Suiter v. General Baptist Nursing Home
MEMORANDUM AND ORDER re: 18 MOTION for Summary Judgment filed by Defendant General Baptist Nursing Home; motion is DENIED. Signed by District Judge Stephen N. Limbaugh, Jr on 2/22/13. (CSG)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
GENERAL BAPTIST NURSING HOME,
A Missouri Non-Profit Corporation.
Case No. 1:11cv199SNLJ
MEMORANDUM AND ORDER
This is an employment discrimination case brought under Title I of the Age
Discrimination and Employment Act (“ADEA”), 29 U.S.C. § 623, et seq., and the Missouri
Human Rights Act (“MHRA”) Section 213.010 R.S.Mo. et seq. This matter is before the Court
on defendant’s Motion for Summary Judgment (#18), filed November 15, 2012. After an
extended briefing schedule, this matter is now ripe for disposition.
Plaintiff Barbara Suiter worked for defendant General Baptist Nursing Home’s dietary
department for 22 years. During that time, plaintiff received very good evaluations, and there
were never problems with the quality or quantity of her work, her dependability, or her honesty.
Plaintiff’s supervisor switched plaintiff from a cook to a cook’s helper in 2004; during that same
year, she was moved from a full-time schedule to part-time. Following plaintiff’s shift on
February 25, 2011, however, defendant decided not to put plaintiff on the March 1, 2011 work
schedule. Plaintiff was the only person who was not re-scheduled to work on the March 1
schedule. At the time, she was 68 years old.
Defendant explains that its resident census was down from January to February 2011,
from 80 patients to 68 patients. Defendant thus sought to “streamline” the kitchen and cut down
on kitchen employees by reducing part-time employee. Defendant states that plaintiff was the
only part-time employee among “cooks’ helpers and dietary aides,” thus she was left off the
schedule. Defendant states that it reduced the dietary department’s employee hours from 1,080
hours in February to 855 hours by June 2011. Payroll decreased from $8,894 to $6,529 over the
same period. Similarly, the defendant’s average cost per hour for February 2011 was $7.88;
average cost per hour by March 14 was $7.79; through the end of 2011, the defendant’s average
per hour cost fluctuated between $7.76 and $8.26.
Plaintiff’s hourly wage was $10.75 per hour on her last day of work. The worker who
took over her job duties was a 27-year-old woman who worked full time and was paid $7.25 per
hour. Plaintiff also points out that defendant hired seven new employees between March 1 and
the middle of June 2011. Each of the new employees was younger than plaintiff; the new
employees’ years of birth ranged from 1971 to 1992. Plaintiff states that defendant increased the
hours of a younger, male worker named Joe Brown, but defendant counters that Mr. Brown was a
full-time employee, not a part-time employee. Finally, two of plaintiff’s former coworkers
testified at their depositions that they believed defendant fired its older workers in favor of
younger workers, but defendant suggests those employees bore a grudge against their employer.
Plaintiff filed this action against the defendant, contending that the defendant stopped employing
her because it wanted to replace her with younger, cheaper labor.
“Summary judgment should seldom be used in employment discrimination cases, because
such cases are inherently fact-based and often depend on inferences rather than on direct
evidence.” Daugherty v. City of Maryland Heights, 231 S.W.3d 814, 818 (Mo. 2007); see also
Bassett v. City of Minneapolis, 211 F.3d 1097, 1099 (8th Cir. 2000); Hindman v. Transkrit
Corp., 145 F.3d 986, 990 (8th Cir. 1998).
“Summary judgment should not be granted unless
evidence could not support any reasonable inference for the non-movant.” 231 S.W.3d at 818.
Indeed, for the plaintiff to survive summary judgment, the record must show “two plausible, but
contradictory, accounts of the essential facts” and that “the ‘genuine issue’ in the case is real, not
merely argumentative, imaginary, or frivolous.” Id. at 820.
Pursuant to Rule 56(c), a district court may grant a motion for summary judgment if all of
the information before the court demonstrates that “there is no genuine issue as to material fact
and the moving party is entitled to judgment as a matter of law.” Poller v. Columbia
Broadcasting System, Inc., 368 U.S. 464, 467 (1962). The burden is on the moving party. Mt.
Pleasant, 838 F.2d at 273. After the moving party discharges this burden, the nonmoving party
must do more than show that there is some doubt as to the facts. Matsushita Elec. Industrial Co.
v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Instead, the nonmoving party bears the burden
of setting forth specific facts showing that there is sufficient evidence in its favor to allow a jury
to return a verdict for it. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986); Celotex
Corp. v. Catrett, 477 U.S. 317, 324 (1986).
In ruling on a motion for summary judgment, the court must review the facts in a light
most favorable to the party opposing the motion and give that party the benefit of any inferences
that logically can be drawn from those facts. Buller v. Buechler, 706 F.2d 844, 846 (8th Cir.
1983). The court is required to resolve all conflicts of evidence in favor of the nonmoving party.
Robert Johnson Grain Co. v. Chem. Interchange Co., 541 F.2d 207, 210 (8th Cir. 1976). With
these principles in mind, the Court turns to the discussion.
Under the ADEA, it is “unlawful for an employer...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. §
There has been some confusion surrounding ADEA cases due to the emergence of
different standards for ADEA cases versus Title VII cases. Cases alleging discrimination based
on race, sex, religion, color, or national origin are brought under Title VII of the Civil Rights Act
of 1964, 78 Stat. 253, as amended 42 U.S.C. § 2000e, et seq. “Unlike Title VII, the ADEA’s text
does not provide that a plaintiff may establish discrimination by showing that age was simply a
motivating factor.” Gross v. FBL Financial Servs., Inc., 557 U.S. 167, 174 (2009). The
Supreme Court thus held that, unlike Title VII, the ADEA does not authorize a “mixed motives
age discrimination claim.” Id. at 175. Thus, 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.” Id. at 177-78.
