Wade v. Sanford Medical Center
Filing
36
OPINION AND ORDER GRANTING 14 DEFENDANT'S Motion for Summary Judgment. Signed by U.S. District Judge Roberto A. Lange on 8/10/18. (DJP)
UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
CENTRAL DIVISION
DIANE WADE, AN INDIVIDUAL;
3: l 6-CV-03034-RAL
Plaintiff,
OPINION AND ORDER GRANTING
DEFENDANT'S MOTION FOR SUMMARY
JUDGMENT
vs.
SANFORD MEDICAL CENTER, A SOUTH
DAKOTA CORPORATION;
Defendant.
Plaintiff Diane Wade (Wade) filed a Complaint against Defendant Sanford Medical Center
(SMC) alleging violations of the Age Discrimination in Employment Act (ADEA), 29 U.S.C.
§ 621 et seq., (Count I), hostile work environment in violation of Title VII (Count II), intentional
infliction of emotional distress (Count III), negligent infliction of emotional distress (Count IV),
and punitive damages (Count V). Doc. 1. SMC moved for summary judgment, Doc. 14, which
Wade opposed, Doc. 24. For the reasons explained below, this Court grants SMC's motion for
summary judgment.
I.
1
Undisputed Facts 1
This Court takes the facts in the light most favorable to Wade as the non-moving party and draws
the facts primarily from the portion of SMC' s Statement of Undisputed Material Facts, Doc. 15,
that was not genuinely contested in Wade's Response to Statement of Genuine Disputes of
Material Facts, Doc. 26. Wade filed evidentiary objections to a number of exhibits submitted by
SMC, arguing each exhibit was inadmissible pursuant to Rules 602 (lack of foundation), 801 and
802 (hearsay), and 901 (lack of authentication) of the Federal Rules of Evidence. Doc. 27. Wade
did not provide further explanation as to the basis of these objections beyond citation of the
aforementioned rules. The exhibits in question include documents produced by SMC to Wade
A. Wade's History and Conduct Leading to Termination
Wade began her career with SMC on August 8, 1991, when SMC was known as Sioux
Valley Hospital. Doc. 15 at ,i 1; Doc. 26 at ,i 1. SMC terminated Wade's employment on
September 18, 2014, when Wade was 54 years old. Doc. 15 at ,i,i 2, 6; Doc. 26 at ,i,i 2, 6. At the
time of her termination, Wade was the lead pediatric cardiac ultrasound sonographer in the
pediatric unit, but was dually certified to work in both the pediatric and adult cardiac sonography
units. Doc. 15 at ,i,i 3, 5; Doc. 26 at ,i,i 3, 5. Wade also was a formal preceptor in the pediatric
unit whereby she received additional compensation when she was training new employees, a
position which required Wade to undergo additional training. Doc. 15 at ,i 4; Doc. 26 at ,i 4.
SMC has an Attendance and Punctuality policy which outlines the expectations for
employees of SMC with respect to their attendance and punctuality.
The policy states that
"[e]mployees have the personal responsibility to ensure that they are at their work station and are
ready to work at the starting time of their assigned shift. Reliable and consistent attendance is
required for job performance success." Doc. 15 at ,i 9; Doc. 16-10 at 1. The Attendance and
Punctuality policy further establishes that when "an employee does not meet the attendance
expectations outlined, they will be subject to the progressive discipline process" and directs
employees to reference the Discipline policy. Doc. 16-10 at 3. SMC' s progressive discipline
procedure begins with an informal process consisting of communication with the employee by the
manager, requiring no documentation or involvement of the Human Resources Department. Doc.
16-11 at 2. If attendance and punctuality problems persist, the process progresses from verbal
which largely are business records of SMC, such as the Attendance and Punctuality Policy and
discipline records, kept in the normal course of business. Because such exhibits are admissible
business records, this Court overrules Wade's objections and considers as undisputed facts matters
in SMC's Statement of Undisputed Material Facts which Wade did not admit solely because of
evidentiary objections to SMC's business records.
2
reminders to written warnings, and then to Decision Making Leave (DML) prior to involuntary
termination. 2 Doc. 16-11 at 3.
During her annual evaluation in May of 2008, Wade's supervisor-at that time Tom
Denevan-spoke with Wade about her tardiness and the expectation that SMC employees be
clocked in and prepared to work at the start of their scheduled shift.3 Doc. 15 at ,r 12. Meanwhile,
Wade's 2008 annual evaluation recorded that she "Meets Expectations" or "Exceeds Expectations"
in every category for which she was evaluated, and did not mention any attendance issues. Doc.
26 at ,r 12; Doc. 28-2.
Wade received a written warning on December 9, 2008, which raised punctuality and
productivity concerns. Doc. 15 at ,r 13; Doc. 26 at ,r 13; Doc. 16-8 at 28-29. The warning stated
that Wade had a tardiness percentage of 80 percent for the 46 in-house shifts for which she was
scheduled from September 20 to December 9, 2008. Doc. 15 at
,r
14; Doc. 26 at
,r
14. The
documents warned Wade that failure to comply with SMC's Attendance and Punctuality policy
would result in further disciplinary action. Doc. 15 at ,r 15; Doc. 26 at ,r 15. However, in Wade's
2009 annual evaluation her supervisor noted that "Diane['s] attendance is much improved meeting
supervisor[']s expectations since our 12/09/08 discussion." Doc. 26 at ,r 14; Doc. 28-3; Doc. 305 at 6. In that evaluation, Wade received a rating of "Exceeds Expectations" or "Outstanding
Performance" in every category for which she was rated. Doc. 30-5 at 1-5.
2
The Discipline policy also contains alternative steps in the formal process which include final
written reminders (which may be issued for a policy violation in lieu of a DML, based upon the
offense) and suspensions when there is a need to investigate an incident involving the employee.
Doc. 16-11 at 3.
3
Wade disputes this fact on the basis that her 2008 annual evaluation makes no mention of
tardiness. Doc. 26 at ,r 12. However, this verbal conversation is documented in the written
warnings and DML Wade received, as well as her separation paperwork. See Doc. 16-8 at 22-23,
25-29; Doc. 16-13 at 2-3. Each of these documents was signed by Wade.
3
Wade received a second written warning concerning punctuality and productivity on
October 28, 2009. 4 Doc. 15 at ,r 16; Doc. 16-8 at 25-27. The warning stated that Wade clocked
in late for 9 of 15 in-house shifts for which she was scheduled from September 2 to October 12,
2009, for a tardiness percentage of 60 percent. Doc. 15 at
,r 17; Doc.
16-8 at 25. The written
warning informed Wade that "future concerns will result in further disciplinary action up to and
including termination." Doc. 16-8 at 26. Wade signed the written warning on November 16, 2009,
and under "Employee Response" she handwrote an action plan to address her tardiness, among
other issues. Doc. 16-8 at 27. Wade's 2010 annual evaluation documented that she received the
written warning in October of 2009, but it made no further mention of attendance or punctuality
issues and Wade received ratings of "Meets Expectations" or above in every category for which
she was evaluated. Doc. 28-4 at 1-11.
Sandra Josko (Josko) became the Cardiovascular Services (CVS) diagnostic manager in
the summer of 2011. Doc. 15 at
,r 20; Doc. 26 at ,r 20.
As CVS manager, Josko supervised the
adult and pediatric cardiac sonography units, making her Wade's direct supervisor as of the
summer of 2011 until Wade's termination in 2014. Doc. 15 at ,r,r 7, 20, 22; Doc. 26 at~~ 7, 20,
22. Josko managed the staff and created the schedules for both the adult and pediatric cardiac
sonography units. Doc. 15 at ,r 22; Doc. 26 at ,r 22.
Josko spoke with Wade regarding her tardiness percentage for the pay period from
November 27 through December 10, 2011. Doc. 15 at ,r 23; Doc. 26 at ,r 23. Josko's later email
to Wade stated that Wade was late for every shift during that pay period, and for shifts during the
4
Wade disputes this fact on the basis that it was not documented in her 2009 or 2010 annual
evaluation, and objects that it is irrelevant to her termination in 2014. Doc. 26 at ,r 16. However,
SMC submitted the written warning which bears Wade's signature, and her 2010 evaluation does
indeed note that she had a "written counseling session" on October 28, 2009, regarding attendance
and productivity. Doc. 16-8 at 25-27; Doc. 28-4 at 11.
4
prior pay period as well. Doc. 16-8 at 40. However, the tardiness percentage for this time period
was recorded at 75 percent in later documentation. See Doc. 16-13 at 2. Wade's 201 l annual
evaluation, dated May 16, 2011, did not refer to any attendance issues, noted that Wade is an
extremely skilled sonographer, and gave Wade a "Meets Expectations" or "Exceeds Expectations"
under every evaluative category. Doc. 28-5 at 8. In her 2012 annual evaluation, dated August 28,
2012, Wade again met or exceeded expectations in all evaluative categories, though her manager
documented that "[i]t was requested that [Wade] work on her punctuality and to be here when her
shift started, [and Wade] has made an effort to be more dependable." Doc. 28-6 at 8. That
evaluation also noted Wade "is committed to Sanford Health and the standards of care [SMC]
provide patients." Doc. 28-6 at 8.
Wade had another conversation with Josko and other supervisors in November of 2012
regarding her tardiness percentages during several previous pay periods. Doc. 15 at 124; Doc. 26
at 124. According to SMC business records, Wade had a tardiness percentage of 50 percent from
November 19 through November 30; 0 percent for the 2 shifts worked between November 5 and
November 16; 80 percent from October 22 through November 1; 50 percent from October 8
through October 19; 40 percent from September 24 through October 5; and O percent for the two
shifts worked between September 17 and September 21. 5 Doc. 15 at 1125-28; Doc. 16-8 at 22;
Doc. 16-13 at 2.
