Moody et al v. The Arc of Howard County, Inc. et al
Filing
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MEMORANDUM. Signed by Judge James K. Bredar on 6/8/11. (hmls, Deputy Clerk)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
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LORENDA MOODY, et al.,
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Plaintiffs
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v.
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THE ARC OF HOWARD COUNTY, INC., *
et al.,
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Defendants
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CIVIL NO. JKB-09-3228
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MEMORANDUM
Lorenda Moody and Clarence Weefur (“Plaintiffs”) brought this suit against The Arc of
Howard County, Inc., Debbie Wagner, and Naomi Lyvers (“Defendants”), alleging age
discrimination under the Age Discrimination in Employment Act, 29 U.S.C. §§ 621, et seq.
(“ADEA”). Defendants now move to exclude certain witness depositions from evidence, for
summary judgment, and for sanctions under Fed. R. Civ. P. 11 and 28 U.S.C. § 1927. As to the
matters here decided, the issues have been briefed and no oral argument is required. Local Rule
105.6. For the reasons explained below, Defendants’ Motion For Summary Judgment (ECF No.
34) is GRANTED; the Motion To Quash (ECF No. 30) is DENIED AS MOOT; and, the Motion
For Sanctions (ECF No. 32) is DENIED IN PART and SET IN FOR HEARING IN PART.
I. BACKGROUND
A.
The Parties
Defendant Arc of Howard County (“The Arc”) is a nonprofit charity that works to
support Howard County’s mentally disabled population. (Def.’s Mem. Summ. J. 2, ECF No. 34-
1
1). Defendant Debbie Wagner is The Arc’s Associate Executive Director, and Defendant Naomi
Lyvers is its Director of Human Resources. (Pl.’s Resp. Sanctions 5, ECF No. 36-1). Plaintiffs
Lorenda Moody, age 66, and Clarence Weefur, age 63, are former employees of Defendants,
who were terminated for alleged negligence.
B.
Plaintiffs’ Employment and Termination
During their employment, Plaintiffs’ duties included picking up elderly, mentally
disabled patients from several group homes each morning, supervising them in various activities,
and driving them back to their homes. (Moody Dep. 203-204, ECF No. 34-21). On the morning
of May 13, 2009, Plaintiffs made their usual stop at the Cloudburst residence, which was home
to two of The Arc’s patients. Id at 18: 9-11. One of the patients, Denise Pickett, was not at the
stop that morning because of a dental appointment. (Moody Dep. 64:19-65:2). Plaintiffs,
however, did not notice Ms. Pickett’s absence and mistakenly believed that they had picked her
up. (Moody Dep. 43:6-14); (Weefur Dep. 19-5-10, 25-15-18, ECF No. 34-22).
After picking up their other patients, Plaintiffs brought them to The Arc for their
activities. Shortly after arriving at The Arc, at about 10:00 A.M., Moody noticed for the first
time that Ms. Pickett was not present. See (Moody Dep. 18:24-19:3). Still believing that Pickett
had boarded the van that morning, Moody assumed that she must have been somewhere at The
Arc. (Compl. 4); (Moody Dep. 65:17-22). When she could not find Pickett anywhere in the
building, Moody found Weefur and told him that Pickett was missing. Weefur and Moody then
informed their supervisor, Rhonda Braswell, of the situation.
When she learned that Ms. Pickett was missing, Braswell asked Moody if she was sure
that she and Weefur had transported Ms. Pickett that morning, noting that Pickett’s
transportation services had been cancelled that day. (Moody Termination Letter, ECF No. 43-
2
13, Ex. 10); (Weefur Termination Letter, ECF No. 34-14, Ex. 11). Moody responded not only
that they had picked up Ms. Pickett, but also that she was wearing a pink shirt and that she had
asked to use the restroom when the group arrived at The Arc. (Weefur Dep. 57:4-13). Weefur
did not dispute Moody’s story, as he too still believed that they had brought Ms. Pickett to The
Arc that morning.
Id at 57:21-58:13.
Moody, Weefur, Braswell, and several other staff
members then began to search the premises for Ms. Pickett.
