Brewer v. Alliance Healthcare Services, Inc.
MEMORANDUM OPINION re 60 Order on Motion for Summary Judgment. Signed by District Judge Sharion Aycock on 5/6/2013. (psk)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF MISSISSIPPI
DANA M. BREWER
CAUSE NO.: 4:11CV130-SA-JMV
ALLIANCE HEALTHCARE SERVICES
d/b/a ALLIANCE ONCOLOGY
Defendant Alliance Healthcare Services (Alliance) seeks summary judgment with regard
to Plaintiff’s age and gender discrimination claims. As Plaintiff has failed to present sufficient
evidence to establish a genuine dispute of material facts as to those claims, Alliance’s Motion for
Summary Judgment  is GRANTED.
Factual and Procedural Background
Dana Brewer was hired as a part-time radiation therapist for Bethesda Cancer Center, a
privately-owned entity, in January 2005. Initially, she was stationed at the Cancer Center in
Greenville, but in April of 2005, she was transferred to the facility in Clarksdale, Mississippi for
full-time work as a radiation therapist.
In both places, Brewer worked with Dr. William
Richards, the medical director of Bethesda Cancer Center. Dr. Richards worked three days a
week in Greenville, but two days a week, he, his assistant Cindi Underwood, and another
radiation therapist Lana Aguzzi, traveled to Clarksdale. The three days a week that Dr. Richards
was not in Clarksdale, Brewer and Jennifer Corso, a receptionist, were the primary employees at
the Clarksdale facility.
In November of 2007, Alliance Healthcare Services, a publicly-traded corporation,
purchased Bethesda and Bethesda’s employees filled out paperwork to become Alliance
In the Fall of 2008, Plaintiff left the Clarksdale facility early without informing her
supervisors she was leaving. Cindy Wells, the Director of Operations for Alliance, came to the
Clarksdale facility to talk to Brewer regarding her leaving the facility early without completing
her work tasks. Wells memorialized that meeting with a note to Brewer’s personnel file. That
note indicated that Wells additionally addressed “Dana’s general negative behavior that often
permeates the office,” and listed that Brewer has a “tendency to get angry and say inappropriate
things, both to co-workers and often within earshot of the patients.” Further, Wells noted that
other staff members expressed concern that Brewer “conducts herself in a way not conducive to
a positive work environment.” Alliance contends Brewer’s outbursts of anger and complaints
permeated the work environment throughout her employment.
In September of 2010, Cindy Wells responded to an email sent by Brewer asking for
“areas of my performance that you feel I need to focus on before the next appraisal.” Wells
identified Brewer’s continued “behavioral issues” that had been discussed before.
specifically mentioned as problematic:
The constant complaining about anything from “why isn’t this patient  being
treated in Memphis,” to whether the physics, dosimetry and therapist support
there is adequate for you, speaking negatively in a loud voice so that our
competency is questioned by patients, to putting notes in a patient’s chart that
are inappropriate, to complaining that we are not providing the right amount of
staff at the center to support what is often times less than 6 patients a day, is
creating a hostile work environment that is not acceptable. I have been told
that people are dreading Clarksdale days because of your ongoing complaining
about pretty much everything. . . . If you are not happy and cannot change
your attitude to one that is acceptable, you need to find a place you can work
that doesn’t make you so unhappy, or I’ll have to make some difficult
On October 17, 2010, Jennifer Corso, the receptionist at the Clarksdale Alliance facility,
emailed Cindy Wells complaining about Dana Brewer’s attitude in the office. Specifically, she
noted that Brewer disrespected Alliance, Dr. Richards, and her co-workers, constantly stated how
unhappy she was with Alliance, was never in a good mood, pitched temper tantrums, stomped
her feet, got red in the face, and raised her voice. Corso went on to note, “I am truly concerned
that she might actually hurt someone and honestly feel that could even be me.” Cindy Wells
testified that because Brewer failed to correct her abusive behavior, she was terminated in
December of 2010 for questioning the doctor on treatment plans, having angry outbursts in the
office, oversharing her personal issues at the office, and just generally not functioning well as a
team member and not living the values of the company.
At the time of her discharge, Dana Brewer was a 52 year old female. Brewer contends
she was terminated in violation of Title VII and the Age Discrimination in Employment Act
(ADEA). In support of her contention that she was discrimination against based on her gender,
age, or age and gender, she cites several statements allegedly made by Dr. William Richards.