On December 5, 2012, Wade was placed on a DML. Doc. 16-8 at 22-23. The DML
paperwork stated that "[Wade] has not followed Sanford's guidelines for Punctuality. [Wade] has
5
Wade disputes the tardiness percentages based on a lack of recollection of those percentages.
Doc. 26 at 1125-28. However, these percentages are documented in Wade's DML, Doc. 16-8 at
22-23, and her termination paperwork, Doc. 16-13. Wade signed both documents without noting
any dispute with those percentages.
5
had many verbal conversations as well as Written Warnings regarding her tardiness. Her tardiness
continues to fall outside of Sanford's expectations." Doc. 16-8 at 22. The DML further directed
that Wade was to present an action plan when she returned on December 6, 2012, detailing how
she would commit to meeting performance expectations or resign her position. Doc. 16-8 at 22.
The final paragraph of the DML stated that "(t]his is the final step in the discipline process. If you
commit to staying in your position, you need to commit to fully acceptable attendance and
punctuality. Failure to meet the Sanford expectation of performance will result in termination of
your employment." Doc. 16-8 at 23. The DML documentation was signed by Wade, Josko, and
a representative from Human Resources. Doc. 16-8 at 23. Wade also hand wrote an action plan,
dated December 5, 2012, indicating she would leave for work 15 minutes earlier and would contact
Josko in the event she was delayed on her way to work. Doc. 16-8 at 24.
Wade left her shift on December 31, 2012, to attend a personal appointment and
rescheduled a patient appointment to do so. Doc. 15 at,, 37-38; Doc. 26 at,, 37-38. Josko
emailed Wade to explain that, because Wade left her shift without prior management approval, her
absence would be documented as an unapproved absence, and attached portions of the Attendance
and Punctuality policy which establish that employees "must receive prior authorization from their
supervisor before leaving Sanford premises during their scheduled work hours." Doc. 16-8 at 50;
see also Doc. 16-10 at 2. Wade's 2013 annual evaluation, dated June 4, 2013, documented that
she was placed on a DML in December of 2012 for excessive tardiness, though it did not mention
the December 31, 2012 appointment incident. Doc. 28-7. While the evaluation noted that Wade
"often needs to be remined that she holds a position at Sanford as a dual registered sonographer,
which comes with more responsibility than a single registered sonographer[,]" Wade received
scores of "Meets Expectations," "Exceeds Expectations," or "Outstanding Performance" in each
6
evaluative category. Doc. 28-7 at 2-7. Wade's 2014 annual evaluation also noted that she meets
or exceeds expectations in every evaluative category but documented that Wade "continues to
struggle with time management." Doc. 28-8 at 8.
On July 30, 2014, Wade submitted a Paid Time Off (PTO) request for September 10
through September 15, 2014. Doc. 15 at 143; Doc. 26 at ,i 43. Pediatric cardiac sonographers at
SMC are able to submit PTO requests up to six months in advance. Doc. 15 at ,i 42; Doc. 26 at
142. Wade requested the PTO to go on a trip with her husband, and her husband had purchased
the airline tickets for the trip prior to Josko's August 19, 2014 response to Wade's PTO request.
Doc. 15 at 11 44-45; Doc. 26 at 1144-45. On that day, Josko emailed Wade to inform her that
she could not grant Wade's request for PTO on September 12, stating that another pediatric
sonographer, Sarah Bohnenberger (Bohnenberger), had requested PTO for that same date prior to
Wade's request. Doc. 15 at ,i 46; Doc. 26 at ,i 46. There were two pediatric cardiologists scheduled
to see patients at Sanford Children's Hospital on September 12, 2014, and SMC's policy was to
have two pediatric cardiac sonographers available to scan patients on such days. Doc. 15 at 114748; Doc. 26 at 1147-48. SMC required a total of four pediatric cardiac sonographers on September
12, 2014, because in addition to the two required at the Children's Hospital, SMC policy required
one sonographer to be on call to cover the hospital and neonatal intensive care unit and an
additional sonographer was needed to cover an athletic screening scheduled on that same date.
Doc. 15 at
11 49-50;
Doc. 26 at
11 49-50.
At the time Josko denied Wade's request for PTO,
SMC employed a total of five pediatric cardiac sonographers. Doc. 15 at 150; Doc. 26 at,r 50.
Wade responded to Josko's email on August 20, 2014, stating "I will start working on it[,]
I already have plane tickets." Doc. 15 at 151; Doc. 26 at 151. Josko responded that "[t]here are
no options for staff. I have a screening scheduled and there is double clinic in the am." Doc. 15
7
at ,i 52; Doc. 26 at ,i 52. Wade contacted Bohnenberger and requested that she cover Wade's shift
on September 12, and Bohnenberger indicated she would be willing to do so if she would be
allowed to leave during her shift to attend an appointment scheduled for the morning of September
12. Doc. 15 at ,i,i 53-54; Doc. 26 at ,i 53-54. After Josko informed Bohnenberger that it was not
guaranteed that she would be permitted to leave during her shift, Bohnenberger informed Wade
that she could not cover the September 12 shift. Doc. 16-8 at 44.
On August 21, 2014, Wade emailed the other pediatric cardiac sonographers regarding the
schedule for September 12. Doc. 16-8 at 49. Wade indicated that she would ask the physicians if
Rochelle Boone (Boone), who was still training as a pediatric cardiac sonographer, could do the
athletic screening on her own and whether the remaining two sonographers, Ashley Hargreaves
(Hargreaves) and Jackie Salzwedel (Salzwedel) would be alright if the two of them were left to
cover the double clinic and "inhouse" if the physicians approved. Doc. 15 at ,i 74; Doc. 16-8 at
49. Pediatric cardiac sonographers often emailed their peers with requests to change the schedule
to cover call. Doc. 15 at ,i 57; Doc. 26 at ,i 57.
Bridget O'Brien Johnson, at the time Bridget Rients, (Johnson), was Josko's direct
supervisor in August of 2014. Doc. 15 at ,i 8; Doc. 26 at ,i 8. When Johnson learned of Wade's
email, Johnson emailed Human Resources to express concerns that Wade had not included Josko
or Johnson on the email to inform them of any such plan; that Boone was still in orientation and
the physicians had stated that she could not go on screenings; and that having only two
sonographers to cover the Children's Hospital as well as the hospital and neonatal intensive care
unit would limit staffing and cause delays, compromising patient care. Doc. 16-8 at 48.
Wade emailed Johnson on September 5, 2014, to inform her that she would not be at work
during her shift scheduled for September 12. Doc. 16-8 at 44. Johnson responded on September
8
8, requesting that Wade and Johnson "touch base" with Josko sometime that day. Doc. 16-8 at 44.
Wade emailed Johnson back that afternoon, stating she had been busy in clinic that day and had
not yet been able to reach Josko, but would attempt to call her again that day. Doc. 16-8 at 43.
Johnson emailed Josko on September 9 regarding the plan for the September 12 shift and inquired
whether Wade and Josko had communicated the previous day. Doc. 16-8 at 43. Josko responded
to Johnson's email, stating:
I talked to [Wade] late yesterday afternoon. I told her that you and
I had discussed the issue and that if she is not here on Friday that it
would be considered an unexcused PTOU 6 day. She asked if she
needed [to] call in and tell us on Friday morning that she would not
be in and I said no[, y]ou already notified me and Bridget said you
sent her an email. I reminded her that she was not approved for the
vacation and that she would be considered a no show for her shift. I
also reminded her the plane tickets cannot be purchased prior to
receiving vacation approval, I do not recall that she had a response
to this.
Doc. 16-8 at 43. Wade did not work her scheduled shift on September 12, 2014. Doc. 15 at~ 70;
Doc. 16-13.
Josko sent an email to the pediatric cardiac sonographers on September 3, 2014, which
stated that "[ d]uring this time-all staff on back up call with [Boone] will need to come in to the
hospital when she does. You will need to follow call expectations of 30 minutes bedside after
receiving a page." Doc. 16-8 at 51. On September 16, 2014, Wade was on back up call with
Boone, who was in training and not off orientation. Doc. 15 at~ 74; Doc. 26 at ,i 74. When Boone
contacted Wade on September 16 informing Wade that they had been called to the emergency
room, Wade asked Boone if Boone wanted her to come in. Doc. 15 at ,i 75; Doc. 26 at ,i 75. Boone
did not ask Wade to come in, thus Wade did not accompany Boone to the hospital. Doc. 15 at
6
PTOU stands for unplanned time off, which is any absence that was not approved in advance.
See Doc. 16-10 at 2.
9
177; Doc. 26 at 1 77. When Josko questioned Wade on September 17, 2014, as to why she did
not accompany Boone, Wade stated that she had not gotten caught up on her emails since being
on vacation and was unaware of Josko's directive to accompany Boone. Doc. 15 at 178; Doc. 26
at 178.
Josko prepared and submitted to Human Resources documentation regarding Wade's
missed shift on September 12 and decision not to accompany Boone on September 16. Doc. 15 at
187; Doc. 26 at
1 87.
