Harrison v. SSM Audrain Health Care, Inc

Filing 66

ORDER AND MEMORANDUM IT IS HEREBY ORDERED that Defendant's motion for summary judgment (ECF No. 56 ) is GRANTED. IT IS FURTHER ORDERED that the docket entries for Plaintiff's erroneously titled "Motions for Summary Judgment" (ECF Nos. 60 , 61 ) shall be amended to correctly title the documents as responses in opposition to Defendant's motion for summary judgment. IT IS FURTHER ORDERED that Defendants Motion to Strike (ECF No. 63 ) is DENIED as moot. A separate Judgment in accordance with this Memorandum and Order is entered this same date. Signed by District Judge E. Richard Webber on 1/4/19. (KXS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
NORTHERN DIVISION
MARY J. HARRISON,
Plaintiff,
vs.
SSM AUDRAIN HEALTHCARE, INC.,
d/b/a SSM HEALTH ST. MARY’S
HOSPITAL – AUDRAIN,
Defendant.

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Case No. 2:17 CV 0014 ERW

ORDER AND MEMORANDUM
Plaintiff Mary J. Harrison brings this action under the Age Discrimination in
Employment Act, 29 U.S.C. § 621 et seq., alleging that Defendant SSM Audrain Healthcare Inc.,
d/b/a SSM Health St. Mary’s Hospital – Audrain (“SSM”), has unlawfully discriminated against
her on account of her age. This matter is now before the Court on Defendant’s motion for
summary judgment. For the reasons set forth below, Defendant’s motion for summary judgment
will be granted.
Procedural Background
Plaintiff, a laboratory professional at Defendant SSM, was terminated on April 5, 2016.
After Plaintiff’s employment was terminated, she filed a charge of discrimination with the EEOC
on November 25, 2016. In her charge, Plaintiff alleged discrimination based upon her age.
Specifically, Plaintiff stated Defendant violated the Age Discrimination in Employment Act
(ADEA) by terminating Plaintiff so it could replace her with a younger employee. The EEOC
issued a notice of right to sue to Plaintiff and on March 10, 2017, she filed her original complaint
with this Court, asserting one count of age discrimination in violation of the ADEA. Plaintiff

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filed an amended complaint on July 12, 2017. 1 On March 28, 2018, this Court granted Plaintiff’s
counsel’s motion for leave to withdraw. Plaintiff subsequently failed to obtain counsel in
accordance with the deadlines imposed by the Court, and therefore, is now proceeding pro se.
On September 10, 2018, Defendant filed its Motion for Summary Judgment. Pursuant to
Local Rule 7 – 4.01(F), Plaintiff’s opposition to Defendant’s Motion for Summary Judgment was
due on October 1, 2018. On October 31, 2018, after Plaintiff failed to respond to Defendant’s
Motion for Summary Judgment, the Court entered an Order requiring Plaintiff to show cause
why Defendant’s Motion should not be granted no later than November 29, 2018.
On November 30, 2018, the Court received a document titled “Plaintiff’s Motion for
Summary Judgment” (ECF No. 60). On December 3, 2018, Plaintiff filed a second “Motion for
Summary Judgment” (ECF No. 61). Plaintiff’s second motion included additional facts and
corrected the illegible portions contained in the first submission. Although the motions are
styled as seeking summary judgment, they do not ask the Court to grant this type of relief.
Instead, they appear to constitute Plaintiff’s response in opposition to Defendant’s Motion for
Summary Judgment. Also now pending before the Court is Defendant’s motion to strike
Plaintiff’s response in opposition. Defendant argues the response was untimely filed and fails to
comply with Federal Rule of Civil Procedure 56 and Local Rule 7 – 4.01.
Summary Judgment Standard
Summary judgment must be granted when the pleadings and proffer of evidence
demonstrate that no genuine issue of material fact exists and that the moving party is entitled to
judgment as a matter of law. Fed. R. Civ. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322-

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Plaintiff added a retaliation claim not included in her original charge with the EEOC as Count II
in her amended complaint. The Court dismissed Count II as Plaintiff had failed to exhaust her
administrative remedies.
2