Brewer also notes that because others in her office engaged in the same type of behavior she did
and were not punished, she has met her burden for providing evidence of discrimination.
Summary Judgment Standard
Summary judgment is warranted under Rule 56(a) of the Federal Rules of Civil
Procedure when the evidence reveals there is no genuine dispute regarding any material fact and
that the moving party is entitled to judgment as a matter of law. The rule “mandates the entry of
summary judgment, after adequate time for discovery and upon motion, against a party who fails
to make a sufficient showing to establish the existence of an element essential to that party’s
case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477
U.S. 317, 322, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986).
Conclusory allegations, speculation, unsubstantiated assertions, and legalistic arguments
are not an adequate substitute for specific facts demonstrating a genuine issue for trial. TIG Ins.
Co. v. Sedgwick James of Wash., 276 F.3d 754, 759 (5th Cir. 2002). “A party asserting that a
fact cannot be or is genuinely disputed must support the assertion by citing to particular parts of
materials in the record . . . or showing that the materials cited do not establish the absence or
presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to
support the fact.” FED. R. CIV. P. 56(c)(1). The court is only obligated to consider cited materials
but may consider other materials in the record. FED. R. CIV. P. 56(c)(3). The court must resolve
factual controversies in favor of the nonmovant “but only when there is an actual controversy,
that is, when both parties have submitted evidence of contradictory facts.” Little v. Liquid Air
Corp., 37 F.3d 1069, 1075 (5th Cir. 1994). When such contradictory facts exist, the court may
“not make credibility determinations or weigh the evidence.” Reeves v. Sanderson Plumbing
Prods., Inc., 530 U.S. 133, 150, 120 S. Ct. 2097, 147 L. Ed. 2d 105 (2000).
Discussion and Analysis
Title VII prohibits employers from discriminating based on an individual’s race, color,
religion, sex, or national origin. 42 U.S.C. § 2000e-2(a). The ADEA makes it “unlawful for an
employer to fail or refuse to hire or to discharge any individual or otherwise discriminate against
any individual with respect to his compensation, terms, conditions, or privileges of employment,
because of such individual’s age.” 29 U.S.C. § 623(a)(1). Where, as here, a plaintiff only relies
on circumstantial evidence, we apply the framework from McDonnell Douglas Corp. v. Green,
411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973), for both Title VII and ADEA claims.
Turner v. Baylor Richardson Med. Ctr., 476 F.3d 337, 345 (5th Cir. 2007) (Title VII); Moss v.
BMC Software, Inc., 610 F.3d 917, 922 (5th Cir. 2010) (ADEA). Pursuant to that framework,
Brewer first must make a prima facie case of discrimination based on age or gender. Vaughn v.
Woodforest Bank, 665 F.3d 632, 636 (5th Cir. 2011); Rachid v. Jack In The Box, Inc., 376 F.3d
305, 309 (5th Cir. 2004). To establish a prima facie case, Brewer must show that she: (1) was a
member of a protected group; (2) qualified for the position in question; (3) was subjected to an
adverse employment action; and (4) received less favorable treatment due to her membership in
the protected class than did other similarly situated employees who were not members of the
protected class, under nearly identical circumstances. Wesley v. Gen. Drivers, Warehousemen &
Helpers Local 745, 660 F.3d 211, 213 (5th Cir. 2011); Smith v. City of Jackson, Miss., 351 F.3d
183, 196 (5th Cir. 2003). Brewer can also establish her prima facie case of gender discrimination
by showing that she was replaced by someone who is not a member of the protected class. As to
her age discrimination claim, Brewer can satisfy the fourth prong by showing that she was
“either i) replaced by someone outside the protected class, ii) replaced by someone younger, or
iii) otherwise discharged because of [her] age.” Rachid, 376 F.3d at 309 (citation omitted).
If Brewer makes a prima facie case, the burden then shifts to Alliance to “articulate a
legitimate, non-discriminatory reason” for terminating her. Vaughn, 665 F.3d at 636. If it does
so, Brewer must, as to her Title VII claim, “offer sufficient evidence to create a genuine issue of
material fact either (1) that [Alliance’s] reason is not true, but is instead a pretext for
discrimination (pretext alternative); or (2) that [Alliance’s] reason, while true, is only one of the
reasons for its conduct, and another ‘motivating factor’ is [Brewer’s] protected characteristic
(mixed-motives alternative).” Id. (citation omitted). As to her ADEA claim, Brewer “may show
pretext either through evidence of disparate treatment or by showing that the employer’s
proffered explanation is false or unworthy of credence.” Moss, 610 F.3d at 922 (internal
quotation marks and citation omitted). Unlike Title VII, it is insufficient under the ADEA to
show that discrimination was a motivating factor; Brewer must show that age was the “but for”
cause of the challenged adverse employment action. Id. at 928 (citing Gross v. FBL Fin. Servs.,
Inc., 557 U.S. 167, 173-78, 129 S. Ct. 2343, 174 L. Ed. 2d 119 (2009)).
