Gleaves v. Creighton University

Filing 30

MEMORANDUM AND ORDER - Creighton's motion for summary judgment (filing 22 ) is granted. Gleaves' complaint (filing 1 ) is dismissed. A separate judgment will be entered. Ordered by Chief Judge John M. Gerrard. (LKO)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
LESLIE A. GLEAVES,
Plaintiff,

8:17-CV-308

vs.
MEMORANDUM AND ORDER
CREIGHTON UNIVERSITY, a
Nebraska Non Profit Corporation,
Defendant.
The plaintiff, Leslie Gleaves, is suing the defendant, Creighton
University, for allegedly violating the Age Discrimination in Employment Act
of 1967 ("ADEA"), as amended, 29 U.S.C. § 621 et seq. Creighton has moved for
summary judgment (filing 22) and for the reasons set forth below, that motion
will be granted.
BACKGROUND
The following facts are not meaningfully disputed. From 2010 until she
was terminated in 2015, Gleaves––a sixty-two-year-old nursing instructor––
was employed in Creighton's Pediatric Infectious Disease Department. Filing
23 at 2-3. The Pediatric Infectious Disease Department conducts clinical
research and performs medical studies on various pediatric patients. Filing 25
at 1. In that department, Gleaves worked as a Research Nurse Coordinator.
That position required Gleaves to generally explain the research study to the
patient participants, ensure that study protocols were being followed, and
obtain informed consent and proper Health Insurance Portability and
Accountability Act ("HIPAA") authorizations. Filing 25 at 3-5.

Like all studies performed at Creighton, those conducted in the Pediatric
Infectious Disease Department are overseen by Creighton's Institutional
Review Board. Filing 25 at 3. The Review Board is an independent, federally
mandated committee comprising University faculty and community members.
See filing 24-12 at 3. The purpose of the Board is to ensure that the each study
complies with federal law and adequately adheres to study protocol. See filing
24-12 at 3-4. To effectuate that purpose, the Board receives monitoring reports
prepared by an individual performing periodic on-site visits. See filing 23 at 7;
see also filing 24-12 at 3. The Board also conducts for-cause audits––generally
undertaken when a pattern of protocol violations are suspected by the Board.
See filing 24-12 at 4-5.
In the fall of 2015, the Board conducted a for-cause audit on the clinical
trial of a human papillomavirus (HPV) vaccine. Filing 24-18 at 2. Gleaves was
the lead coordinator for that study. Filing 23 at 9. During the audit, the Board
found several instances of protocol violations including, among other things,
improper consents, data entry, and HIPPA authorizations. Filing 24-18 at 2.
Based on these violations, the Board determined that Gleaves, "who is
responsible for the numerous errors reported[,] is no longer allowed to conduct
any human research activity at Creighton University." Filing 24-18 at 2. A few
days later, Gleaves was terminated. Filing 24-11.
But, according to Gleaves, she was not terminated because of her failure
to comply with the study protocols. Filing 25 at 1. Instead, Gleaves claims that
Creighton discriminated against her by treating her "more harshly than its
younger employees." See filing 1 at 7. More specifically, Gleaves contends that
when younger employees failed to follow study protocol, they were not
punished, but when Gleaves violated study protocol, she was terminated.
Filing 1 at 7.
2

