
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.
Pl.’s Decl. ¶ 5.
Miller explains that
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.
Id. at 191:6-
Miller also pointed to documents showing that she received
Personnel Action Requests, ECF No. 17-16.
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.
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
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
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
reasonably conclude that Miller’s alleged productivity problems
See Damon, 196 F.3d at 1364 (holding that the
totality of the evidence precluded summary judgment).
Lab and Medication Errors, Refusal to Check Her Email,
and Personal Complaints to Clients
partially for lab and medication errors, refusing to check her
however, specifically denies these allegations.
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.
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
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
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
guaranteed to fail.
Thus, a reasonable juror could find that
Advantage’s performance-related reasons are pretextual and that
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
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