After about 45 minutes of
searching, one of the employees spoke on the phone with the Cloudburst house manager, Betty
Caldwell, who reported that Ms. Pickett was safely at home with her, and that she had never
boarded Plaintiffs’ van. (Weefur Dep. 58:2-13).
C.
Plaintiffs’ Discipline and Termination
Sometime after Ms. Pickett was located, Defendants admonished both Moody and
Weefur for losing track of a patient in their care. Two days later, on May 15, 2009, Defendants
informed Plaintiffs by telephone that their employment would be terminated because of their
alleged negligence in losing track of Ms. Pickett. (Letters of Termination). On May 21, 2009,
Defendants mailed letters of termination to Plaintiffs, stating their reasons again in writing. Id.
The letters set out the details of the incident, and stated that Plaintiffs’ actions had raised “serious
concern about [their] ability to be responsible for the individuals left in [their] care on a daily
basis.” Id. The letters concluded by stating that Plaintiffs’ terminations were based on “the
aforementioned information and [their] inability to confirm or deny Denise’s attendance on the
van that morning...” Id.
D.
Plaintiffs’ EEOC Filings
Plaintiffs allege that on July 23, 2009, they completed and signed substantively identical
charges of age discrimination, which Weefur then mailed to the EEOC in the same envelope.
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(Pl.’s Resp. 3). On August 6, 2009, Defendants received a Notice of Charge of Discrimination
from the EEOC, stating that Weefur had submitted an “inquiry,” which was “minimally
sufficient to constitute a charge of employment discrimination,” but that the inquiry had not been
formally docketed as a charge. (Notice of Charge, ECF No. 34-19, Ex. 16). It explained that
Defendants would be served with another notice regarding whether or not the inquiry had
“become a charge.” Id. The notice said nothing about Moody.
Defendants never received further notice regarding Weefur’s charge, nor any notice of a
charge by Moody. (Def.’s Mem. Summ. J. 13). When defense counsel requested copies of the
EEOC’s records regarding Moody’s case under the Freedom of Information Act, the EEOC
denied the request, stating “We have no records for Charging Party Lorenda Moody and no
charge number was given. We could not locate the records needed.” (FOIA Response, ECF No.
34-17, Ex. 14).
On October 13, 2009, the EEOC sent a Form 5 Charge of Discrimination directly to
Plaintiffs’ counsel, along with a letter stating that the form must be signed and returned before
the EEOC could begin investigation of the charge. But, neither Plaintiffs nor their counsel
signed or returned the form. (Weefur Dep. 47:23-48:22); (Moody Dep. 255-256).
E.
Plaintiffs’ Complaint
Plaintiffs filed the instant complaint on December 3, 2009, naming The Arc, Debbie
Wagner, and Naomi Lyvers as defendants. (Compl., ECF No. 1). The complaint contains a
single count of age discrimination under the Age Discrimination in Employment Act, 29 U.S.C.
§§ 621, et seq., and requests $435,571.60 in compensatory damages, and $1,306,714.80 in
punitive damages. The compensatory portion of the request includes non-economic damages for
mental anguish. Id at 8.
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F.
Discovery and Motions
Defendants deposed Weefur on January 31, 2011, and Moody on February 3, 2011.
Among other things, Plaintiffs confirmed the version of events set out in their termination letters.
They admitted that they mistakenly believed they had picked up Ms. Pickett and brought her to
The Arc, that Moody noticed when they arrived that Ms. Pickett was absent and looked for her
throughout the building, that they notified Rhonda Braswell that Ms. Pickett was missing, that
Moody told Braswell that Pickett was wearing a pink shirt and had asked to go to the bathroom,
and that she and several other staff members looked for Pickett until it was discovered that she
was at home with her house manager, Ms. Caldwell. (Moody Dep. 19, 42:12-43:14, ); (Weefur
Dep. 17-19, 22, 56-58). Additionally, Weefur testified that he did not have personal knowledge
of any facts or evidence to support his claim of age discrimination, and Moody indicated she had
no personal knowledge of any younger employees who were disciplined less harshly for similar
conduct. (Weefur Dep. 109); (Moody Dep. 148-151).