Following her termination, Gleaves filed a charge of age discrimination
with the Equal Employment Opportunity Commission (“EEOC”), and then this
complaint.1 Filing 1 at 2. Creighton now moves for summary judgment. See
filing 22 at 1-2.
STANDARD OF REVIEW
Summary judgment is proper if the movant shows that there is no
genuine dispute as to any material fact and that the movant is entitled to
judgment as a matter of law. See Fed. R. Civ. P. 56(a). The movant bears the
initial responsibility of informing the Court of the basis for the motion, and
must identify those portions of the record which the movant believes
demonstrate the absence of a genuine issue of material fact. Torgerson v. City
of Rochester, 643 F.3d 1031, 1042 (8th Cir. 2011) (en banc). If the movant does
so, the nonmovant must respond by submitting evidentiary materials that set
out specific facts showing that there is a genuine issue for trial. Id.
On a motion for summary judgment, facts must be viewed in the light
most favorable to the nonmoving party only if there is a genuine dispute as to
those facts. Id. Credibility determinations, the weighing of the evidence, and
the drawing of legitimate inferences from the evidence are jury functions, not
those of a judge. Id. But the nonmovant must do more than simply show that
there is some metaphysical doubt as to the material facts. Id. In order to show
that disputed facts are material, the party opposing summary judgment must
cite to the relevant substantive law in identifying facts that might affect the
outcome of the suit. Quinn v. St. Louis County, 653 F.3d 745, 751 (8th Cir.
2011). The mere existence of a scintilla of evidence in support of the

1

Gleaves also filed a charge of age discrimination with the Nebraska Equal Opportunity

Commission, but did not pursue her state law claims in this litigation. Filing 1 at 2.

3

nonmovant's position will be insufficient; there must be evidence on which the
jury could conceivably find for the nonmovant. Barber v. C1 Truck Driver
Training, LLC, 656 F.3d 782, 791-92 (8th Cir. 2011). Where the record taken
as a whole could not lead a rational trier of fact to find for the nonmoving party,
there is no genuine issue for trial. Torgerson, 643 F.3d at 1042.
DISCUSSION
The ADEA prohibits discrimination against employees, age 40 and over,
because of their age. See, 29 U.S.C. §§ 623(a), 631(a); Tramp v. Associated
Underwriters, Inc., 768 F.3d 793, 800 (8th Cir. 2014). A plaintiff may establish
a claim of intentional age discrimination either by offering direct evidence of
discrimination or by satisfying the McDonnell Douglas burden-shifting
framework. Holmes v. Trinity Health, 729 F.3d 817, 821 (8th Cir. 2013); see
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802–803 (1973).
Creighton makes two arguments as to why, in its view, Gleaves'
complaint must be dismissed. First, Creighton contends that Gleaves has not
established a prima facie claim of age discrimination. Filing 23 at 17.
Alternatively, Creighton claims under the McDonnell Douglas framework that
Gleaves was terminated for a legitimate, non-discriminatory reason. Filing 23
at 19. The Court will begin its discussion with Creighton's former contention:
that Gleaves has not established a prima facie claim under the ADEA before,
if at all, considering Creighton's alternative argument.
(i) Prima Facie Case
Under McDonnell Douglas, a plaintiff must first establish a prima facie
case of discrimination. McDonnell Douglas, 411 U.S. at 802; Tramp, 768 F.3d
at 800. Once the plaintiff establishes a prima facie case, the burden of
4

production shifts to the employer to articulate a legitimate, nondiscriminatory
reason for its adverse employment action. Tramp, 768 F.3d at 800. A prima
facie age-discrimination claim under the ADEA requires that the plaintiff show
(1) she was at least 40 years old; (2) was qualified to perform her job; (3) was
terminated; and (4) was replaced by another person sufficiently younger to
permit the inference of age discrimination. Olsen v. Capital Region Med. Ctr.,
713 F.3d 1149, 1155 (8th Cir. 2013); see also Hilde v. City of Eveleth, 777 F.3d
998, 1004 (8th Cir. 2015). If the employer does so, then the plaintiff must
present evidence that considered in its entirety (1) creates a fact issue as to
whether the defendant's proffered reasons are pretextual, and (2) creates a
reasonable inference that age was a determinative factor in the adverse
employment decision. Id.; Tusing v. Des Moines Independent Community
School Dist., 639 F.3d 507, 516 (8th Cir. 2011).
Creighton does not dispute that Gleaves was over the age of 40 at the
time of the challenged decision or that she suffered an adverse employment
action when she was terminated. See Hilde v. City of Eveleth, 777 F.3d 998,
1004 (8th Cir. 2015). But Creighton does claim that following the Board's
decision, Gleaves was no longer qualified to perform her job. See filing 23 at
16-17. Creighton also disputes whether Gleaves has provided the Court with
any, much less sufficient evidence, demonstrating that she was replaced by an
employee significantly younger than herself. See filing 23 at 16-17.
With respect to its former contention, Creighton claims that following
the December 2, 2015 for-cause audit, Gleaves was no longer capable of
performing her job as Research Nurse Coordinator. Filing 24-18 at 2. This is
true, Creighton claims, because the Board made it clear that Gleaves was "no
longer allowed to conduct any human subject research activity at Creighton
University." Filing 24-18 at 2. And because Gleaves' position necessarily
5