Wade's situation was discussed by Johnson; Patsy Kramer (Kramer), a
Human Resources Advisor at SMC; Karla Haugan (Haugan), the vice president of Human
Resources at SMC; Kathryn Schuler (Schuler), a vice president at SMC; and Robin Burnley
(Burnley), the Director of Human Resources at SMC. Doc. 16-8 at 53-57. Kramer forwarded the
documentation prepared by Josko to the group via email on September 17, 2014, asking whether
each individual supported termination or a second DML for Wade. Doc. 16-8 at 53. Kramer's
email mentions that "[w]e have had a couple other situations within Sanford in which we gave the
employees an additional DML if time had passed since the previous. In the two situations that I
reviewed there was about 2 years between the two DMLs for the employees." 7 Doc. 16-8 at 53.
Schuler responded that:
Based on past history and D ML I support termination. [Wade] is in
a leadership role, and is supposed to set the example for the team. I
do not agree with setting a precedence [sic] of a second DML
process at SMC. To my knowledge we have not done that before.
It seems she has adequate time to reflect personally and change
habits.
Doc. 16-8 at 53. Haugan declined to support either option, stating:
I could go either way on this individual-very rarely do we have an
employee whose primary issue for an on-going period is tardiness.
7
Wade's previous DML was dated December 5, 2012, Doc. 16-8 at 22-23, about 21 months
previously.
10
I know that these are not easy positions to recruit for and she has
been here a long time. How [are] her skills as a cardiac
sonographer? I will defer this one to Andy, [Johnson] and [Josko].
Doc. 16-8 at 55. Johnson supported tem1ination, stating:
[Wade's] skills as a sonographer are solid. However, he[r] decision
making is of concern to me and this is affecting the team and patient
care. This was also evident in the decision she made last night after
we visited with her yesterday regarding her unplanned PTO.
Doc. 16-8 at 56. Finally, Burnley also supported termination, stating:
I support termination. We are starting to see where DML's have
been presented a few years ago and need to make the decision if we
do another step or go to termination. I think we need to take into
consideration if the current issue is a continued pattern of behavior
or if it is something new. Given that the DML was related to
attendance issues as well as this most recent issue, I support
termination.
Doc. 16-8 at 56.
Kramer notified Josko that the decision had been made to terminate Wade. Doc. 15 at 189;
Doc. 26 at 189. On September 18, 2014, Wade was informed that she was being terminated. Doc.
15 at
1 84;
Doc. 26 at
1 84.
Kramer, Josko, and Johnson were present at the time Wade was
informed of her termination, and Kramer and Johnson both signed Wade's termination paperwork.
Doc. 15 at
1 84;
Doc. 26 at
1 84.
Wade also signed the termination paperwork and provided a
handwritten response; Wade's response did not assert that her termination was connected to age
discrimination, though she did write that "rules seem to be different for everyone in [Josko's]
department." Doc. 16-13 at 3. After Wade was terminated, she was asked to "go to her car." Doc.
15 at 184; Doc. 26 at 184. During his deposition, Wade's husband, Doug Wade (Doug), testified
that after her termination Wade did not leave the house for a week, was disorganized, and cried
more often than usual. Doc. 15 at 1 209; Doc. 26 at 1 209.
11
A week after her termination, Wade attended an annual examination with her primary care
physician, Dr. Sherri Bostwick (Bostwick). Doc. 15 at ,i,i 182-83; Doc. 26 at ,i,i 182-83. During
that examination, Wade reported that she "has generally been very healthy." Doc. 15 at ,r 184;
Doc. 26 at ,i 184. Wade also informed Bostwick of a number of things regarding her health: that
she had no chronic medical conditions and took only over-the-counter medications and vitamins;
that she had no unexpected changes in weight or fatigue, no abdominal pain or changes in bowel
habits, no significant change in appetite, and no nausea, vomiting, diarrhea or constipation; and
finally that she did not have chronic headaches nor did she have depression or anxiety. Doc. 15 at
,i,i 185-87; Doc. 26 at ,i,i 185-87. Bostwick documented that Wade's blood pressure was normal
and that Wade appeared "alert, well appearing, and in no distress." Doc. 15 at ,i,i 188-89; Doc. 26
at ,i,i 188-89. Wade also reported that she was not having pain anywhere. Doc. 15 at ,i 191; Doc.
26 at ,i 191. At the beginning of the September 25, 2014 examination, one of Bostwick' s nurses
completed with Wade a Behavioral Health Screening-6 (BHS-6). Doc. 15 at ,i 192; Doc. 26 at
,i 192. During the BHS-6, Wade was asked whether over the previous two weeks she had: felt
little interest or pleasure in doing things; felt down, depressed, or hopeless; felt nervous anxious,
or on edge; or not been able to stop or control worrying. Doc.15 at ,i,i 193-96; Doc. 26 at
,ii 193-
96. According to the BHS-6 report, Wade responded "not at all" to each of these questions.
Doc.15 at ,i,i 193-96; Doc. 26 at ,i,i 193-96.
During Wade's annual examination with Bostwick in November of 2015, Wade reported
the same lack of any health problems and responded to the BHS-6 in the same manner as during
her September 25, 2014 examination. Doc. 15 at ,i,i 197-208. Since her termination, Wade has
not sought professional treatment or assistance for anxiety, depression, difficulty sleeping, or
headaches, nor has she been prescribed medications for any such condition. Doc. 15 at ,,r 180-
12
81; Doc. 26 at 180-81. During her deposition, Wade testified that she was not seeking treatment
for these conditions because "I didn't want to be tagged with anything. I'm-like I said, I'm a
private person. It was a new doctor. These are not things I wanted to talk about." Doc. 16-1 at
14.
Wade filed a complaint with the Equal Employment Opportunity Commission (EEOC) in
March of 2015, alleging that she was unlawfully terminated due to her age. Doc. 15 at 193; Doc.
26 at 1 93. Wade claims that Jasko was the only person to discriminate against her, and has not
claimed that any other Sanford employee harassed or discriminated against her. Doc. 15 at 1il 13637; Doc. 26 at
11
136-37. The EEOC mailed a dismissal and notice of suit rights to Wade and
SMC on May 18, 2016, stating that it was "unable to conclude that the information obtained
establishes violations of the statutes." Doc. 15 at 1 178; Doc. 26 at 1 178.
SMC adheres to a written Anti-Discrimination and Harassment policy, and Wade was
aware of this policy. Doc. 15 at 11120-21; Doc. 16-12; Doc. 26 at 1121. Wade completed online
training titled "Understanding Workplace Diversity, Harassment and Discrimination" on an annual
basis which reviewed this policy on harassment and discrimination, including how to report
discrimination or harassment. Doc. 15 at11125-27; Doc. 26 at11125-27. Wade did not complain
or report to any person at SMC that she felt Jasko was discriminating against her on the basis of
her age. Doc. 15 at 1124; Doc. 26 at 1124.
B. Other Events and Information Relevant to this Motion
SMC has a policy of having one pediatric cardiac sonographer on call every evening,
weekend, and holiday. Doc. 15 at 1 170; Doc. 26 at 1 170. As a pediatric cardiac sonographer,
Wade's duties included covering call. Doc. 15 at 1 I 70; Doc. 26 at 1 170. The call schedule was
typically set at the beginning of the year, and after Jasko had set the call schedule for calendar year
13
2014, Wade's daughter and her fiance (now husband) scheduled their wedding on a weekend in
August of 2014 when Wade was not scheduled to be on call. Doc. 15 at ,i,r 171-72; Doc. 26 at
,i,i 171-72. Subsequent to Wade's daughter scheduling her wedding for the weekend in August of
2014, two pediatric cardiac sonographers left the department, requiring the call schedule to be
revised to provide for complete call coverage for the calendar year. Doc. 15 at ,i 173; Doc. 26 at
,i 173. When Josko revised the schedule, she scheduled Wade to cover an athletic screening on
the day of her daughter's wedding, though Wade was able to work with her colleagues to switch
coverage and attended the wedding. Doc. 15 at ,i 174; Doc. 26 at ,i 174.
Ashley Hargreaves was a pediatric cardiac sonographer working in the pediatric cardiac
sonography unit at SMC in the summer of 2014. Doc. 15 at ,i 100; Doc. 26 at ,i 100. Hargreaves
had been employed at Sanford as a pediatric cardiac sonographer since March l 0, 2003, and was
under 40 years old in the summer of 2014. Doc. 15 at ,i,i 99, 115; Doc. 26 at ,i 112. On May 2,
2014, Hargreaves emailed Josko requesting PTO for a period which included June 23 through June
27, 2014. Doc. 16-9 at 10. Josko responded to Hargreaves, informing Hargreaves that another
employee already had vacation that week, and asked if Hargreaves could work on June 26 and 27,
2014. Doc. 16-9 at 10. Hargreaves emailed Josko again on May 27, 2014, asking whether Josko
could grant her PTO request for June 26 and 27, indicating that two physicians would be on
vacation at that time. Doc. 16-9 at 11-12. Josko responded the following day and informed
Hargreaves that her PTO request could not be accommodated. Doc. 16-9 at 11. Hargreaves
emailed Josko back later that day indicating that Hargreaves's husband had already purchased
plane tickets. Doc. 16-9 at 11. Josko emailed Hargreaves back, explaining that one sonographer' s
vacation was already approved and two others were committed to a screening. Doc. 16-9 at 11.
Hargreaves inquired as to whether the screenings could be rescheduled but Josko indicated that
14
"[w]e are committed to the screening on this date." Doc. 16-9 at 11, 42. Hargreaves emailed
Josko again on June 10, 2014, in an attempt to propose ideas that would allow her PTO request to
be accommodated, but was unsuccessful. Doc. 16-9 at 41-42.