Several weeks after the depositions, on February 22, 2011, Defendants served Plaintiffs
with notice of their intent to file a motion for sanctions under Rule 11 if Plaintiffs did not
withdraw their complaint. (Def.’s Mem. Sanctions 2, ECF No. 32-1). Defendants alleged four
grounds for sanctions: (1) Plaintiffs failed to exhaust their administrative remedies; (2) Plaintiffs
had no factual basis for their claims of age discrimination; (3) Plaintiffs unlawfully sued private
individuals under the ADEA; and (4) Plaintiffs had unlawfully demanded non-economic
compensatory damages.
Exactly 21 days later, Plaintiffs withdrew their demand for non-
economic damages, but declined to otherwise change their position. Id.
Discovery closed on March 11, 2011.
On March 14, Plaintiffs moved to extend
discovery, but the Court denied the motion. Shortly thereafter, Defendants filed the instant
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motions to exclude evidence, for summary judgment, and for sanctions against Plaintiffs,
plaintiffs’ counsel, and counsel’s law firm.
II. STANDARD OF REVIEW
A.
Summary Judgment
Fed. R. Civ. P. 56(a) directs district courts to grant summary judgment if the moving
party shows “that there is no genuine dispute as to any material fact” and that it is “entitled to
judgment as a matter of law.” If the moving party carries this burden, then summary judgment
will be denied only if the opposing party can identify specific facts, beyond the allegations or
denials in the pleadings, that show a genuine issue for trial. Fed. R. Civ. P. 56(e)(2). To carry
these respective burdens, each party must support its assertions by citing particular parts of
materials in the record constituting admissible evidence. Fed. R. Civ. P. 56(c)(1)(A). The court
will then assess the merits of the motion, viewing all facts and reasonable inferences in the light
most favorable to the opposing party. Scott v. Harris, 550 U.S. 372, 378 (2007); Iko v. Shreve,
535 F.3d 225, 230 (4th Cir. 2008).
B.
Fed. R. Civ. P. 11
Fed. R. Civ. P. 11(b) states in pertinent part:
By presenting to the court a pleading, written motion, or other paper -- whether by
signing, filing, submitting, or later advocating it -- an attorney or unrepresented
party certifies that to the best of the person’s knowledge, information, and belief,
formed after an inquiry reasonable under the circumstances:
(1) it is not being presented for any improper purpose, such as to harass, cause
unnecessary delay, or needlessly increase the cost of litigation;
(2) the claims, defenses, and other legal contentions are warranted by existing law
or by a nonfrivolous argument for extending, modifying, or reversing existing law
or for establishing new law;
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(3) the factual contentions have evidentiary support or, if specifically so
identified, will likely have evidentiary support after a reasonable opportunity for
further investigation or discovery...
A court considering sanctions under Rule 11 must evaluate an attorney’s conduct under a
standard of objective reasonableness. Hunter v. Earthgrains Co. Bakery, 281 F.3d 144, 153 (4th
Cir. 2002). Conduct violates Rule 11 if an objectively reasonable attorney “in like circumstances
could... [not] have believed his actions to be legally justified.” Id. (internal quotations omitted).
Specifically, a legal contention violates Rule 11 when it “has absolutely no chance of success
under the existing precedent,” and any “reasonable attorney would recognize it as frivolous.” In
re Sargent, 136 F.3d 349, 352 (4th Cir. 1998). A district court’s decision to impose sanctions is
discretionary. Chaudry v. Gallerizzo, 174 F.3d 394, 410 (4th Cir. 1999).
C.
28 U.S.C. § 1927
28 U.S.C. § 1927 states:
Any attorney or other person admitted to conduct cases in any court of the United
States or any Territory thereof who so multiplies the proceedings in any case
unreasonably and vexatiously may be required by the court to satisfy personally
the excess costs, expenses, and attorneys' fees reasonably incurred because of
such conduct.
To impose sanctions under this statute, the court must find that the attorney has acted in
bad faith and that his actions have resulted in excess costs for the opposing party. Thomas v.
Ford Motor Co., 244 Fed. App’x. 535, 539 (4th Cir. 2007). If the court so finds, the decision to
impose sanctions is discretionary. Salvin v. American Nat. Ins. Co., 281 Fed. App’x. 222, 225.