required her to work with human research subjects and organize various
studies, Creighton determined that Gleaves no longer qualified for the
position––warranting her termination. See filing 24-18 at 2.
But Gleaves argues that when she was evaluated by her supervisor in
July of 2014 and 2015, her supervisor found that she either "Meets Objectives"
or "Exceeds Objectives." Filing 25-4 at 1; Filing 25-5 at 1. And because she had
previously received favorable reviews, Gleaves contends that not only was she
qualified to perform her job––but she did so in an "exemplary" fashion. Filing
25 at 19. The Court is not persuaded. Even assuming Gleaves was previously
meeting the expectations of her supervisor, as of December 2, 2015, that was
no longer true. See filing 24-4. By then, the Board had determined that Gleaves
had engaged in serious non-compliance and could no longer conduct any
human research activity at Creighton. See filing 24-4 at 2. And without the
ability to be involved in human research activity, Gleaves was no longer
qualified for her position as Research Nurse Coordinator––which included
duties to recruit, interview, and screen study participants, maintain
communication with participants, explain studies to participants mad obtain
informed consents obtain appropriate history and physical data on study
participants.2 See filing 24-3 at 1-2.
Gleaves has also failed to provide the Court with sufficient evidence
suggesting that she was replaced by substantially younger employee. To the
contrary, the evidence actually in the record suggests that Sandy Strizek, a
fifty-four-year-old nurse, was hired to fill Gleaves' position.3 Filing 24-2 at 8.

2

At no point does Gleaves contend that she did not make mistakes or that the Board's

determination was incorrect. Filing 25 at 9-12.
3

The Court notes Gleaves' contention that Amanda Zamora, not Strizek, replaced her as

Research Nurse Coordinator. See filing 25 at 3. But there is no evidence in the record of

6

The Court is not, however, convinced that an eight-year age disparity is
sufficient to infer discrimination. See Girten v. McRentals, Inc., 337 F.3d 979,
982 (8th Cir. 2003) (finding that a nine-year age difference between the
plaintiff and his replacement may not be sufficient to infer age discrimination);
compare Schiltz v. Burlington N. R.R., 115 F.3d 1407, 1412-13 (8th Cir. 1997)
(holding that a five-year age disparity is insufficient to infer discrimination),
with Keathley v. Ameritech Corp., 187 F.3d 915 (8th Cir. 1999) (holding that a
fourteen-year age difference is sufficient to infer age discrimination). And so,
the Court finds that Gleaves has failed to establish that an adverse
employment action occurred under circumstances which give rise to an
inference of unlawful discrimination. See McDonnell Douglas, 411 U.S. at 802;
Tramp, 768 F.3d at 800; Wilson v. Int'l Bus. Machs. Corp., 62 F.3d 237, 240-41
(8th Cir. 1995).
In sum, Gleaves has failed to demonstrate that she was qualified to
perform her job and that she was replaced by a significantly younger employee.
Accordingly, Creighton's motion for summary judgment will be granted on
those grounds.