According to Josko, Hargreaves called Josko on June 25, 2014, to call in ill for her shift on
June 26. Doc. 16-9 at 16, 40. Josko reported that Hargreaves was still in Tennessee and had not
purchased a plane ticket home and that Hargreaves reported her son and husband were both
throwing up, necessitating her presence. Doc. 16-9 at 40. Hargreaves was issued a written warning
on July 11, 2014, for missing her June 26, 2014, shift. Doc. 16-9 at 14-16. Hargreaves's July 11
written warning documents three prior verbal warnings regarding Hargreaves's attendance and
punctuality, specifically on December 17, 2013, January 2, 2014, and March 26, 2014. Doc. 16-9
at 14. Hargreaves was required to complete skill builders and submit certificates of completion to
Josko as well. Doc. 16-9 at 16. Hargreaves provided a written response which severely criticized
Josko's management and record keeping. Doc. 16-9 at 17-19. Hargreaves contended that Josko
treated employees differently based on whether Josko liked or disliked that employee. Doc. 16-9
at 19. When Hargreaves voluntarily resigned her position with Sanford on January 6, 2016, she
completed an exit survey and again criticized Josko's management. Doc. 15 at ,r,r 117-18; Doc.
16-19 at 9.
Before Wade's termination on September 18, 2014, some of the pediatric cardiologists
complained to Human Resources about Josko' s management of the pediatric cardiac sonography
unit. Doc. 15 at ,r 131; Doc. 26 at ,r 131. At least one pediatric cardiologist complained directly
to Josko regarding her management of the department. Doc. 15 at
,r 132; Doc. 26 at ,r 132.
In
addition, the pediatric cardiologists have complained to their clinic director regarding Josko's
management of the department. Doc. 15 at ,r 133; Doc. 26 at ,r 133. After Wade was terminated,
15
at least one pediatric cardiologist expressed concern that losing a skilled pediatric cardiac
sonographer such as Wade would hinder Sanford's ability to provide adequate coverage for
pediatric cardiac patients. Doc. 15 at
1 134;
Doc. 26 at
1 134.
One pediatric cardiologist, after
Wade was terminated, expressed disagreement with the decision to terminate Wade as she was a
skilled pediatric cardiac sonographer, indicated that Josko was a "bad manager," and expressed an
uncertainty as to why Sanford would terminate a skilled technician for a policy violation. Doc. 15
at 1 135; Doc. 26 at 1135.
II.
Standard of Review
Under Rule 56(a) of the Federal Rules of Civil Procedure, summary judgment is proper
when "the movant shows that there is no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). On summary judgment, the
evidence is "viewed in the light most favorable to the nonmoving party." True v. Nebraska, 612
F.3d 676, 679 (8th Cir. 2010) (quoting Cordry v. Vanderbilt Mortg. & Fin., Inc., 445 F.3d 1106,
1109 (8th Cir. 2006)). There is a genuine issue of material fact if a "reasonable jury [could] return
a verdict for either party" on a particular issue. Mayer v. Countrywide Home Loans, 647 F.3d
789, 791 (8th Cir. 2011). A party opposing a properly made and supported motion for summary
judgment must cite to particular materials in the record supporting the assertion that a fact is
genuinely disputed. Fed. R. Civ. P. 56(c)(l); Gacek v. Owens & Minor Distrib., Inc., 666 F.3d
1142, 1145 (8th Cir. 2012). "Mere allegations, unsupported by specific facts or evidence beyond
the nonmoving party's own conclusions, are insufficient to withstand a motion for summary
judgment." Thomas v. Corwin, 483 F.3d 516, 527 (8th Cir. 2007); see also Reasonover v. St.
Louis Cty., 447 F.3d 569, 578 (8th Cir. 2006) ("Evidence, not contentions, avoids summary
judgment.") (quoting Mayer v. Nextel W. Corp., 318 F.3d 803, 809 (8th Cir. 2003)).
16
Summary
judgment is not "a disfavored procedural shortcut, but rather ... an integral part of the Federal
Rules as a whole, which are designed 'to secure the just, speedy and inexpensive determination of
every action."' Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986) (quoting Fed. R. Civ. P. 1).
Cases alleging discrimination are subject to the same summary judgment standard as any other
case. Torgerson v. City of Rochester, 643 F.3d 1031, 1043 (8th Cir. 2011) (en bane).
III.
Discussion
A. ADEA Claim
The ADEA forbids discrimination against employees, age forty and over, because of their
age. 29 U.S.C. §§ 623(a)(l), 63 l(a). To prove her claim under the ADEA, Wade must show by a
preponderance of the evidence that age was the "but-for" cause of the adverse employment action.
Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 177 (2009) ("[T]he plaintiff [in an ADEA case]
retains the burden of persuasion to establish that age was the 'but-for' cause of the employer's
adverse action."); Buehrle v. City of O'Fallon, 695 F.3d 807, 813 (8th Cir. 2012) ("Under the
ADEA standard, a plaintiff must 'establish that age was the "but-for" cause of the employer's
adverse action."' (quoting Gross, 557 U.S. at 177)). Wade may have her ADEA claim survive
summary judgment "either by providing direct evidence of discrimination or by creating an
inference of unlawful discrimination through the McDonnell Douglas (Corp. v. Green, 411 U.S.
792 (1973)] analysis."
8
Bone v. G4S Youth Servs., LLC, 686 F.3d 948, 953 (8th Cir. 2012).
Wade contends that she has direct evidence of discrimination and, alternatively, that she can satisfy
the McDonnell Douglas test.
8
The Supreme Court explained in Gross that it has not definitively decided whether the McDonnell
Douglas framework applies in ADEA cases. Gross, 557 U.S. at 175 n.2. Nevertheless, the Eighth
Circuit has continued to apply the framework in ADEA cases. See Tusing v. Des Moines lndep.
Cmty. Sch. Dist., 639 F.3d 507, 515 (8th Cir. 2011) (upholding the continued applicability of the
McDonnell Douglas framework after Gross).
17
1. Direct Evidence
The Eighth Circuit has explained that direct evidence in this context "is not the converse
of circumstantial evidence ... [but] 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." Bone,
686 F.3d at 953 (alteration in original) (internal quotation marks omitted) (quoting Torgerson, 643
F.3d at 1044). This evidence "must be 'strong' and must 'clearly point[] to the presence of an
illegal motive' for the adverse action." Id. (alteration in original) (quoting Griffith v. City of Des
Moines, 387 F.3d 733, 736 (8th Cir. 2004)). 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." King v. United States, 553 F.3d 1156, 1161 (8th Cir. 2009)
(internal quotation marks omitted) (quoting King v. Hardesty, 517 F.3d 1049, 1058 (8th Cir.
2008)).
However, "stray remarks in the workplace, statements by nondecisionmakers, and
statements by decisionmakers unrelated to the decisional process do not constitute direct
evidence."
Id. at 1160-61 (internal quotation marks omitted) (quoting Schierhoff v.
GlaxoSmithKline Consumer Healthcare, LP., 444 F.3d 961, 966 (8th Cir. 2006)).
Wade argues that she has presented direct evidence of discrimination on the part of Josko
with evidence of: 1) Wade's history of positive annual performance evaluations; 2) Josko' s treating
younger sonographers more favorably than Wade; 3) Josko "setting Wade up" prior to the missed
shift on September 12, 2014, by indicating that Wade did not need to worry about the absence; and
4) cardiologists' concern about Josko's management of the CVS department. Doc. 24 at 13. None
of this constitutes direct evidence of discrimination because a fact finder would be required to infer
18
from this evidence that age was the motivating factor behind Wade's termination. See Erickson
v. Farmland Indus., Inc., 271 F.3d 718, 725 (8th Cir. 2001) (holding that evidence which depends
on an inference to be viewed as evidence of age animus does not constitute direct evidence of age
discrimination).
The annual performance evaluations indicate Wade was an able cardiac sonographer who
was often praised for her technical skills, but they do not provide "evidence of a discriminatory
attitude" on the part of Josko or a "discriminatory animus in the decisional process" to terminate
her employment. King, 553 F.3d at 1161. Similarly, Wade's allegations that Josko discriminated
against her by treating younger sonographers more favorably also requires a fact finder to infer
discriminatory animus.
Wade testified during her deposition that Josko did not make
discriminatory comments regarding Wade's age:
Q:
A:
Do you contend that at any point in time that Ms. Josko was
your supervisor that she made a comment that she resented
the fact that you were older than her since she was a
supervisor?
No, she did not make any said comments. It was the way
she treated me.
Doc. 16-1 at 25. Allegations that Josko treated Wade differently than other employees but did not
make discriminatory comments toward Wade do not "clearly point to the presence of an illegal
motive" behind Wade's termination.
Bone, 686 F.3d at 953 (internal quotation marks and
alteration omitted). Rather, a fact-finder would have to infer that discriminatory animus was the
reason Josko treated Wade differently than younger sonographers.
Wade also alleges that Josko made comments about Wade's higher salary. Doc. 16-1 at
26-27; Doc. 28 at, 30. Wade testified during her deposition that Josko twice commented that
Wade was paid a higher salary than Josko, one comment being made prior to Josko becoming
Wade's supervisor. Doc. 16-1 at 26--27. Wade does not allege that either comment was made in
19
connection with the decision to terminate her employment, so such comments do not constitute
direct evidence of discrimination. See King, 553 F.3d at 1160 ("We have held that stray remarks
in the workplace, statements by nondecisionmakers, and statements by decisionmakers unrelated
to the decisional process do not constitute direct evidence."). Moreover, comments about salary
do not generally demonstrate a discriminatory attitude with respect to age.
See Brown v.