Plaintiff has carried her burden of proving a prima facie case under the ADEA. She was
fifty-two years old at the time of her termination in December 2010, see 29 U.S.C. § 631(a)
(protecting individuals “who are at least 40 years of age”), and she was indisputably qualified for
the position of radiation therapist. Plaintiff was terminated and replaced by someone outside the
protected class. That is, Plaintiff was replaced by a male in his mid to late twenties. See
O’Connor v. Consol. Coin Caterers Corp., 517 U.S. 308, 312-13, 116 S. Ct. 1307, 134 L. Ed. 2d
433 (1996); Jackson v. Cal-Western Packaging Corp., 602 F.3d 374, 378 (5th Cir. 2010).
Accordingly, Plaintiff has demonstrated a prima facie case under the ADEA for purposes of
Brewer has also met her prima facie burden for her gender discrimination claim. There is
no dispute that she falls into a protected class, was qualified for her position, and suffered an
adverse employment action. Moreover, Plaintiff has shown that she was replaced by a male.
Plaintiff has failed, however, to meet the fourth prong by establishing a sufficient comparator.
Indeed, Plaintiff has not demonstrated that she “received less favorable treatment due to her
membership in the protected class than did other similarly situated employees who were not
members of the protected class, under nearly identical circumstances.” Wesley, 660 F.3d at 213.
Plaintiff points to Lana Aguzzi as a sufficient comparator, however, Lana Aguzzi is a female,
and thus, is in the same protected category as Plaintiff. See Williams v. Trader Publ’g Co., 218
F.3d 481, 484 (5th Cir. 2001) (to prove disparate treatment, “plaintiff may use circumstantial
evidence that she has been treated differently than similarly situated non-members of the
Accordingly, while Plaintiff has surpassed her prima facie burden of
establishing gender discrimination on the basis of her replacement being male, she has failed to
establish Lana Aguzzi as a sufficient comparator.
Once the prima facie burden has been established, the burden thus shifts to the Defendant
to articulate a legitimate, nondiscriminatory reason for the employment action. Here, Alliance
maintains that it terminated Plaintiff because of her poor workplace behavior and continued
complaints. This articulated reason satisfies Defendant’s burden. Because Alliance has stated
legitimate, nondiscriminatory reasons for terminating Plaintiff’s employment, Plaintiff must
present evidence from which a reasonable jury could conclude that Defendant’s stated reasons
for her termination are pretexts for age discrimination.
Brewer contends that several comments made by Dr. Richards during the work day
constitute evidence that she was terminated based on her age or gender. Those comments, in
particular, are alleged as follows:
1. Dr. Richards’ commented that his least favorite patients to deal with were “older
Delta white women.”
2. Dr. Richards’ said on one occasion that the women on his staff were stupid.
3. Dr. Richards advised Brewer that he told a patient that Brewer was “no spring
4. Dr. Richards asked Plaintiff if she forgot to turn the machine on with respect to one
patient as the patient’s skin looked like she had not been getting treatment. He further
commented to the patient that Brewer was “getting on up there, you know.”
To the extent that Plaintiff attempts to bring a claim based on her being an ADEA-protected female, the Court
finds this claim fails. The Court notes that there is some disagreement among lower courts as to how the “but-for”
standard for discrimination under the ADEA applies when a plaintiff pleads and pursues alternative theories of
liability. Compare Culver v. Birmingham Bd. of Educ., 646 F. Supp. 2d 1270, 1271 (N.D. Ala. 2009) (the “only
logical inference to be drawn from Gross is that an employee cannot claim that age is a motive for the employer’s
adverse conduct and simultaneously claim that there was any other proscribed motive involved”) with Belcher v.