23 (1986); Torgerson v. City of Rochester, 643 F.3d 1031, 1042 (8th Cir. 2011) (en banc). The
Court must view the evidence in the light most favorable to the nonmoving party and accord her
the benefit of all reasonable inferences. Scott v. Harris, 550 U.S. 372, 379 (2007).
Initially, the moving party must demonstrate the absence of an issue for trial. Celotex,
477 U.S. at 323. Once a motion is properly made and supported, the nonmoving party may not
rest upon the allegations in her pleadings or in general denials of the movant’s assertions, but
must instead come forward with specific facts showing that there is a genuine issue for trial. Id.
at 324; Torgerson, 643 F.3d at 1042. Federal Rule of Civil Procedure 56(c)(1) requires a party
asserting a fact cannot be or is genuinely disputed to support such assertion by “(A) citing to
particular parts of materials in the record, including depositions, documents, electronically stored
information, affidavits or declarations, stipulations (including those made for purposes of the
motion only), admissions, interrogatory answers, or other materials or (B) 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.”
If the nonmoving party fails to properly address an assertion of fact made by the movant,
the Federal Rules of Civil Procedure permit the Court to consider the fact undisputed. Fed. R.
Civ. P. 56(e)(2). The Local Rules of this Court, however, require it. Under Local Rule 7 4.01(E), moving parties must include a statement of uncontroverted material facts with their
memorandum, with citations to the record if the fact(s) are established by the record. The Rule
further states that:
Every memorandum in opposition shall include a statement of material facts as to
which the party contends a genuine issue exists. Those matters in dispute shall be set
forth with specific references to portions of the record, where available, upon which
the opposing party relies. The opposing party also shall note for all disputed facts
the paragraph number from movant’s listing of facts. All matters set forth in the
statement of the movant shall be deemed admitted for purposes of summary judgment
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unless specifically controverted by the opposing party.
E.D. Mo. L.R. 7 - 4.01(E) (emphasis added). Under Local Rule 7 - 4.01(F), a party opposing
summary judgment is required to file “any appropriate documentary evidence” with their
opposition brief.
As an initial matter, the Court notes that not only did Plaintiff untimely submit her
response in opposition, 2 but the response does not comply with this Court’s Local Rule 7 4.01(E). Specifically, it does not contain a statement of material facts as to which Plaintiff
contends a genuine issue exists. Although it has a section titled “Facts,” several of the facts
contained therein are also included in Defendant’s Statement of Undisputed Material Facts, so
they are not disputed. Moreover, with regard to the facts contested by Plaintiff, she fails to
provide citation to the record or appropriate documentary evidence to support her assertions as
required under Local Rule 7 - 4.01(E). The Court acknowledges that Plaintiff is proceeding
without the assistance of professional counsel, however, “a pro se plaintiff must comply with
court rules and directives.” Soliman v. Johanns, 412 F.3d 920, 922 (8th Cir. 2005).
Thus, as Plaintiff did not controvert the facts set out in SSM’s Statement of Undisputed
Material Facts (ECF No. 58) in the manner required under Local Rule. 7 - 4.01(E), these facts
are deemed admitted. See Ridpath v. Pederson, 407 F.3d 934, 936 (8th Cir. 2005) (where
plaintiff did not controvert defendant's statement of material facts, it was deemed admitted under
E.D. Mo. L.R. 7 - 4.01(E)). The Court will summarize the undisputed factual assertions relevant
to Defendant’s motion for summary judgment in the next section.
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As noted above, Plaintiff filed two documents with the court styled as “Plaintiff’s Motion[s] for
Summary Judgment,” which instead appear to constitute Plaintiff’s responses in opposition to
Defendant’s motion for summary judgment. Because the second document corrects the
illegibility contained in the first averment and adds four additional paragraphs to the fact section,
the Court will consider only the second document (ECF No. 61) as Plaintiff’s response in
opposition.
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Evidence Before the Court on the Motion
The following facts are deemed admitted for purposes of this summary judgment motion:
Plaintiff is a former employee of Defendant SSM where she began working as a Lab Assistant in
June 1979. When Defendant SSM acquired the facility where Plaintiff worked in 2103, she was
employed as a Lab Supervisor. Her duties included testing patient specimens and supervising
the day-to-day operations of the lab. Plaintiff was also responsible for quality control in the
chemistry area of the lab. As part of her quality control responsibilities, Plaintiff was required to
complete a calibration/verification every six months to evaluate the accuracy of the testing done
in that section of the lab.
In 2014, SSM restructured the lab, creating a Lab Manager position and eliminating the
Lab Supervisor position held by Plaintiff. Pursuant to the restructuring, Plaintiff began reporting
to Fred Schumann, the new lab manager, and Plaintiff’s job title changed from Lab Supervisor to
Medical Technologist. Plaintiff’s pay and benefits did not change and her job responsibilities
remained the same, except that she no longer had supervisory authority. She continued to be
responsible for testing specimens and quality control.
Shortly after Schumann became Lab Manager, he discovered Plaintiff had not completed
a procedure manual or her quality control duties, including the six-month calibration/verification.
In December 2014, Schumann gave Plaintiff a two-week deadline to complete the
calibration/verification. Plaintiff did not meet this deadline. In February 2015, Schumann
assigned Plaintiff “desk time” to give her further opportunity to complete the
calibration/verification. Schumann also permitted Plaintiff to enlist assistance from other lab
employees. Nevertheless, she did not complete the testing and, pursuant to SSM’s Corrective
Action policy, Plaintiff was issued a “documented verbal warning” on February 12, 2015, for her