McDonnell Douglas Corp., 113 F.3d 139, 142 (8th Cir. 1997) ("It is well settled that employment
decisions motivated by characteristics other than age (such as salary and pension benefits), even
when such characteristics correlate with age, do not constitute age discrimination.") (internal
quotation marks and alteration omitted).
Likewise, Wade's allegations that Josko set her up are not direct evidence of age
discrimination.
During her deposition, Wade testified that when she asked Josko about the
consequences of missing the September 12, 2014 shift, Josko told Wade "it would be considered
an unexcused absence, and [Josko] said, [']but you don't miss much work, don't worry about it.[']
There was no talk about disciplinary action." Doc. 16-1 at 20. Viewing the facts in the light most
favorable to Wade, this Court assumes Josko did tell Wade "not to worry about it" prior to Wade
missing her September 12, 2014 shift. However, Josko telling Wade not to worry about an
unexcused absence, and Wade subsequently being terminated, does not establish that Josko was
motivated by an age-based discriminatory animus. Once again, a fact finder would have to infer
the motive for Josko's actions, and when evidence requires such an inference it does not constitute
direct evidence of discrimination. See Erickson, 271 F.3d at 725.
Finally, evidence that the cardiologists at SMC expressed concern about Josko's
management of the CVS department is not direct evidence that Josko discriminated against Wade
on the basis of her age.
Some cardiologists expressed their dissatisfaction with Josko's
20
management of the CVS department prior to Wade's termination. Doc. 15 at ilil 131-33; Doc. 26
at ilil 131-33. After Wade's termination, one cardiologist, Dr. William Waltz (Dr. Waltz), wrote
a letter sharply criticizing Josko and her management of the CVS department. Dr. Waltz described
Josko as "vindictive with [Wade]" and claimed "[Josko's] plan to have [Wade] fired was apparent
for years." Doc. 28-13 at 1. Dr. Waltz further described how Josko "continued to harass and
intimidate [Wade]" and "created and still maintains a hostile work environment" which continued
even after Wade's termination. Doc. 28-13 at 1. Nevertheless, Dr. Waltz's letter does not
constitute direct evidence of age-based discrimination on the part of Josko. Indeed, Dr. Waltz
provided an affidavit stating that "Josko did not do or say anything that led me [to] believe that the
harassment, intimidation, and hostile environment I referenced in the letter I wrote at Wade's
request was based on Wade's age." Doc. 35 at ii 5. A fact finder would have to infer that Josko's
allegedly poor management of the CVS department and behavior toward Wade was the result of
discriminatory animus, so Wade has failed to provide direct evidence of discrimination. See
Erickson, 271 F.3d at 725 .9
2. McDonnell Douglas Standard
9
SMC argued that Wade's direct evidence claim also fails because Wade has not provided
evidence that Josko had the authority to terminate Wade's employment or that Josko played a role
in SMC's decision to terminate Wade's employment. Doc. 29 at 15. In general, a supervisor does
not constitute an employer if that supervisor lacks authority to take tangible employment actions
against the employee. See Merritt v. Albemarle Corp., 496 F.3d 880, 883 (8th Cir. 2007)
(explaining that an employer can be held vicariously liable for the actions of a "supervisor" if that
person had the power "to take tangible employment action against the victim" of harassment).
When representatives of SMC were discussing what course of action to take with Wade on
September 17, 2014, the vice president of Human Resources deferred the decision to others,
including Josko. See Doc. 16-8 at 55 ("I will defer this one to Andy, Bridget and [Josko]"). Yet,
it appears that Josko, despite the invitation from Haugan, did not participate in the decision to
terminate Wade's employment beyond preparing the documentation that was submitted to Human
Resources. Viewing the facts in the light most favorable to Wade, Josko appears to have had
authority to take tangible employment action against Wade and at a minimum this is a question of
fact, but Wade's argument of direct evidence of discrimination fails on other grounds.
21
Under the burden-shifting framework set forth in McDonnell Douglas, Wade has the initial
burden of establishing a prima facie case of age discrimination by showing she: "(l) 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
someone substantially younger." Gibson v. Am. Greetings Corp., 670 F.3d 844, 856 (8th Cir.
2012) (quoting Morgan v. A.G. Edwards & Sons, Inc., 486 F.3d 1034, 1039 (8th Cir. 2007)). If
Wade establishes a prima facie case, then the burden of production shifts to SMC to proffer
legitimate, nondiscriminatory reasons for its actions. Onyiah v. St. Cloud State Univ., 684 F.3d
711, 719 (8th Cir. 2012). If SMC meets this burden, Wade must show that the proffered reasons
were a pretext for age discrimination. Id. Wade at all times retains the "ultimate burden of
persuasion that 'age was the "but-for" cause"' of SMC's adverse action. Id. (quoting Rahlf v.
Mo-Tech Corp., 642 F.3d 633, 637 (8th Cir. 2011)).
Wade unquestionably was over forty years old and suffered an adverse employment action.
SMC initially argued that Wade had failed to meet her burden of establishing the fourth prong of
the prima facie case, but does not provide evidence disputing that Wade was replaced by someone
substantially younger. Wade alleges that she was replaced by a sonographer "in his thirties" in an
affidavit submitted as part of her opposition to SMC's motion for summary judgment. Doc. 28 at
,I 33. This is sufficient evidence to meet her burden on this prong. See Riley v. Lance, Inc., 518
F.3d 996, 1000 (8th Cir. 2008) ("As to part four of the prima facie case, (employer] does not
dispute (employee's] contention that he was replaced with a substantially younger person. That
fact alone gives rise to the necessary inference of age discrimination."). Thus the primary issue
regarding Wade's prima facie case is whether she was meeting her employer's legitimate
expectations at the time she was terminated.
22
· a. Employer's Legitimate Expectations
Wade argues that her annual performance evaluations, lack of salary-related penalties for
attendance issues, and references from various physicians in Sanford's pediatric cardiac unit
establish that she was meeting her employer's legitimate expectations. Doc. 24 at 14. However,
Wade does not address her history of violating SMC's Attendance and Punctuality policy and the
progressive discipline she faced for those infractions. Wade's reliance on her annual performance
evaluations is unconvincing. SMC does not dispute that Wade was a capable sonographer and
does not suggest that Wade was terminated for some issue with her technical skills. Doc. 17 at 15
n.3. Rather, SMC argues that Wade's termination resulted from her unexcused absence from her
September 12, 2014 shift after a history of infractions of the Attendance and Punctuality policy,
as well as failing to follow Josko's directive to attend screenings with Boone.
SMC's Attendance and Punctuality policy establishes that when "an employee does not
meet the attendance expectations outlined, they will be subject to the progressive discipline
process." Doc. 16-10 at 3. SMC's Discipline policy outlines the progressive discipline process,
which progresses from verbal to written reminders, then to a DML, and culminates in termination.
Doc. 16-11 at 3. The Discipline policy provides that employees placed on a DML "must decide
during this leave whether they can commit to Sanford's expectations or choose to resign their
position." Doc. 16-11 at 3. The Discipline policy further states that "[a]n employee may be
terminated due to the frequency or nature of his or her violation ofpolicies and/or continued failure
to meet the performance expectations of their position." Doc. 16-11 at 3 (emphasis added). Wade
received a verbal warning for violations of the Attendance and Punctuality policy in May of 2008,
written warnings in December 2008 and October 2009, more verbal warnings in December of 2011
and November of 2012, and was placed on a DML in December of 2012. See Doc. 16-8 at 22-23,
23
25-29. Per the Discipline policy, termination was the next step in SMC's progressive discipline
process.
While it appears that Wade fails to establish this prong of her prima facie case, one material
factual dispute prevents this Court from granting SMC's motion for summary judgment at this
phase of the McDonnell Douglas framework. Wade alleges that Josko, prior to Wade missing the
September 12, 2014 shift, told Wade "not to worry about it." Doc. 16-1 at 20. Josko has no
recollection of making this statement, and Wade did not mention any such statement by Josko
when Wade made the written remarks on her termination documents, Doc. 16-13 at 3, but at this
stage this Court takes the facts in the light most favorable to Wade. If Wade's supervisor told her
not to worry about receiving an unexcused absence for missing work on September 12, there is a
question of fact as to whether Wade was meeting her employer's legitimate expectations at the
time she was terminated.
SMC also argues that Wade was not meeting the legitimate expectations of her employer
when she failed to accompany Boone to a screening on September 16, 2014. It is undisputed that
Wade told Josko she was not aware of the directive to accompany Boone because she was behind
on reading her emails, Doc. 15 at 1 78; Doc. 26 at 1 78, and Wade also alleges that Dr. Theresa
Stamato (Dr. Stamato) informed Wade that she did not need to accompany Boone that day, Doc.
28 at
1 67.
SMC has provided evidence to establish that the pediatric cardiologists, such as Dr.
Stamato who work at Sanford Clinic, do not schedule, hire, fire, discipline, or complete
performance evaluations for the pediatric cardiac sonographers employed by SMC. Doc. 31 at
16.
Rather, Wade was an employee of SMC and Josko was her supervisor. Doc. 15 at 182. In
her Response to Statement of Genuine Disputes of Material Facts, Wade maintains that Dr.
Stamato did have authority to excuse Wade from accompanying Boone, but Wade cites to no
24
record evidence to support this assertion. Doc. 26 at 1 83. Josko testified during her deposition
that Dr. Stamato had previously mandated that Boone was not to scan on her own without another
sonographer present. Doc. 16-5 at 13. If Dr. Stamato had authority to require that Boone be
accompanied, there is at least a fact question whether Dr. Stamato also had authority to excuse a
sonographer from accompanying Boone. Taking the facts in the light most favorable to Wade,
there is a question of fact whether Wade was excused from accompanying Boone and thus was
meeting her employer's legitimate expectations, so Wade has established a prima facie case of age
discrimination under the McDonnell Douglas framework.
b. Legitimate, Nondiscriminatory Reasons for Terminating Wade
Because Wade has established a prima facie case of age discrimination, the burden shifts
to SMC to articulate a legitimate, nondiscriminatory reason for terminating Wade's employment.