Serv. Corp. Int’l, No. 2:07-CV-285, 2009 U.S. Dist. LEXIS 102611, at *8 (E.D. Tenn. Nov. 4, 2009) (“While Gross
arguably makes it impossible for a plaintiff to ultimately recover on an age and a gender discrimination claim in the
same case, the undersigned does not read Gross as taking away a litigant’s right to plead alternate theories under the
Federal Rules.”). The Court notes that the Fifth Circuit has reviewed cases involving both age and another protected
characteristic, but has failed to extend coverage under the ADEA or Title VII to combined classifications, i.e. older
women. See Cherry v. CCA Props. Of Am., LLC, 438 F. App’x 348, 351 (5th Cir. 2011) (analyzing plaintiff’s
claims on the basis of her race, sex, and age independently, instead of as an “older African American female” as she
attempted). Accordingly, the Court does not recognize an “older female” as a distinct class for purposes of analysis.
5. Dr. Richards referred to a patient’s large breasts as “puppies.”
6. Dr. Richards advised Plaintiff that he told a patient Brewer was “older and carrying
some extra weight” so would need assistance from family members to move the
7. Dr. Richards referred to Plaintiff as “mature” and told Plaintiff to precede others into
rooms because she was “older and bigger” on some occasions.
8. Dr. Richards commented to a male recently hired that he was glad to have a man in
the office as it was hard to deal with all the hormonal women.
9. Plaintiff also asserts Dr. Richards’ comment asking about her car, “whose piece of
shit is that?,” was a sexist comment.
In regards to workplace remarks, the Fifth Circuit has explained that “comments are
evidence of discrimination only if they are 1) related to the protected class of persons of which
the plaintiff is a member; 2) proximate in time to the complained-of adverse employment
decision; 3) made by an individual with authority over the employment decision at issue; and 4)
related to the employment decision at issue. Comments that do not meet these criteria are
considered stray remarks . . . .” Jackson, 602 F.3d at 380. Thus, “‘comments that are vague and
remote in time are insufficient to establish discrimination.’” Spears v. Patterson UTI Drilling
Co., 337 F. App’x 416, 420 (5th Cir. 2009) (quoting Brown v. CSC Logic, Inc., 82 F.3d 651, 655
(5th Cir. 1996)).
Many of the comments do not satisfy the first prong for determining if comments are
evidence of discrimination. However, because all comments fail the second and third prongs, the
Court addresses those here. As to the proximity in time to her termination, the Court finds these
comments fail to constitute evidence of discrimination. Although Plaintiff did not specify a date
as to when many of these comments were made, most of the comments made by Dr. Richards are
too remote in time to conclusively demonstrate any animus. See Guthrie v. Tifco Indus., 941
F.2d 374, 379 (5th Cir. 1991), cert. denied, 503 U.S. 908, 112 S. Ct. 1267, 117 L. Ed. 2d 495
(1992) (statements made one year before adverse employment action held too vague and remote
in time to establish discrimination); Tillman v. S. Wood Preserving of Hattiesburg, Inc., 377 F.
App’x 346, 2010 U.S. App. LEXIS 9181, at *6 (5th Cir. 2010) (affirming district court’s
dismissal of all claims based on events occurring more than 180 days prior to filing of EEOC
charge). Brewer noted that the “spring chicken” comment was made in 2006 and maybe in 2007,
at least three years prior to her termination. She testified that the statements that she was “old”
or “older” or “mature” were made between 2006 and 2009, and the comment about her forgetting
to turn on the machine was made in either 2009 or 2010 according to Plaintiff. The “hormonal
women” statement was made in 2006. Plaintiff had not recollection of the timeline on the
remaining comments. As such, based on the fact that most of the comments were made at least
over one year before Plaintiff was terminated, they are considered “stray remarks” insufficient to
demonstrate discrimination based on Plaintiff’s sex or age. See Sreeram v. Louisiana State Univ.
Med. Ctr. - Shreveport, 188 F.3d 314, 320 (5th Cir. 1999); Brown, 82 F.3d at 656 (upholding
summary judgment in favor of defendant in ADEA case were strong evidentiary support for
defendant’s cost cutting rationale was not outweighed by age-related comments, such as “old
goat” and “you just can’t remember, you’re getting too old,” made close in time to termination of
plaintiff by individual who terminated plaintiff).
Plaintiff has additionally failed to show that the comments were made by an individual
with authority over the employment decision at issue. There was testimony that prior to Alliance
acquiring the independently-owned Bethesda Cancer Center Dr. Richards had some persuasion
as to employment decisions because of his close personal relationship with a manager of that
company. Indeed, the evidence is undisputed that Dr. Richards supported hiring Brewer for the
Clarksdale radiation therapist position when the prior twenty-something year old male radiation
therapist was terminated. However, the record is undisputed that after Alliance purchased
Bethesda, Cindy Wells was hired to make those personnel and operational decisions.