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failure to complete the calibration/verification and the procedure manual. Under SSM’s
Corrective Action policy, there are three progressive steps of discipline that managers may
utilize before terminating an employee: documented verbal warning, written warning, and final
warning.
Around the same time Plaintiff received her verbal warning, several employees expressed
concern to Schumann about how Plaintiff was treating them. Schumann observed Plaintiff
exhibiting unprofessional conduct toward her fellow employees and spoke to Plaintiff multiple
times about this issue. After a short period of improvement, Plaintiff again began to exhibit
unprofessional conduct toward her co-workers. As a result, Schumann issued Plaintiff a written
warning on July 20, 2015.
A few months later, in October 2015, Schumann again addressed Plaintiff’s failure to
complete the calibration/verification. He arranged for coverage in the lab and assigned Plaintiff
desk time to complete the task. When Plaintiff failed to complete the calibration/verification,
Schumann issued her a final warning on November 13, 2015. The following month, Plaintiff
applied for a new position opening at the lab. Pursuant to the Corrective Action policy,
employees on a written or final warning are not eligible to transfer to open positions, so Plaintiff
was ineligible as she was on a final warning. Amber Butcher, age 38, was selected for the
position.
In March 2016, Plaintiff met with Schumann and others to discuss completion of the
quality control testing and improvement of her attitude toward her co-workers. When Plaintiff
failed to complete the calibration/verification by the deadline set at this meeting, deadlines for
completion were reset at a second meeting. Although Plaintiff asserts she completed the
assigned task the next day, Defendant contends she was still working on it five days later.

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During this same month, Plaintiff was asked to correct a procedural error she made in a patient’s
medical record, but failed to correct it as directed. 3
On April 5, 2016, Plaintiff was terminated for her unprofessional attitude toward coworkers, her disregard of patient care, and her failure to follow her supervisor’s directives and
complete assigned tasks. When her employment was terminated, Plaintiff was 53 years old. At
the time of her termination, Schumann was age 50 and the other individuals employed by the lab
with Plaintiff’s job description were ages 56, 57, 63, 70, and 72. Penny Thiel, age 70, assumed
Plaintiff’s position after she was terminated.
In her response in opposition, Plaintiff asserts the disciplinary actions against her were
unwarranted and constituted pre-text to terminate her based on her age. Although Plaintiff
contacted Human Resources and the Vice President of Patient Care Services concerning issues
with her job, Plaintiff made no mention of alleged discriminatory treatment. Moreover, in her
deposition Plaintiff conceded that no one at SSM mentioned her age. In her response in
opposition to Defendant’s motion for summary judgment, however, she asserts that when her
desk was cleared out on February 9, 2015, Schumann told her, “If you want to live like an old
slob, then find another job.” (ECF No. 61 at 4).
Discussion
Under the ADEA, an employer is prohibited from discriminating against an employee
because of his or her age. 29 U.S.C. § 623(a). “A plaintiff may establish her claim of intentional
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Plaintiff disputes this contention but fails to offer the required support in the record refuting it
in accordance with Federal Rule of Civil Procedure 56 and Local Rule 7 – 4.01. Unsupported
and speculative allegations are insufficient to defeat summary judgment. See Moody v. St.
Charles Cnty., 23 F.3d 1410, 1412 (8th Cir. 1994) (to withstand summary judgment, plaintiff
must substantiate allegations with sufficient probative evidence that would permit a finding in
her favor based on more than mere speculation, conjecture, or fantasy); Bloom v. Metro Heart
Grp. of St. Louis, Inc., 440 F.3d 1025, 1028 (8th Cir. 2006) (speculation and conjecture are
insufficient to defeat summary judgment).
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age discrimination through either direct evidence or indirect evidence.” King v. United States,
553 F.3d 1156, 1160 (8th Cir. 2009). ‘“Direct evidence is evidence showing a specific link
between the alleged discriminatory animus and the challenged decision, sufficient to support a
finding by a reasonable fact finder that an illegitimate criterion actually motivated the adverse
employment action.”’ Id. (quoting Ramlet v. E.F. Johnson Co., 507 F.3d 1149, 1152 (8th Cir.
2007) (internal quotation and alteration omitted)). “‘[S]tray remarks in the workplace, statements
by nondecisionmakers, and statements by decisionmakers unrelated to the decisional process do
not constitute direct evidence.”’ Id. (quoting Schierhoff v. GlaxoSmithKline Consumer
Healthcare, L.P., 444 F.3d 961, 966 (8th Cir. 2006) (internal quotation marks omitted)).
Where the plaintiff presents direct evidence of discrimination, the court analyzes her
claim under the mixed-motives framework established in Price Waterhouse v. Hopkins, 490 U.S.
228, 278–79, 109 S.Ct. 1775, 104 L.Ed.2d 268 (1989) (O’Connor, J., concurring). Schierhoff,
444 F.3d at 965. “Alternatively, where the plaintiff presents indirect evidence of discrimination,
the court analyzes her claim under the burden-shifting framework set forth in McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973).” King, 553 F.3d
at 1160. “Direct evidence . . . may include evidence of actions or remarks of the employer that
reflect a discriminatory attitude, comments which demonstrate a discriminatory animus in the
decisional process, or comments uttered by individuals closely involved in employment
decisions.” Id. (citing King v. Hardesty, 517 F.3d 1049, 1058 (8th Cir. 2008) (internal quotations
omitted)).
In this case, Plaintiff has testified that no one at SSM mentioned her age. The only
potential direct evidence offered by Plaintiff of any age-related discriminatory animus is the
allegation set forth in her response in opposition that Schumann told her after clearing out her