Onyiah, 684 F.3d at 719. The burden to articulate a nondiscriminatory reason is not onerous.
Buchholz v. Rockwell Int'l Corp., 120 F.3d 146, 150 (8th Cir. 1997); see also Krenik v. Cty. of Le
Sueur, 4 7 F .3d 953, 958 (8th Cir. 1995) ("This is a burden of production not proof. The defendant
need not persuade the court, it must simply provide evidence sufficient to sustain a judgment in its
favor.").
SMC has met this burden. As the previous section details, SMC maintains that Wade both
violated SMC's Attendance and Punctuality policy and failed to follow the instructions of her
supervisor to accompany Boone while Wade was on back up call. Wade has a documented history
of discipline for tardiness, as prescribed by SMC's progressive discipline process, which includes
verbal and written warnings, as well as a DML. See Doc. 16-8 at 22-23, 25-29; Doc. 16-13.
Wade testified that Josko informed her that it would be considered an unexcused absence to miss
her September 12, 2014 shift. Doc. 16-1 at 21. SMC has provided evidence that Josko instructed
25
the pediatric cardiac sonographers on September 3, 2014, that the sonographer on back up call was
to accompany Boone to the hospital, Doc. 16-8 at 51, and that Wade when on back up call did not
accompany Boone on September 16, 2014, Doc. 15 at ,r 77; Doc. 26 at ,r 77. The Eighth Circuit
has "consistently held that violating a company policy is a legitimate, non-discriminatory rationale
for terminating an employee." Ebersole v. Novo Nordisk, Inc., 758 F.3d 917, 925 (8th Cir. 2014)
(quoting Twymon v. Wells Fargo & Co., 462 F.3d 925, 935 (8th Cir. 2006)). Thus, SMC has met
its burden at this stage of articulating a legitimate, nondiscriminatory reason for terminating
Wade's employment.
c. Pretext
Because SMC has provided legitimate, nondiscriminatory reasons for terminating Wade's
employment, the burden shifts back to Wade to establish pretext. Although there are multiple
ways to demonstrate pretext, plaintiffs typically do so by offering evidence that the employer's
rationale is "unworthy of credence ... because it has no basis in fact" or that "a [prohibited] reason
more likely motivated the employer." Torgerson, 643 F.3d at 1047 (alteration in original) (quoting
Wallace v. DTG Operations, Inc., 442 F.3d 1112, 1120 (8th Cir. 2006)). To survive summary
judgment at this stage, Wade must "present evidence, that considered in its entirety (1) creates a
fact issue as to whether [SMC's] proffered reasons are pretextual and (2) creates a reasonable
inference that age was a determinative factor in the adverse employment decision." Tusing, 639
F.3d at 516 (quoting Wingate v. Gage Cty. Sch. Dist., No. 34, 528 F.3d 1074, 1079 (8th Cir.
2008)).
Wade has not met her burden. To argue that SMC's proffered reasons are pretextual, Wade
relies heavily on her history of good annual performance evaluations. Wade asserts that because
she "never received any negative reviews in her annual reports for tardiness" and that her
26
performance evaluations "all indicate that she met, or exceeded, Sanford's expectations[,]" there
are genuine issues of fact as to whether SMC's proffered justifications are pretext. Doc. 24 at 1516. Wade cites to this Court's opinion in Dunn v. Lyman School District 42-1, 35 F. Supp. 3d
1068 (D.S.D. 2014), in support of her argument. In Dunn, the defendant school district asserted
that the decision not to renew the plaintiffs contract was based upon various concerns with the
plaintiff's job performance. Id. at 1085. While noting that Eighth Circuit precedent establishes
that a history of good performance reviews does not alone create a genuine issue of material fact
regarding pretext, this Court denied the defendant school district's motion for summary judgment.
Id. at 1085-86. In doing so, this Court found that the plaintiff's history of strong performance
reviews, in conjunction with the absence of documented performance problems or warnings by the
defendant school district to the plaintiff regarding those issues, constituted evidence of possible
pretext. Id. at 1086.
Wade's case is distinguishable from Dunn.
While Wade is correct that her annual
performance evaluations all reflect that she met or exceeded (indeed at times with "outstanding
performance") SMC's expectations, those evaluative categories did not include punctuality and
thus do not contradict her documented history of discipline for infractions of the Attendance and
Punctuality policy. Moreover, Wade is incorrect in asserting that her evaluations make no mention
of her issues with the Attendance and Punctuality policy. Wade's 2009 evaluation documented
the December 2008 written warning, Doc. 30-5 at 3; her 2010 evaluation noted that she received
another written warning in October of 2009, Doc. 28-4 at 11; her 2012 evaluation stated that Wade
was asked to work on her punctuality, Doc. 26-6 at 8; her 2013 evaluation recorded that Wade was
placed on a DML in December of 2012 for excessive tardiness, Doc. 28-7 at 7; and her 2014
evaluation stated that Wade "continues to struggle with time management," Doc. 28-8 at 8. As
27
opposed to the dearth of documented performance issues in Dunn, Wade's issues with respect to
SMC's Attendance and Punctuality policy are well documented and follow the progressive
discipline process established in SMC's Disciplinary policy. See Doc. 16-8 at 22-23, 25-29. The
fact that Wade received good, and even excellent, reviews regarding her technical skills as a
sonographer, and that physicians at Sanford provided glowing recommendations of her, do not
create a fact issue as to whether SMC's rationale that Wade was terminated for violating the
Attendance and Punctuality policy was merely pretext. There is undisputed evidence that Wade
was disciplined multiple times for violations of the Attendance and Punctuality policy prior to her
termination; that she was at the last step in the progressive discipline process prior to her
termination; and that she was terminated after missing her scheduled shift on September 12, 2014,
and not accompanying Boone to the hospital when Wade was on back up call. In light of these
undisputed facts, the presence of positive performance evaluations does not create a genuine issue
of material fact regarding pretext. See Lewis v. St. Cloud State Univ., 467 F.3d 1133, 1137-38
(8th Cir. 2006) ("While favorable performance reviews sometimes provide evidence of pretext, ..
. we agree with the district court that receipt of positive reviews in the past, in and of itself, does
not necessarily raise an inference of age discrimination.") (internal quotation marks and citations
omitted); Rose-Matson v. NME Hosps., Inc., 133 F.3d 1104, 1109 (8th Cir. 1998) (explaining that
while employee's performance evaluations may demonstrate that employee performed well in the
past, they did "not render her more recent negative evaluations inherently untrustworthy").
Wade has also failed to present evidence which "creates a reasonable inference that age
was a determinative factor" in the decision to terminate her employment. Tusing, 639 F.3d at 516.
In an attempt to create such an inference, Wade alleges that Josko discriminated against Wade and
treated younger sonographers more favorably, that all the sonographers in the pediatric unit were
28
routinely tardy but Wade alone was punished for it, that nobody else in the unit had been terminated
for being tardy, and that Hargreaves was punished less severely for the same conduct which
resulted in Wade's termination. However, the evidence in the record belies these allegations or
any inference that age was a factor in the decision to terminate Wade.
Wade asserts that Josko discriminated against her due to her age and treated younger
technicians more favorably and that Josko complained to Wade about the difference in their
salaries and ages, as well as disliking supervising someone who was older. Doc. 24 at 13; Doc.
28 at
,r 30.
However, Wade's contentions are refuted by her own deposition testimony. During
her deposition, Wade was specifically asked about Josko's alleged comments regarding age:
Q:
A:
Do you contend that at any point in time that Ms. Josko was
your supervisor that she made a comment that she resented
the fact that you were older than her since she was a
supervisor?
No, she did not make any said comments. It was the way she
treated me.
Doc. 16-1 at 25. In her affidavit opposing SMC's motion for summary judgment, Wade stated
that "I don't recall the specific representations that she made, but I do recall feeling that she did
not like the fact that I was older than she was or that I had as much experience as I did in the unit."
Doc. 28 at ,r 30. As an initial matter, Wade may not rest on an affidavit or a contention in her brief
alleging Josko made age-based discriminatory comments when her deposition testimony directly
contradicts that allegation. See City of St. Joseph v. Sw. Bell Tel., 439 F.3d 468, 476 (8th Cir.
2006) (explaining that a party may not create a genuine issue of material fact to defeat summary
judgment by submitting an affidavit that contradicts earlier deposition testimony). Wade testified
that Josko did not make comments that she resented the fact that Wade was older, but rather
expressed a feeling that Josko resented her age. But these feelings do not constitute evidence of
29
discriminatory animus. See Reasonover, 447 F.3d at 578 ("Evidence, not contentions, avoids
summary judgment.").
Josko's alleged comments about Wade's higher salary also fail to establish pretext on the
part of SMC in terminating Wade's employment. As explained in Part III.A.l above, comments
about salary are not direct evidence of discrimination. Brown, 113 F.3d at 142. Similarly, these
isolated comments-about a characteristic that is at best only correlated with age and unrelated to
the decision to terminate Wade's employment--do not demonstrate pretext on the part of SMC.