Zamora's age, other than Gleaves' broad assertion that Zamora was "significantly younger"
and an unverified inference from Zamora's purported high school graduation date based on
a LinkedIn profile hyperlinked in the plaintiff's brief. See filing 25 at 15. See filing 25-11 at
1. A LinkedIn profile hyperlinked from a brief is not "evidence" for purposes of summary
judgment. See Banks v. Deere, 829 F.3d 661, 667-68 (8th Cir. 2016). So the Court cannot say
that Gleaves was, in fact, replaced by a significantly younger employee. See McDonnell
Douglas, 411 U.S. at 802; Tramp, 768 F.3d at 800. And even if there was evidence of Zamora's
age, for the other reasons articulated in this Memorandum and Order, Gleaves' claim still
fails.

7

(ii) Pretext Stage
Even if the Court were to assume––for sake of argument––that Gleaves
did establish a prima facie case of age discrimination, there is not sufficient
record evidence for a jury to infer that Creighton's stated reason for her
termination (i.e., the Board determination) is false. When a prima facie case is
established, the burden shifts to the defendant to provide legitimate
nondiscriminatory reasons for its employment decision.
Here, Creighton has presented the Court with evidence that Gleaves was
terminated for a legitimate, non-discriminatory reason: the "serious noncompliance of a research project and the Institutional Review Board decision."
Filing 24-11 at 1. See Lindeman v. Saint Luke's Hosp. of Kansas City, 899 F.3d
603, 606 (8th Cir. 2018) (determining that disclosing information in violation
of hospital policy is a legitimate, non-discriminatory reason for terminating an
employee); Twymon v. Wells Fargo & Co., 462 F.3d 925, 935 (8th Cir. 2006)
(finding that violating a company policy is a legitimate, non-discriminatory
rationale for terminating an employee). So, the Court's focus is limited to
whether Gleaves has shown that Creighton's stated reason for Gleaves'
termination is pretextual––that is, that the employer's stated reason was false
and that age discrimination was the real reason for her termination.
Lindeman, 899 F.3d at 606.
A plaintiff provides sufficient evidence of pretext by showing that the
employer's explanation is unworthy of credence because it has no basis in fact,
or by persuading the Court that a prohibited reason more likely motivated the
employer. Hilde, 777 F.3d at 1004. Either route amounts to a showing that the
prohibited reason, rather than the employer's stated reason, actually
motivated the adverse action. Guimaraes v. SuperValu, Inc., 674 F.3d 962, 975
(8th Cir. 2012). At all times, however, the plaintiff retains the burden of
8

persuasion to prove that age was the but-for cause of the adverse employment
action. Hilde, 777 F.3d at 1004.
Gleaves makes two arguments as to why, in her view, age discrimination
actually motivated Creighton's decision to terminate her employment. First,
Gleaves alleges that the treatment of three younger employees demonstrates
that the Board's decision was pretext for age discrimination. Filing 25 at 20.
Second, Gleaves contends that a conversation between her and her supervisor,
Sandra Byers, evinces Creighton's discriminatory animus. See filing 25 at 25
at 18-21; filing 25-3 at 100.
With respect to her former contention, Gleaves claims that Brooke
Fitzpatrick, Sharon Brown, and Samantha Marquez were treated more
leniently than she was after violating comparable study protocols.4 Filing 25-3
at 52. That evidence, Gleaves alleges, supports her contention that age
discrimination was actually the motivating factor for her termination. Pretext
may be established by showing Creighton treated similarly situated employees
outside Gleaves' protected class more favorably. Ridout v. JBS USA, LLC, 716
F.3d 1079, 1085 (8th Cir. 2013). To demonstrate that the employees are
similarly situated, Gleaves need only establish that she was treated differently
than other employees whose violations were of comparable seriousness. Id.
Where evidence demonstrates that a comparator engaged in acts of comparable
seriousness but was disciplined differently, a factfinder may decide whether
the differential treatment is attributable to discrimination or some other
cause. Ridout, 716 F.3d at 1085. But the "the individuals used for comparison
must have dealt with the same supervisor, have been subject to the same

4

In her briefing, Gleaves focuses primarily on the conduct of Fitzpatrick rather than Brown

and Marquez. See filing 25 at 19-21. But for sake of completeness, the Court will address
why, nonetheless, Brown and Marquez are not similarly situated employees.