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desk,“[i]f you want to live like an old slob, then find another job.” (ECF No. 61 at 4). With
regard to this statement, the Court first observes that Plaintiff is not in compliance with Fed. R.
Civ. P. 56(c)(1) or Local Rule 4.01(E) as she fails to support her assertion with citation to the
record or appropriate documentation. Moreover, Plaintiff fails to show this comment was linked
to or motivated her discharge in any way as it allegedly occurred 14 months before Plaintiff was
terminated. See Ramlet, 507 F.3d at 1153 (holding that comments made more than four months
prior to the adverse employment action were not connected to the decision making process and
therefore were not direct evidence). Because this comment did not relate to her termination, the
Court finds it is unrelated to the decisional process itself and does not constitute direct evidence.
See Schierhoff, 444 F.3d at 966.
Thus, the Court will turn to the indirect evidence offered by Plaintiff and apply the
McDonnell Douglas burden shifting test. Farnsworth v. Covidien, Inc., No. 4:08-cv-1689
(ERW), 2010 WL 147812, at *13 (E.D. Mo. Jan. 11, 2010). Under this framework, Plaintiff
must first establish a prima facie case of discrimination. The prima facie case creates a
rebuttable presumption of discrimination. Burdine v. Texas Dept. of Community Affairs, 450
U.S. 248, 254 (1981). To make such a case under the ADEA, the plaintiff must ordinarily show
that she: 1) was at least forty years old; 2) suffered an adverse employment action; 3) was
meeting her employer’s legitimate expectations at the time of the adverse employment action;
and 4) was replaced by a younger worker. See Gibson v. American Greetings Corp., 670 F.3d
844, 856 (8th Cir. 2012); Hitt v. Harsco Corp., 356 F.3d 920, 924 (8th Cir. 2004).

Once the

plaintiff creates this rebuttable presumption, the defendant must advance a legitimate, nondiscriminatory reason for the employment action. Gibson, 670 F.3d at 856. If the defendant