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III. ANALYSIS
A.
Summary Judgment1
In support of their motion for summary judgment, Defendants contend, inter alia, that
Plaintiffs have failed to adduce sufficient evidence to prove age discrimination under the ADEA.
The Court agrees.
To succeed on an ADEA claim, “a plaintiff must prove by a preponderance of the
evidence (which may be direct or circumstantial) that age was the ‘but for’ cause of the
challenged employer decision.” Gross v. FBL Financial Services, Inc., 129 S.Ct. 2343, 2351
(2009). Where a plaintiff elects to rely on circumstantial evidence, courts in this circuit analyze
the claim under the familiar McDonnell-Douglas burden-shifting framework. Bodkin v. Town of
Strasburg, 386 Fed App’x. 411, 413-414 (4th Cir. 2010). To make a prima facie case under
McDonnell-Douglas, a plaintiff must show, among other things, that he was meeting his
employer’s legitimate expectations at the time of the challenged employment action.
Id.
Importantly, this element cannot be established if the plaintiff admits to the performance or
conduct problems that led to his discharge. See Hill v. Lockheed Martin Logistics Mgmt., 354
F.3d 277, 298 (4th Cir. 2004). Furthermore, even if a plaintiff succeeds in making out a prima
facie case, he must still demonstrate that any legitimate explanation offered by the employer is a
pretext for discrimination. Id at 285.
1
As discussed below, Defendants’ allegations regarding Plaintiffs’ alleged failure to exhaust their administrative
remedies raise doubts as to this Court’s subject matter jurisdiction. The Court proceeds directly to the merits,
however, without resolving the jurisdictional issue, because it finds that Plaintiffs’ assertion of jurisdiction, while
questionable, is not so frivolous as to warrant dismissal under Rule 12(b)(1). See Kerns v. U.S., 585 F.3d 187, 193
(4th Cir., 2009) (citing Bell v. Hood, 327 U.S. 678, 682 (1946)) (“A trial court should dismiss under Rule 12(b)(1)
only when the jurisdictional allegations are clearly immaterial, made solely for the purpose of obtaining jurisdiction
or where such a claim is wholly unsubstantial and frivolous.”) (internal quotations omitted). Because the Court
declines to dismiss the case on jurisdictional grounds, it is entitled to assume jurisdiction and proceed to the merits.
Id at 193, n.6.
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Here, because Plaintiffs have admitted the misconduct that Defendants cited as the reason
for their termination, they cannot show that they were meeting Defendants’ legitimate
expectations. Plaintiffs’ letters of termination offer the following facts as the basis for their
discharge: that Plaintiffs arrived at the Arc on the morning of May 13, 2009 without Ms. Pickett;
that Moody began looking for Ms. Pickett throughout the building, believing she was missing;
that Moody notified her supervisor, Rhonda Braswell, when she could not find Ms. Pickett; that
Moody told Braswell that she and Weefur had picked up Ms. Pickett and brought her to the Arc,
and that she was wearing a pink shirt and had asked to go to the bathroom; and, that Plaintiffs,
Braswell, and several other staff searched for Ms. Pickett until they learned from the Cloudburst
house manager that she was safely at home. Id. Plaintiffs have admitted every one of these
facts, and have even testified to their subjective beliefs that their loss of Ms. Pickett could have
led Defendants to conclude that they were not capable of doing their jobs, and that it was likely a
factor in their terminations. (Weefur Dep. 81:19-24); (Moody Dep. 205:18-25)
Plaintiffs therefore cannot establish a prima facie case of age discrimination under the
McDonnell-Douglas framework. The only alternative means by which Plaintiffs could raise a
triable issue of fact would be to offer direct evidence that their age actually motivated
Defendants’ decision to fire them. As discussed further below, Plaintiffs have identified no such
evidence. Defendants are thus entitled to summary judgment.2
B.
Motion To Quash
In view of the Court’s award of summary judgment, Defendants’ motion to quash is
moot.
2
Defendants Wagner and Lyvers are also entitled to summary judgment on the alternative grounds that they are not
proper defendants to this suit. See infra.