See Kneibert v. Thomson Newspapers. Mi. Inc., 129 F.3d 444,454 (8th Cir. 1997) (commenting
that "evidence that an employer takes an adverse employment action against an employee due to
that employee's higher salary does not necessarily support an inference of age discrimination" and
finding the plaintiff had failed to establish a connection between his demotion and age where he
had received repeated warnings about his performance and his employer had made one alleged
comment that the plaintiff "was making too much money"); see also Erenberg v. Methodist Hosp.,
240 F. Supp. 2d 1022, 1033 (D. Minn. 2003) (finding that "[c]ase law supports the notion that
isolated comments that are remote in time and not related to the employment decision are
insufficient to establish pretext for discrimination"). In Wade's case, there is no evidence that the
decision to terminate Wade had any connection to her salary or any comments made by Josko
about her salary. As a matter oflaw, Josko' s alleged comments do not support an inference of age
discrimination.
In further support of her contention that Josko discriminated against her, Wade alleges that
Josko "set her up" by 1) making her feel like a DML was of little consequence by telling Wade
that she, Josko, had received a DML herself prior to being promoted and 2) telling Wade "not to
worry" about missing her scheduled shift on September 12, 2014. Doc. 24 at 13. During her
30
deposition, Wade testified that at some point after being placed on a DML in December of 2012
she called in to work-pursuant to her action plan-to inform Josko that she would be late due to
snow. Doc. 16-1 at 18. Wade further testified that Josko told her at that time it was no longer
necessary to call in and that Josko "had been through the decision-making leave herself for
tardiness and not to worry about it." 10 Doc. 16-1 at 18. Wade did not give a date as to when this
conversation took place, but it must have been well before Wade's termination in September of
2014 because snow was the factor making Wade late to work. Such a comment, even when
considered together with Josko reportedly telling Wade "not to worry" about missing her
September 12, 2014 shift, does not give rise to an inference of age-based discrimination.
Additionally, Wade's assertion that Josko was setting her up by telling her not to worry about
missing her shift is undermined by Wade's own testimony.
Q:
A:
Q:
A:
And during that phone call Ms. Josko told you that if you
were not at work on Friday, September 12, it would be
considered an unexcused absence?
No. We talked at the clinic. It was in-person. It wasn't-I
tried calling Sandy on my way home, and she didn't answer.
When she told me that it would be-I asked her what would
happen ifl wasn't there, and she said it would be considered
an unexcused absence, and she said, but you don't miss
much work, don't worry about it. There was no talk about
disciplinary action.
Okay. Did you specifically ask Ms. Josko whether you
would be disciplined for an unexcused absence?
No. I asked her-I said, so if I don't come, what will
happen? She said[] it will be counted as an unexcused
absence. And I just didn't miss that kind of work, so it's the
first time ever I've not been able to cover a shift I was
covered [sic] for, so ... I assumed I would be talked to for
having missed, but there was no talk of discipline.
10
Josko testified that she never received a DML, Doc. 16-5 at 9, and SMC's documentation
corroborates Josko's testimony. Doc. 33 at ,r 12. However, the fact that Josko never received a
DML does not establish that she did or did not make the statement alleged by Wade.
31
Q:
[Y]ou clearly understood on the basis of that conversation
that if you did not work your shift on Friday, September 12,
that it would be an unapproved absence?
Yes.
And did you specifically ask Ms. Josko, will this result in
any discipline?
No, I did not.
And did Ms. Josko tell you that this will not result in any
discipline?
No.
A:
Q:
A:
Q:
A:
Doc. 16-1 at 20-21. Despite Wade's contention that Josko was setting her up, Wade's testimony
makes clear that Josko informed Wade that missing her shift would be considered an unexcused
absence and that Josko said nothing about whether Wade would be disciplined. Even considered
in the light most favorable to Wade, these facts do not support an inference of discrimination.
Wade also alleges that younger sonographers were treated more favorably by Josko. In her
Response to Statement of Genuine Disputes of Material Fact, Wade cites to paragraph 54 of her
affidavit in alleging that younger sonographers were routinely tardy and did not receive a DML.
Doc. 26 at
,r,r 29-36.
That paragraph in the affidavit alleges that Hargreaves was routinely tardy
for work and also missed work on several occasions for personal reasons, yet did not receive a
DML. Doc. 28 at
,r 54.
In her brief in opposition to SMC's motion, Wade alleges that "all the
technicians in the pediatric unit were routinely tardy for clocking into work." Doc. 24 at 16. Wade
has provided no evidence that the other sonographers in the pediatric cardiac unit were routinely
tardy and not disciplined, thus she cannot rely on this conclusory allegation to avoid summary
judgment. See Rose-Matson, 133 F.3d at 1109 (holding that the plaintiffs claims that she was
treated differently than similarly situated employees by being subjected to a different evaluation
process than her fellow employees did not create a genuine issue of material fact precluding
summary judgment because "unsubstantiated and conclusory allegations are insufficient to support
an inference of pretext"). For this same reason, Wade cannot create an inference of pretext by
32
asserting, as she does in her affidavit, that "Josko would favor the younger techs in the pediatric
cardiac unit, who[] were in their early to mid-thirties, and treated them more fairly than she treated
me." Doc. 28 at, 32. Because Wade has not substantiated this claim, she has failed to create an
inference of pretext.
The only concrete example of disparate treatment Wade provides is the written warning
Hargreaves received in the summer of 2014 for missing a scheduled shift. As detailed in Part LB
above, Hargreaves was issued a written warning on July 11, 2014, for missing her scheduled shift
on June 26, 2014. At that time, Hargreaves had received three prior verbal warnings, but no written
warnings and no DML. Doc. 16-9 at 14. This fact is fatal to Wade's contention that Hargreaves's
written warning is evidence of pretext. "At the pretext stage, 'the test for determining whether
employees are similarly situated to a plaintiff is a rigorous one[,]' [and Wade] must show that she
and [Hargreaves] were 'similarly situated in all relevant respects."' Bone, 686 F.3d at 956 (quoting
Rodgers v. U.S. Bank, N.A., 417 F.3d 845, 853 (8th Cir. 2005)). Wade and Hargreaves were not
similarly situated in all relevant respects because Hargreaves was not at the same step in SMC's
progressive discipline process as Wade. At the time of her termination, Wade had received three
verbal warnings and two written warnings, and been placed on a DML, which was the final step
in the progressive discipline process before termination. In addition, there is no allegation that
Hargreaves also failed to accompany Boone while on back up call. See Clark v. Runyon, 218 F.3d
915, 918 (8th Cir. 2000) ("[T]he individuals used for comparison must have dealt with the same
supervisor, have been subject to the same standards, and engaged in the same conduct without any
mitigating or distinguishing circumstances.") (emphasis added). Hargreaves, as a matter of law,
is not a valid comparator and thus Wade cannot create an inference that discrimination motivated
33
SMC's decision to terminate her employment by pointing to disparate treatment between herself
and Hargreaves. 11
Beyond the above analysis, there is additional evidence in the record which undermines
Wade's assertion that she was treated less favorably than the younger pediatric cardiac
sonographers. Hargreaves-who was under forty years old-made very similar complaints about
Josko's management when she received her written warning and at the time of her voluntary
resignation from SMC as Wade has alleged in this case. See Doc. 16-9 at 17-19; Doc. 16-19 at 9.
Relatedly, Judy Hruska, a pediatric cardiac sonographer who worked under Josko and was over
the age of forty, submitted an affidavit explaining that her decision to retire was not related to any
harassment and that during the time Josko was her supervisor, Hruska was not treated unfairly by
Josko, harassed by Josko, or discriminated against by Josko on the basis of her age. Doc. 32 at
,r,r 4-5.
Of course the fact that one individual in a protected class did not face discrimination does
not lead to the conclusion that no member of that protected class faced discrimination. See, e.g.,
Hively v. Ivy Tech Cmty. Coll. of Ind., 853 F.3d 339, 346 n.3 (7th Cir. 2017) ("[T]he Supreme
Court has made it clear that a policy need not affect every woman to constitute sex
discrimination.") (emphasis in original). But in Wade's case, a younger employee making very
similar claims about Josko as Wade alleges and an employee in the protected age category
disclaiming any suggestion of unfair treatment or age discrimination, coupled with the lack of
other evidence to suggest Josko was motived by a discriminatory animus against Wade, combine
11
As detailed in Part LA above, Kramer's September 17, 2014 email requesting input on what
disciplinary action to take with Wade mentions that"[ w]e have had a couple other situations within
Sanford in which we gave the employees an additional DML if time had passed since the
previous." Doc. 16-8 at 53. Wade does not allege pretext based on other employees at SMC
receiving a second DML rather than termination. Indeed, such a contention would fail because
Wade has not produced evidence establishing that she was "similarly situated in all relevant
respects" to these employees. Bone, 686 F.3d at 956.
34
to suggest that Wade's claims of age-based discrimination do not withstand a motion for summary
judgment. Next, despite Wade's contention to the contrary, other employees at SMC (though
apparently not from the pediatric cardiac sonography unit) have been terminated for violations of
the Attendance and Punctuality policy. See Doc. 16-9 at 20-38. Finally, Wade contends that
Josko is the only employee of SMC who discriminated against her, but Josko was not Wade's
supervisor when Wade received her first verbal warning and first and second written warnings for
violating the Attendance and Punctuality policy.
The evidence Wade has presented establishes that she was a skilled pediatric cardiac
sonographer who was valued by the physicians with whom she worked. Wade has also presented
evidence that Josko may have been a poor manager and unreasonably rigid in failing to explore
options to accommodate the vacation requests of various employees under her supervision.