“A plaintiff may establish her claim of intentional age discrimination through either direct
evidence or indirect evidence.” King v. United States, 553 F.3d 1156, 1160 (8th Cir. 2008), cited
in Tusing v. Des Moines Independent Community School Dist., 639 F.3d 507, 515 (8th Cir.
2011). As for ADEA cases involving indirect evidence, the Supreme Court in Gross noted that it
had “not definitively decided whether the evidentiary framework of McDonnell Douglas Corp. v.
Green, 411 U.S. 702 (1973), utilized in Title VII cases is appropriate in the ADEA context.” 557
U.S. at 181 n.2. However, in the absence of clear Supreme Court precedent, this Court is bound
to follow Eighth Circuit precedent, and the Eighth Circuit has continued to applied the burden4
shifting McDonnell Douglas evidentiary framework in ADEA cases involving indirect evidence.
Tusing, 639 F.3d at 515.
Plaintiff contends that she has direct evidence of discrimination. This Court disagrees
that her evidence is “direct.” “Direct evidence may include employer remarks that reflect a
discriminatory attitude or that demonstrate a discriminatory animus in the decisional process.”
Kneibert v. Thomson Newspapers, Michigan Inc., 129 F.3d 444, 452 (8th Cir. 1997) (internal
citation and quotation omitted). Plaintiff’s evidence includes no employer statements or other
direct, employer-based evidence of a discriminatory attitude or animus. The Court will thus
proceed using the burden-shifting McDonnell Douglas evidentiary framework.
“Under the McDonnell Douglas analysis, the plaintiff has the initial burden to establish a
prima facie case of age discrimination.” 639 F.3d at 515 (citing 411 U.S. at 1162). If the
plaintiff meets that initial burden, the burden of production shifts to the employer, who must
“articulate a legitimate non-discriminatory reason for its employment action.” Id. Finally, “[t]he
burden shifts back to the plaintiff to demonstrate by a preponderance of the evidence that the
stated non-discriminatory rationale was a mere pretext for discrimination.” Id.
To establish a prima facie case of age discrimination, plaintiff must show that (1) she is a
member of a protected group; (2) she was performing her job at a level that met her employer’s
legitimate expectations; (4) she was discharged; and (4) her employer replaced her with a
younger person. Calder v. TCI Cablevision of Missouri, Inc., 298 F.3d 723, 729 (8th Cir. 2002).
That plaintiff has made a prima facie showing is not seriously disputed. Defendant weakly
argues that plaintiff was not truly discharged, but defendant admits that plaintiff was “left off the
schedule” and that afterwards, a younger employee performed plaintiff’s duties.
Turning then, to step two of the McDonnell Douglas framework, defendant insists that its
reasons for leaving plaintiff off the March 1 schedule were non-discriminatory, i.e., it replaced
part-time dietary workers (like plaintiff) with full-time workers to cut costs in the face of a
reduced patient census. Defendant cites as evidence its patient census, its reduced number of
employee hours worked, and its reduced labor costs for the dietary department for January
through June 2011.
Plaintiff, moving to step three of the McDonnell Douglas framework, counters that
defendant’s explanation is pure pretext. Plaintiff points out that defendant — without warning or
discussion — simply left her off the March 1 schedule and then proceeded to hire seven new
employees for the dietary department. Plaintiff further points out that all seven of those new
hires were younger (much younger) than plaintiff, and that defendant quickly terminated several
of those employees, but still defendant did not inquire with plaintiff as to whether she wanted to
Defendant explains that it intended for those new hires to be full-time employees. In its
brief, defendant contends that its “legitimate business goal” was to “reduce the number of
employees and hours worked in the dietary department by using existing, full time positions to
perform the same duties previously performed by part-time employees.” However, using fulltime employees to do the work of part-time employees makes logical sense only where the
defendant is already employing the full-time workers. Hiring new, new, additional full-time
workers to do the work of existing part-time workers defies logic. In addition, at least one of the
seven new hires, Chelsea Robards, was a part-time worker in April 2011. Plaintiff also set forth
evidence of former fellow employees who believed that the defendant was set on firing its older
workers and replacing them with younger workers.
Because this is a summary judgment motion, this Court must review the facts in a light
most favorable to plaintiff and give her the benefit of any inferences that logically can be drawn
from those facts. Buller, 706 F.2d at 846. In addition, the court is required to resolve all
conflicts of evidence in favor of plaintiff. Robert Johnson Grain Co., 541 F.2d at 210. Thus, the
plaintiff must be given the benefit of the “holes” in defendant’s story — it says that it was
attempting to lower costs, but it hired new workers rather than use its existing (already trained)
staff; it said it hired only full-time workers, but at least one new worker was part-time (like
plaintiff). The Court cannot grant summary judgment to defendant on plaintiff’s ADEA claim
under these circumstances. And, because defendant rests upon the same grounds in arguing for
summary judgment on plaintiff’s MHRA claim, the Court reaches the same result on plaintiff’s
Plaintiff has shown that disputed issues of fact exist as to whether defendant based its
employment decision regarding plaintiff on account of her age. Summary judgment will be
IT IS HEREBY ORDERED that defendant’s motion for summary judgment (#18) is
22nd day of February, 2013.
UNITED STATES DISTRICT JUDGE
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