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C.
Sanctions
Defendants ask this Court to impose sanctions on Plaintiffs, their counsel, and counsel’s
firm pursuant to Fed. R. Civ. P. 11 and 28 U.S.C. § 1927 on the following grounds: (1) Plaintiffs
failed to exhaust their administrative remedies by filing formal charges of age discrimination
with the EEOC prior to filing this suit; (2) Plaintiffs have no evidence of age discrimination; (3)
Defendants Wagner and Lyvers, as individuals, are not liable under the ADEA; and (4) Plaintiffs
initially sought damages that are unrecoverable under the ADEA as a matter of law.
As an initial matter, the Court denies Defendants’ motion in the following respects: (1)
the Court will not consider imposing sanctions on Plaintiffs Lorenda Moody or Clarence Weefur,
as it finds them to have relied entirely on the advice of counsel in electing to continue to press
ahead with this lawsuit; (2) the Court will consider imposing sanctions on Plaintiffs’ counsel,
Jason Ostendorf, but only with regard to conduct beginning 21 days after he received
Defendants’ Notice of Rule 11 Violations (ECF Nos. 32-11 & 32-12); (3) as Defendants have not
alleged that Plaintiffs’ counsel acted in bad faith, the Court will not consider imposing sanctions
under § 1927, See Thomas v. Ford Motor Co., 244 Fed. App’x. at 539 (“Section 1927 requires a
finding of counsel's bad faith as a precondition to the imposition of fees”) (internal quotations
omitted); and, (4) the Court will set in for hearing any remaining matters raised by Defendants
that appear to support the imposition of sanctions, and will issue a final ruling only upon the
conclusion of such hearing. With these limitations in mind, the Court will address Defendants’
arguments in turn.
1.
Damages
Plaintiffs initially sought to recover $400,000 in compensatory damages for mental
anguish, which are not recoverable under the ADEA as a matter of law. C.I.R. v. Chleier, 515
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U.S. 323, 326 (1995), superseded by statute on other grounds. However, Plaintiffs withdrew
their demand on March 15, 2011, exactly 21 days after Defendants served them with notice of
their intent to file this motion. (Def.’s Mem. Sanctions 11-12, 16). Because Plaintiffs withdrew
their demand within the 21 day “safe harbor” provided by Rule 11, the demand is not
sanctionable under that rule. See Brickwood Contractors, Inc. v. Datanet Engineering, Inc., 369
F.3d 385, 389 (4th Cir. 2004).
2. Individual Liability
Plaintiffs’ complaint names two individual Arc employees, Debbie Wagner and Naomi
Lyvers, as defendants. Defendants argue that Plaintiffs’ counsel violated Rule 11 by maintaining
this suit against Wagner and Lyvers because settled case law establishes that the ADEA does not
create a right of action against individual employees. Plaintiffs argue in response that Wagner
and Lyvers are liable as agents of the Arc, because the ADEA defines employer to include an
employer’s agents. (Pl.’s Resp. Sanctions 5).
Notwithstanding the ADEA’s reference to agents, the Fourth Circuit has consistently held
that individuals are not proper defendants to ADEA suits. See, e.g., Jones v. Sternheimer, 387
Fed. App’x. 366, 368 (4th Cir. 2010); McNeal v. Montgomery County, 307 Fed. App’x. 766, 775
n.6 (4th Cir. 2009); Jiggetts v. Sharpe, 141 Fed. App’x. 162, 163 (4th Cir. 2005). Indeed, the
Fourth Circuit rejected Plaintiffs’ interpretation of the ADEA more than a decade ago in
Birkbeck v. Marvel Lighting Corp., where it held that the reference to agents was merely “an
unremarkable expression of respondeat superior,” which Congress intended only to clarify that
employers are liable for the discriminatory acts of their employees, not to create liability for the
employees themselves. In view of this well-settled authority, Plaintiffs’ argument, and their
claims against Wagner and Lyvers, are without any basis in law.