9

standards, and engaged in the same conduct without any mitigating or
distinguishing circumstances." Wierman v. Casey's Gen. Stores, 638 F.3d 984,
995 (8th Cir. 2011) (internal quotation marks omitted).
Gleaves has not established that Fitzpatrick, Brown, or Marquez
engaged in acts of comparable seriousness but were disciplined differently. As
previously discussed, Gleaves was terminated after the Board determined she
had engaged in serious informed consent and HIPPA violations. See filing 2418 at 2. In particular, the Board found that Gleaves could no longer conduct
human subject research as a result of her
pattern of on-going and consistent lack of detail to protocol
consenting process, HIPPA authorization, data entry, and vaccine
administration as well as the misfiling of important subject
documents in studies not related to that specific participant. This
level of performance has persisted despite repeated re-training
and development efforts. . . .
Filing 24-18 at 2; see also filing 24-11 at 1.
There is nothing in the record to suggest that Fitzpatrick, Brown, or
Marquez engaged in similar "serious and continuing noncompliance." Filing
24-18 at 2. There is no evidence that any of those employees failed to obtain
proper consents, obtained inappropriate documentation of informed consent,
or inappropriately documented those consent. Cf. filing 24-13 at 1; see also
filing 24-2 at 3-5. Nor is there any evidence that Fitzpatrick, Brown, or
Marquez were, for any reason, prohibited from conducting any human research
activity by the Board. Cf. Filing 24-18 at 2; see also filing 24-11 at 1.

10

Instead, the only evidence before the Court concerning the alleged
misconduct of Fitzpatrick, Brown, or Marquez is Gleaves' own allegations that
Fitzpatrick failed to "timely report" errors to the IRB, see filing 24-18 at 2; see
also filing 24-11 at 1, Marquez filled out paperwork incorrectly, see filing 25-3
at 46, and Brown "falsified records" by having parents, rather than nurses,
write down the temperature of their children, see filing 25-3 at 33, 45. Even
assuming those allegations are true, they are not analogous to Gleaves' failure
to obtain adequate informed consent. Ridout, 716 F.3d at 1085. Indeed, the
purported misconduct of Brown and Marquez, however problematic, only
amounts to protocol "deviations" requiring re-education. Filing 25-3 at 33-34.
The misconduct of Gleaves, on the other hand, is a serious study protocol
violation warranting Board reporting and review.5 Filing 24-13 at 1; filing 2415 at 3. As such, Creighton's failure to terminate Marquez or Brown for
engaging in less serious, distinguishable protocol deviations cannot be used to
demonstrate pretext. Wierman, 638 F.3d at 995; see also filing 24-13 at 1-2;
filing 24-14 at 1-3.
The same is true for Fitzpatrick. Indeed, Gleaves' contends that
Fitzpatrick failed to "timely report to the IRB the violations reported by
Gleaves" and was never disciplined. Filing 25 at 20. According to Gleaves, that
conduct is just as serious as Gleaves' initial failure to obtain the consent. But
there is no evidence before the Court as to why that is true. See filing 25 at-3
at 25-26. And even if that evidence were in the record, Gleaves and Fitzpatrick
cannot, as a matter of law, be similarly situated employees. Gleaves was a
Research Nurse Coordinator while Fitzpatrick is a Senior IRB Administrator.

5

So the record is clear: Gleaves was subject to repeated re-training for other protocol

violations before the Board's determination and her ultimate termination. Filing 24-12 at 56.