There is no evidence that Plaintiff’s termination was made by anyone other than Cindy
The testimony established that Dr. Richards was not involved in any employee
evaluations, discussions on employment issues, or consulted for hiring or disciplinary
proceedings. Accordingly, Dr. William Richards was not an individual with authority over the
employment decision at issue. In fact, Dr. Richards testified that he was made aware prior to
Plaintiff’s termination that she would no longer be working at the Clarksdale facility, but was not
provided the specific reasons for the termination.
Even if Dr. Richards was involved in the termination, the Court finds that pursuant to the
“same actor inference” recognized in the Fifth Circuit, Plaintiff has failed to raise a genuine
dispute of material fact that she was terminated because of her age. As the Fifth Circuit has
recognized, it “hardly makes sense for an employer to hire employees from a group against
which [the employer] bears  animus and then turn around and fire them once they are on the
job.” Hervey v. Miss. Dep’t of Educ., 404 F. App’x 865, 871 (5th Cir. 2010). The “same-actor
inference” is based on common sense and mitigates against a finding of pretext, requiring a
plaintiff like Brewer to come forward with more than a tenuous inference of pretext to meet her
burden of proof. Anderson v. Miss. Baptist Med. Ctr., 2011 U.S. Dist. LEXIS 92656, 2011 WL
3652210, *3 n.4 (S.D. Miss. Aug. 18, 2011).
As further evidence of pretext, Plaintiff asserts that she was terminated for behaviors that
everyone else in her office engaged. Plaintiff fails to differentiate herself from the others in the
office.2 She has presented no evidence that Cindy Wells actually had knowledge that the others
were behaving in the same way, and she admits that she never reported to Cindy Wells that the
others were engaged in any behavior improper in the workplace. See James v. Fiesta Food Mart,
At the time of her termination, Cindi Underwood, Dr. Richards’ assistant was 49 years old, and Jennifer Corso was
51 years old.
Inc., 393 F. App’x 220, 224-25 (5th Cir. 2010) (affirming district court’s grant of summary
judgment where the plaintiff failed, inter alia, to allege that any officials in management knew
about the alleged actions taken by co-workers); Manning v. Chevron Chem. Co., 332 F.3d 874,
883 (5th Cir. 2003) (holding that plaintiffs cannot establish causal link when decision makers
were unaware of activity).
Additionally, the fact that Cindy Wells, a female only two years younger than Plaintiff,
made the decision to terminate Brewer lends credence to Alliance’s position that her termination
was not based on any age or gender animus. Indeed, other district courts have held that “if the
decision maker and the plaintiff are the same [protected class], that fact tends to greatly
undermine the inference of  discrimination even if the decision maker’s stated justification is
disbelieved.” Smith v. Equitrac Corp., 88 F. Supp. 2d 727, 742 (S.D. Tex. 2000).
Plaintiff has failed to meet her burden of establishing a genuine dispute of material fact
that Defendant’s decision to terminate the Plaintiff was based on or motivated by either her
gender or age. The employment statutes at issue here “do not protect against unfair business
decisions[,] only against decisions motivated by unlawful animus.” Nieto v. L&H Packing Co.,
08 F.3d 621, 624 (5th Cir. 1997).
Plaintiff’s allegations are insufficient to create a genuine
issue of material fact: “subjective beliefs of discrimination cannot be the basis for judicial relief.”
Hervey, 404 F. App’x at 870.
Alliance has offered a legitimate, non-discriminatory reason for its employment decision
and Brewer has not rebutted that reason with evidence that Alliance’s reason was pretextual for
discrimination or that her gender was a motivating factor for that decision. See Hervey, 404 F.
App’x at 865 (citing Laxton v. Gap Inc., 333 F.3d 572 (5th Cir. 2003), and Rubinstein v.
Admin’rs of the Tulane Educ. Fund, 218 F.3d 392 (5th Cir. 2000) (summary judgment is proper
for employer whether the offered reason is accurate or not and even where there is some
evidence of pretext if there is overall lack of evidence of discriminatory intent)). Summary
judgment, therefore, is appropriate on the Plaintiff’s claim of gender and age discrimination.
SO ORDERED, this the 6th day of May, 2013.
/s/ Sharion Aycock_________
U.S. DISTRICT JUDGE
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