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Furthermore, the Court is particularly troubled by the fact that Plaintiffs’ counsel refused
to voluntarily dismiss the case against Wagner and Lyvers after Defendants supplied him with
the relevant case law in their Notice of Rule 11 Violations (ECF Nos. 32-11 & 32-12). Also
troubling is the fact that Plaintiffs’ counsel argued to this Court that Wagner and Lyvers were
liable under the ADEA as The Arc’s agents even though Defendants’ Notice specifically referred
him to the Birkbeck decision, which flatly rejects this construction of the Act. Counsel’s conduct
in this regard appears to have been objectively unreasonable, at the least. Accordingly, the
matter will be set in for a hearing to determine whether sanctions should be imposed on
Plaintiffs’ counsel for persisting with the claims against Defendants Wagner and Lyvers after
receiving Defendants’ Notice of Rule 11 Violations.
3. Exhaustion of Administrative Remedies
The ADEA requires prospective plaintiffs to file charges of age discrimination with the
EEOC at least 60 days before bringing a suit in federal court.
29 U.S.C. § 626(d)(1).
Defendants allege that a reasonable inquiry by Plaintiffs’ counsel would have revealed that
Plaintiffs never filed formal charges with the EEOC, and that this Court therefore has no subject
matter jurisdiction over Plaintiffs’ case. Plaintiffs concede that they did not file an EEOC Form
5 Charge of Discrimination, which is the official document that complainants must sign in order
to initiate an investigation. However, Plaintiffs allege that they filed a different form, called an
Intake Questionnaire (“IQ”), in which they provided information about themselves, their
employer, and the nature of their allegations. Further, Plaintiffs allege that the EEOC refers to
Weefur’s IQ as a “minimally sufficient charge” in a document provided to Defendants during
discovery. Weefur has submitted an affidavit, swearing that he personally mailed both his and
Moody’s IQs to the EEOC in the same envelope. Defendants do not dispute that Weefur filed
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his own IQ, as he has produced a signed copy, date-stamped by the EEOC. Moody, however,
has not been able to produce a signed copy of her IQ, and the EEOC has no record of ever
receiving any documents from her. Defendants maintain that, in light of these facts, Moody
cannot show that she filed an IQ. Even if she could, Defendants also maintain that an IQ is not a
charge under the ADEA. Plaintiffs maintain that an IQ is a charge and that Weefur’s affidavit
regarding his mailing of the IQs creates a factual dispute, which must be decided by a jury.
The Court does not find Plaintiffs’ argument in this regard to be frivolous. As an initial
matter, both parties have failed to identify and apply the relevant case law. The question of
whether an IQ may serve as a charge under the ADEA was decided by the U.S. Supreme Court
in Federal Express v. Holowecki, 128 S.Ct. 1147, 1157-58 (2008). There, the Court held that an
IQ may serve as a charge if: (1) it contains the information required by EEOC regulations, “i.e.,
an allegation and the name of the charged party”; and, (2) it can be “reasonably construed as a
request for the agency to take remedial action to protect the employee’s rights or otherwise settle
a dispute between the employer and the employee.” Id.
Weefur’s IQ names the Arc as the
charged party, alleges age discrimination, and has an “x” marked next to a statement that reads in
pertinent part, “I want to file a charge of discrimination, and I authorize the EEOC to look into
the discrimination I described above.” (Weefur IQ 4, ECF No. 36-8, Ex. 7). Without deciding
the matter, the Court finds that an objectively reasonable attorney could have concluded that
such a document constituted a charge under the Holowecki standard.
Secondly, the Court also finds that counsel’s assertion of subject matter jurisdiction over
Moody’s claim is not objectively unreasonable. The purposes of the ADEA’s filing requirement,
like those of other civil rights statutes, are to put the charged party on notice and to facilitate
conciliation by the EEOC. Zhang v. Science & Technology Corp., 332 F.Supp.2d 864, 867 (D.
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Md., 2004). Under certain circumstances, where these purposes are sufficiently achieved, courts
will allow plaintiffs to proceed with suits against defendants not named in their EEOC charges.