11

See filing 24-12 at 1; filing 25-3 at 52; see also filing 24-12 at 1. That means at
the time Gleaves was terminated, Gleaves and Fitzpatrick had entirely
different job duties, with very different standards, and reported to different
supervisors. See filing 24-12 at 1; filing 25-3 at 52; see also filing 24-12 at 1.
And as noted above, individuals are not similarly situated unless they have
dealt with the same supervisor and have been subject to the same standards.
Wierman, 638 F.3d at 995. So, Fitzpatrick and Gleaves are not, and cannot, be
similarly situated and Creighton's failure to terminate or discipline Fitzpatrick
does not establish pretext.
That leaves Gleaves' remaining contention––the conversation between
Gleaves and Byers. In that interaction, Gleaves reported that she felt
overworked while her coworkers appeared to have a significant amount of free
time. See filing 25-3 at 100. Specifically, Gleaves stated that her colleagues
were "on the computers and their cell phones constantly and how they had
turned their computers so people couldn't see when they went in there." Filing
25-3 at 100. In response to that statement, Byers allegedly suggested that
Gleaves did not have more work than her colleagues, but rather the reason she
felt she had more work "was maybe [because the other employees] worked
faster at computers than [she] did because of their age." Filing 25-3 at 30. And
that remark, Gleaves contends, shows that the decision to terminate her
employment was actually motivated by discriminatory animus.
But not every alleged prejudiced remark made at work supports an
inference of illegal employment discrimination. St. Martin v. City of St. Paul,
680 F.3d 1027, 1035–36 (8th Cir. 2012). Courts carefully distinguish between
comments which demonstrate a discriminatory animus in the decisional
process or those uttered by individuals closely involved in employment
decisions,

from

stray

remarks

in
12

the

workplace,

statements

by

nondecisionmakers, or statements by decisionmakers unrelated to the
decisional process. King v. United States, 553 F.3d 1156, 1160 (8th Cir. 2009),
553 F.3d at 1161; Ramlet v. E.F. Johnson Co., 507 F.3d 1149, 1153 (8th Cir.
2007). And here, there is no evidence that Byer's remark influenced or had any
bearing on the Board's determination or Gleaves' ultimate termination. Cf.
filing 24-7 at 2-3. Discriminatory animus on the basis of Gleaves' age cannot
reasonably be inferred from such an innocuous comment.6 See, e.g., Buchholz
v. Rockwell Int'l Corp., 120 F.3d 146, 149-50 (8th Cir. 1997).
In sum, a reasonable jury could not infer that Creighton's reason for
terminating Gleaves was based on anything other than the Board's
determination that Gleaves' engaged in serious and continuous misconduct
prohibiting her from conducting any human research activity.7 McKay v.
United States Dep't of Transp., 340 F.3d 695, 700 (8th Cir. 2003); Ryan, 679

6

Gleaves also attempts to use this conversation as evidence that Gleaves was terminated due

to various mistakes she made as a result of being overworked. See filing 25 at 4-6. And,
Gleaves claims, those makes inevitably resulted from Byers' discriminatory treatment (i.e.,
believing Gleaves had more work because computer work took her longer). It is, however, an
unfortunate fact of life that some employees are more efficient than others when it comes to
computers and technology. And that might, in turn, lead to varying workloads. But that,
without more, does not evince any sort of direct discrimination.
7

The Court acknowledges Gleaves' contention that she could have been transferred to a

different position in a different department. Filing 254 at 12-13. But it is undisputed that
Creighton's transfer policy required all candidates, including internal transfer candidates
like Gleaves, to "apply and get the [open] job on their own merit." Filing 25-10. That means,
if Gleaves wanted to work at Creighton in a different position, she needed to formally apply
for that position. Filing 25-10 at 4; filing 25 at 14. Gleaves was told as much during her
termination meeting, but did not, and has not, applied to any other positions at Creighton.
Filing 25 at 14.

13

F.3d at 778; see also filing 24-18 at 1-2. Therefore, Creighton's motion for
summary judgment is granted and Gleaves' complaint is dismissed.
IT IS ORDERED:
1.

Creighton's motion for summary judgment (filing 22) is
granted.

2.

Gleaves' complaint (filing 1) is dismissed.

3.

A separate judgment will be entered.

Dated this 25th day of January, 2019.
BY THE COURT:
John M. Gerrard
Chief United States District Judge

14