However, Wade has not presented evidence which suggests that SMC's rationale for terminating
Wade is mere pretext, and this Court is not empowered to punish SMC for making poor business
decisions. See Hutson v. McDonnell Douglas Corp., 63 F.3d 771, 781 (8th Cir. 1995) ("It has
become a commonplace for this court to observe ... that the employment-discrimination laws
have not vested in the federal courts the authority to sit as super-personnel departments reviewing
the wisdom or fairness of the business judgments made by employers, except to the extent that
those judgments involve intentional discrimination."). Because Wade has not presented direct
evidence of age-based discrimination, and because she cannot satisfy her burden under the
McDonnell Douglas framework, SMC is entitled to summary judgment on Wade's ADEA claim.
B. Hostile Work Environment
To prove a claim of hostile work environment based on age, Wade must show "(l) [she]
belongs to a protected group[;] (2) [she] was subjected to unwelcome harassment based on age ..
35
. [;] (3) the harassment affected a term, condition, or privilege of [her] employment; (4) [her]
employer knew or should have known of the harassment;
12
and (5) the employer failed to take
proper action." Rickard v. Swedish Match N. Am., Inc., 773 F.3d 181, 184 (8th Cir. 2014)(quoting
Peterson v. Scott Cty., 406 F.3d 515, 523-24 (8th Cir. 2005)).
To determine whether the
harassment affected a term, condition, or privilege of employment, a court must "consider the
totality of the circumstances, including the frequency and severity of the conduct, whether it is
physically threatening or humiliating, and whether it unreasonably interferes with [the employee's]
job performance." Sellers v. Deere & Co., 791 F.3d 938, 945 (8th Cir. 2015) (internal quotation
12
The Eighth Circuit has explained that the element requiring that the employer knew or should
have known of the harassment is required "[w]hen the alleged harasser is the plaintiffs fellow
employee" but that it does not apply to allegations of "supervisory harassment." Ryan v. Capital
Contractors. Inc., 679 F.3d 772, 778 (8th Cir. 2012) (citing Palesch v. Mo. Comm'n on Human
Rights, 233 F.3d 560, 566 n.5 (8th Cir. 2000)). An employer is vicariously liable for harassment
by a supervisor, but in order to be considered a supervisor, "the alleged harasser must have had
the power (not necessarily exercised) to take tangible employment action against the victim, such
as the authority to hire, fire, promote, or reassign to significantly different duties." Id. at 778-79.
As explained in a footnote in Part III.A. I above, there is at least a fact question as to whether Josko
fits the Eighth Circuit's definition of a "supervisor." Wade admits that she did not report
allegations that Josko was discriminating against her on the basis of her age. Doc. 15 at ,r 124;
Doc. 26 at ,r 124. Wade instead alleges that Andy Munce (Munce), a vice president at Sanford,
required Josko to complete a Hogan Management Assessment because Josko had issues working
with Wade, Doc. 28 at ,r 34, and that Josko's treatment of Wade was "noticed by the physicians
at Sanford," Doc. 28 at ,r 41. In an affidavit, Munce stated that Wade never reported to him that
Josko was treating her differently than other employees on the basis of age, or that Josko was
harassing Wade or creating a hostile work environment based on Wade's age. Doc. 31 at ,r,r 9-10.
Dr. Waltz, who wrote in a letter that Josko harassed and intimidated Wade and fomented a hostile
work environment, signed an affidavit stating that he did not believe Josko's actions were based
on Wade's age. The physicians referenced in Wade's affidavit, including Dr. Waltz, are employed
by Sanford Clinic, not SMC. Doc. 35 at ,r 1. If somehow Josko was not a "supervisor" under
Eighth Circuit precedent and Wade was required to establish the fourth element of a hostile work
environment claim, her claim would likely fail because her representations to Munce that "[Josko]
had put us in between a rock and a hard place and that it was very hard to do the things needed in
the peds program" would not satisfy her requirement to show that SMC knew of alleged
harassment by Josko. Doc. 16-1 at 28. However, because Wade cannot satisfy the second or third
element of a hostile work environment claim, this Court need not resolve whether Wade needs to
or has met the fourth element of such a claim.
36
marks omitted). This element "involves both objective and subjective components" and "requires
that the harassment be severe or pervasive enough to create an objectively hostile or abusive work
environment and the victim must subjectively believe her working conditions have been altered."
Moses v. Dassault Falcon Jet-Wilmington Corp, 894 F.3d 911, 922 (8th Cir. 2018) (internal
quotation marks and alterations omitted).
"The Supreme Court has cautioned courts to be alert for workplace behavior that does not
rise to the level of actionable harassment." Al-Zubaidy v. TEK Indus., Inc., 406 F.3d 1030, 1038
(8th Cir. 2005). The standards for a hostile work environment claim are stringent and meant to
"filter out complaints attacking the ordinary tribulations of the workplace, such as sporadic use of
abusive language ... and occasional teasing." Faragher v. City of Boca Raton, 524 U.S. 775, 788
(1998) (internal quotation marks omitted). Wade is required to show "that the alleged harassment
was so intimidating, offensive, or hostile that it 'poisoned the work environment."' Scusa v. Nestle
U.S.A. Co., 181 F.3d 958,967 (8th Cir. 1999) (quoting Scott v. Sears, Roebuck & Co., 798 F.2d
210,214 (7th Cir. 1986)).
Wade's hostile work environment claim weaves together the allegations of discrimination
by Josko as discussed above, with several actions by Josko allegedly intended to undermine
Wade's position in the pediatric cardiac sonography unit. The allegations of discrimination
discussed above do not create a reasonable inference of discriminatory animus based on age and
need not be reanalyzed here. In order to consider the "totality of the circumstances" in evaluating
Wade's hostile work environment claim, however, this Court does consider those allegations,
along with Wade's allegations that Josko worked to undermine her position. Sellers, 791 F.3d at
945. When viewed in totality, these cumulative actions as a matter of law fail to satisfy the
elements of a hostile work environment claim because there is no basis to conclude that Josko
37
harassed Wade because of her age or that any actions of Josko affected a term, condition, or
privilege of Wade's employment.
Josko's actions allegedly taken to undermine Wade's position can be categorized as either
favoring younger technicians or otherwise acting vindictively toward Wade.
As to the first
category, Wade alleges that Josko treated younger sonographers more favorably and created a
hostile work environment, Doc. 28 at 11 31-32, that Josko would "disregard" Wade and give other
employees leadership roles despite Wade being lead tech, Doc. 28 at ,i 34, and that Josko would
"bypass [Wade] on new developments" and would instead go to younger sonographers, Doc. 28
at ,i 36. Wade's allegations that younger techs were treated more favorably are not substantiated
by any evidence in the record, and such "unsubstantiated and conclusory allegations" are
insufficient to satisfy her burden of showing she was harassed on the basis of her age. See RoseMatson, 133 F.3d at 1109.
As to being disregarded and passed over for leadership roles, Wade points primarily to
Salzwedel being tasked with training the other sonographers in the pediatric cardiac unit in
maternal fetal medicine (MFM). Doc. 16-1 at 29. Salzwedel had obtained a certificate in fetal
echocardiography that none of the other sonographers possessed. Doc. 16-9 at 49. Nevertheless,
Wade asserts that being the formal preceptor in the unit, the task of training the other pediatric
cardiac sonographers in MFM should have fallen to her instead. Doc. 16-9 at 29. Wade testified
that the preceptor's duty was to train new employees of the pediatric unit, for which she received
additional compensation during the time she was training. Doc. 15 at ,i 4; Doc. 26 at 1 4; Doc. 161 at 29. Salzwedel did not receive additional compensation to conduct this internal MFM training
and was training current, not new, employees. Doc. 16-1 at 29. Thus, the decision to have a
sonographer who possessed a specific certification to conduct internal MFM training of the
38
pediatric cardiac sonography unit without additional compensation did not affect a "term,
condition, or privilege" of Wade's employment. Rickard, 773 F.3d at 184.
Wade also points to quality assurance projects and the development of a peer review
process-apparently tasked to other, younger sonographers-as examples of being bypassed for
leadership roles. Wade testified that Salzwedel was tasked with the pediatric cardiac sonography
unit's quality assurance projects, and that Wade and other younger sonographers sought to be
trained to do quality assurance projects while Salzwedel was on maternity leave. Doc. 16-1 at 6,
29. According to Wade, neither she nor any of the younger sonographers who requested that
training received it. Doc. 16-1 at 6, 29. Importantly, Wade testified that when this training request
was made, "[Salzwedel] said no, and [Josko] didn't push it at all." Doc. 16-1 at 6. This allegation
fails to support a hostile work environment claim for two reasons.
First, it was apparently
Salzwedel that rejected the request by Wade to be trained to complete quality assurance projects,
not Josko, who is the only individual at SMC that Wade alleges discriminated against her. Second,
there is no disparate treatment between Wade and the younger sonographers who also did not
receive this requested training. As for the peer review process, Wade testified that although
Bohnenberger was tasked with developing the peer review process, SMC "didn't ever start doing
the peer reviews for pediatrics." Doc. 16-1 at 6. Wade's hostile work environment claim cannot
withstand summary judgment on the basis that a younger sonographer, rather than Wade, was
tasked with developing a peer review process that was apparently never used at SMC, for such an
allegation, even if true, did not affect a "term, condition, or privilege" of Wade's employment.
Rickard, 773 F.3d at l 84. Moreover, even if that peer review process had been implemented at
SMC, the allegation still would not support Wade's hostile work environment claim because
assigning internal process development tasks to other sonographers in the pediatric cardiac
39
sonography unit did not undermine Wade's position as the formal preceptor-
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