Id. It is not inconceivable that the factors that would justify such an allowance, namely an
identity of interest between named and unnamed parties, receipt of notice of the EEOC charge by
the unnamed party, and absence of prejudice, might also justify allowing the addition of an
unnamed plaintiff. Here, Plaintiffs’ counsel received correspondence from the EEOC stating that
it had received a “minimally sufficient” charge of discrimination against The Arc and that it had
notified The Arc of the charge. In light of this representation, an objectively reasonable attorney
could have concluded that, even if the EEOC never received Moody’s charge, a federal court
could still exercise jurisdiction over her claim on the grounds that The Arc was already on notice
of an identical claim, and that the EEOC had already had an opportunity to conciliate.3
For these reasons, the Court will not impose sanctions based on Plaintiffs’ alleged failure
to exhaust their administrative remedies.
4. Legal and Factual Bases of Claims
Defendants maintain that Plaintiffs’ testimony that they have no personal knowledge of
facts or evidence relating to age discrimination shows conclusively that their claim is meritless.
From this, they argue that Plaintiffs’ counsel violated Rule 11 by refusing to voluntarily dismiss
the case after Plaintiffs gave their depositions. Plaintiffs’ personal knowledge, however, is not
determinative of whether or not evidence exists that, as a legal matter, might support their
claims, and the Court is therefore reluctant to give dispositive legal effect to their testimony.
Instead, the Court will look to the facts alleged in the complaint, and in Plaintiffs’ responses in
opposition to sanctions and summary judgment to determine whether the alleged evidentiary
3
The Court expresses no opinion with regard to the ultimate merits of such an argument, but simply notes the
absence of any facts or law that would render it objectively frivolous.
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deficiency was severe enough to oblige Plaintiffs’ counsel to voluntarily dismiss the case. The
Court finds that it was.
First, the complaint contains no factual allegations that could support a claim of age
discrimination, either directly or under the McDonnell-Douglas burden shifting framework. The
complaint admits most of the relevant facts surrounding Plaintiffs’ loss of Ms. Pickett, but claims
that this was a “bogus” reason for their termination because: (1) Defendants did not discipline
the Cloudburst house manager, whom Plaintiffs claim was responsible for informing them of Ms.
Pickett’s absence; (2) Defendants did not discipline their supervisor, Rhonda Braswell, who
“should have had knowledge of the disabled patient’s whereabouts, but nevertheless joined in
and encouraged the search”; and, (3) “Ms. Moody and Mr. Weefur’s genuine concern for the
disabled patient, swift action, and leadership in enlisting the aid of other employees was
commendable, and directly in-line with standard procedures and common sense.” (Compl. 4).
Finally, the complaint summarily concludes that Plaintiffs’ age was the “real reason” for their
termination, based entirely on the alleged fact that Defendants “harassed” Plaintiffs “because of
their age” after they lost Ms. Pickett. The alleged “harassment” consisted of the following:
. . . on May 13, 2009, TAHC harassed Ms. Moody and Mr. Weefur because of
their age. That day, TAHC confronted Ms. Moody and Mr. Weefur about the
May 13, 2009 events with rude gestures, such as raised eyebrows during the
conversation, which conveyed the unmistakable sentiment that Ms. Moody and
Mr. Weefur were just crazy old folk who simply did not get it. During the
conversations, TAHC engaged in intimidating stare-downs, as if to assert some
type of supreme authority. TAHC talked-down to Ms. Moody and Mr. Weefur
with an arrogant, condescending tone. The gestures, tone, and discourse were
humiliating and completely unprofessional. Upon information and belief, TAHC
never directed such patronization at the younger employees. (Compl. 5).
That these allegations are frivolous requires little explanation. The house manager,
whatever her duties, could not possibly have been responsible for Plaintiffs’ believing they
picked up and transported a patient who in fact never set foot in their vehicle; and, Plaintiffs’
15
supervisor could hardly be faulted for searching for a patient whom one of her subordinates had
just told her went to bathroom on the premises, wearing a pink shirt, and never returned. As to
Defendants’ alleged “tone,” and “raised eyebrows,” etc., the Court notes simply that such
grievances, without more, are not the stuff of pleading in a federal lawsuit for employment
discrimination.