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carries this burden, then the burden shifts back to the plaintiff to show that the employer’s
proffered reason is merely a pretext for discrimination. Burdine, 450 U.S. at 253.
In Count I of her Complaint, Plaintiff alleges two acts of discrimination—that she was
denied a transfer (to the position of Laboratory Central Processing/MT Coordinator) because of
her age and that she was terminated because of her age. As an initial matter, Defendant contends
the Court should grant summary judgment on Plaintiff’s failure to transfer claim as Plaintiff
failed to exhaust it.
“Exhaustion of administrative remedies is a condition precedent to the filing of an action
under the ADEA.” Anderson v. Durham D&M, LLC, 606 F.3d 513, 523 (8th Cir. 2010). To
satisfy this exhaustion requirement, “[t]he information given in a [ ] ... charge [of discrimination]
must be sufficient to give the employer notice of the subject matter of the charge and identify
generally the basis for a claim, but it need not specifically articulate the precise claim or set forth
all the evidence an employee may choose to later present in court.” Wallace v. DTG Operations,
Inc., 442 F.3d 1112, 1123 (8th Cir. 2006). However, “there is a difference between liberally
reading a claim which lacks specificity, and inventing, ex nihilo, a claim which simply was not
made.” Cottrill v. MFA, Inc., 443 F.3d 629, 634 (8th Cir.2006) (internal quotation marks and
citation omitted). Allegations outside the scope of those included in the EEOC charge cannot be
later pursued in a party’s federal lawsuit. Robertson v. Budrovich Excavating, Inc., No. 4:05-cv616 (ERW), 2006 WL 2460794, at *5 (E.D. Mo. Aug. 23, 2006).
This Court finds Plaintiff failed to exhaust her administrative remedies with respect to her
allegation that she was denied a transfer to the Laboratory Central Processing/MT Coordinator
position. In the section of her EEOC charge of discrimination describing the particulars of her
charge, Plaintiff alleges only that she was fired so Defendant could replace her with a younger

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employee. Thus, because Plaintiff’s charge is confined to this allegation ‒ that she was
terminated based upon her age ‒ and did not allude to a failure to transfer, Plaintiff’s claim that
she was passed over for the position of Laboratory Central Proc/MT Coordinator in favor of a
younger person is foreclosed because she failed to exhaust her administrative remedies.
Accordingly, the Court turns to whether Plaintiff has stated a prima facie case for her sole
remaining allegation—that she was terminated based upon her age. Under the McDonnell
Douglas burden shifting test, Plaintiff must first establish the four elements of a prima facie case
of discrimination under the ADEA. The Court finds that Plaintiff cannot do so. While it is clear
Plaintiff was a member of a protected age group, and that she was discharged from her position
with Defendant, Plaintiff does not show she was performing her job at a level that met
Defendant’s legitimate expectations, or that she was replaced by a younger worker. Plaintiff
only offers conclusory allegations in her Complaint that she “performed her job duties
satisfactorily, performing at or above the level of Defendant’s legitimate and reasonable
expectations . . . .” (ECF No. 16 at 5). Additionally, Plaintiff cannot establish she was replaced
by a younger worker as Penny Thiel, age 70, assumed Plaintiff’s position after she was
terminated.
Even if Plaintiff could establish a prima facie case of discrimination, Defendant has
articulated a legitimate, nondiscriminatory reason for her termination, and Plaintiff has failed to
show this reason to be pretext for discrimination. Specifically, the undisputed evidence shows
that Plaintiff failed to complete her quality control duties and comply with numerous directives
from Schumann even though she was assigned desk time to relieve her of her other duties and
provided assistance to perform the testing. The evidence also shows Plaintiff also exhibited an
unprofessional attitude towards her co-workers and failed to correct a procedural error that could

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have impacted a patient’s care. Based upon her conduct and failure to perform her duties,
Plaintiff received a documented verbal warning, written warning, and final warning from
Defendant before she was terminated.
The Court finds Defendant has articulated a non-discriminatory reason for Plaintiff’s
termination. Plaintiff has not met her burden to show that Defendant’s proffered reason is
merely a pretext for discrimination. Plaintiff has failed to offer any evidence whatsoever that her
age was a factor in Defendant’s decision to terminate her employment. Under the McDonnell
Douglas standard, this Court concludes that Plaintiff has failed to show she was discriminated
against because of her age, in violation of the ADEA. The Court will grant summary on this
claim in favor of Defendant.
Accordingly,
IT IS HEREBY ORDERED that Defendant’s motion for summary judgment (ECF No.
56) is GRANTED.
IT IS FURTHER ORDERED that the docket entries for Plaintiff’s erroneously titled
“Motions for Summary Judgment” (ECF Nos. 60, 61) shall be amended to correctly title the
documents as responses in opposition to Defendant’s motion for summary judgment.
IT IS FURTHER ORDERED that Defendant’s Motion to Strike (ECF No. 63) is
DENIED as moot.
A separate Judgment in accordance with this Memorandum and Order is entered this
same date.
So ordered this 4th day of January, 2019.

E. RICHARD WEBBER
SENIOR UNITED STATES DISTRICT JUDGE
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