Next, the grounds advanced by Plaintiffs in opposing sanctions and summary judgment
make clear that they have no more evidence of age discrimination now, after a years’ worth of
discovery, than the day they filed the complaint. Plaintiffs’ briefs on these issues each identify
the same four allegations as evidence of age discrimination. First, Plaintiffs allege that they were
replaced by younger employees. (Def.’s Resp. Sanctions 3); (Def.’s Resp. Summ. J. 5). As
discussed above, however, this fact does not raise an inference of discrimination unless Plaintiffs
were meeting their employer’s legitimate expectations, which Plaintiffs concede they were not.
Second, Plaintiffs reiterate that Rhonda Braswell was not disciplined even though she
was allegedly also responsible for knowing Ms. Pickett’s location. (Def.’s Resp. Sanctions 3);
(Def.’s Resp. Summ. J. 4-5). In addition to the inherent illogic of this argument discussed
above, discovery has revealed that its factual premise is faulty as well. Contrary to Plaintiffs’
assertions, Defendant Lyvers testified that Braswell’s responsibilities did not include monitoring
the location of individual patients. (Lyvers’ Dep. 48, ECF No. 39-2, Ex. 2).
Ostendorf:
“As a supervisor having greater responsibilities wasn’t it also important
for Rhonda Braswell to be aware of where the individuals were?
Lyvers:
“No... it would not be her responsibility on a day by day [sic] to know
where everybody is. It’s more the responsibility of the people working
with that case.”
In continuing to argue that Braswell “has even more responsibility,” Plaintiffs neither
acknowledge Lyvers’ testimony nor offer evidence to refute it.
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Third, Plaintiffs allege that Defendants “[do] not fire employees for worse conduct.” In
support, they allege that an employee named Mark Breaux, “was not initially fired for allegedly
yelling profanities at an intellectually disabled individual under the Arc’s care.” (Def.’s Resp.
Sanctions 3); (Def.’s Resp. Summ. J. 5). Plaintiffs neglect, however, to mention Breaux’s age,
or explain how he was in any other way similarly situated with them. Indeed, they make no
effort whatsoever to explain how this allegation raises an inference of age discrimination.
Finally, Plaintiffs allege that “Lyvers... admitted that even if plaintiffs had complied with
the Arc’s policy for locating missing individuals, they still would have been fired.” (Def.’s
Resp. Sanctions 3); (Def.’s Resp. Summ. J. 4-5). The Court does not fully understand the thrust
of this argument. Plaintiffs offer no explanation of what policy this alleged “admission” refers
to, or how the statement in any way indicates age discrimination. Nevertheless, regardless of
what policy the statement does refer to, it manifestly does not refer to the policy against losing
elderly, disabled patients, which Plaintiffs were terminated for violating.
Incredibly, Plaintiffs conclude their summary judgment opposition by asserting that they
“have additional information of age discrimination,” which they then decline to share with the
Court on the grounds that the preceding allegations are sufficient to create a jury issue, and that
“the purpose of a summary judgment motion is not to prompt a plaintiff’s entire trial strategy.”
Id at 5. As the Court has just demonstrated, however, no reasonable attorney could believe that
the foregoing allegations create a triable issue of fact with respect to age discrimination; and, for
this very reason, the Court does not find Plaintiffs’ claim that they possess more evidence to be
credible.
Therefore, based on the existing record, the Court can only infer that any reasonable
attorney would have realized that this case was frivolous in its entirety at least by the close of
17
discovery, and that counsel’s refusal to voluntarily dismiss the case after that point was
objectively unreasonable. Accordingly, the matter will be set in for a hearing to determine
whether sanctions should be imposed on Plaintiffs’ counsel for refusing to voluntarily dismiss
the case after discovery revealed no additional evidence of age discrimination.
IV.
CONCLUSION
Accordingly, an order shall enter GRANTING Defendants’ Motion For Summary
Judgment (ECF No. 34), DENYING AS MOOT Defendants’ Motion To Quash (ECF No. 30),
and GRANTING IN PART and SETTING IN FOR HEARING IN PART Defendants’ Motion
For Sanctions (ECF No. 32).
Dated this 8th day of June, 2011
BY THE COURT:
/s/
James K. Bredar
United States District Judge
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