Grimsley v. Methodist Richardson Medical Center Foundation Inc et al
Filing
67
MEMORANDUM OPINION AND ORDER granting 59 Motion for Summary Judgment filed by Richardson Hospital Authority. (Ordered by Chief Judge Sidney A Fitzwater on 10/3/2012) (Chief Judge Sidney A Fitzwater)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
DAVID GRIMSLEY,
Plaintiff,
VS.
RICHARDSON HOSPITAL
AUTHORITY, d/b/a RICHARDSON
REGIONAL MEDICAL CENTER
Defendant.
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§ Civil Action No. 3:09-CV-2011-D
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MEMORANDUM OPINION
AND ORDER
In this case alleging age discrimination and retaliation, in violation of the Age
Discrimination in Employment Act of 1967 (“ADEA”), 29 U.S.C. § 621 et seq., the court
must determine whether plaintiff has raised a genuine issue of material fact. Concluding that
he has not, the court grants defendant’s motion for summary judgment and dismisses this
action with prejudice.
I
In January 2007, James Horton (“Horton”), the Director of Pharmacy at defendant
Richardson Hospital Authority, d/b/a Richardson Regional Medical Center (“RRMC”) hired
plaintiff David Grimsley (“Grimsley”) to work as a pharmacy technician.1 At the time he
1
In recounting the factual background, the court summarizes the evidence in the light
most favorable to Grimsley as the summary judgment nonmovant and draws all reasonable
inferences in his favor. See, e.g., Owens v. Mercedes-Benz USA, LLC, 541 F.Supp.2d 869,
870 n.1 (N.D. Tex. 2008) (Fitzwater, C.J.) (citing U.S. Bank Nat’l Ass’n v. Safeguard Ins.
Co., 422 F.Supp.2d 698, 701 n.2 (N.D. Tex. 2006) (Fitzwater, J.)).
was hired, Grimsley was 40 years old. As a pharmacy technician, Grimsley was expected
to assist RRMC’s pharmacists in the control, distribution, preparation, and charging of drugs
for patient care. From January 2007 until November 2007 Grimsley did not have any
performance or disciplinary problems.
In November 2007 Matthew W. Moss (“Moss”) replaced Horton as the Director of
Pharmacy. When in February 2008 Moss received an email from Dianna Goodman-Lawson
(“Lawson”), a cath lab nurse, in which Lawson complained that her Pyxis machine2 had not
been filled “[a]gain,” Moss issued a verbal warning to Grimsley. In connection with this
verbal warning, Moss completed a disciplinary action notice on February 1, 2008 stating that
the cath lab Pyxis was not filled on two occasions and that Grimsley “has also been slow to
complete his daily tasks as compared to other technicians and new hires.” D. App. 20.
On February 14, 2008 Moss issued a “First Written Warning” to Grimsley stating that
Grimsley had failed to stock the Pyxis machines with the Add-Vantage piggyback antibiotics
for OPS (Outpatient surgery), ER (Emergency Room), and OR (operating room). The
warning also noted that, on February 10 and 14, 2008, Grimsley “ha[d] made several errors
when refilling the emergency crash cart medication trays.” Id. at 21. When Grimsley was
given the written warning, he questioned the validity of the report because he had not
2
According to RRMC, a Pyxis machine is an automated machine designed to be
stocked with specific drugs that may be immediately necessary for a particular procedure
being performed in the hospital. These machines are located in different rooms in the
hospital, such as the operating or emergency room, where the need for the drugs is
immediate.
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worked on February 10, 2008 and was not presented with any evidence confirming the
allegations asserted in the written warning. According to Grimsley, Moss maintains that he
may have been in error regarding the date, Moss was unsure about whether Grimsley
actually made the mistake, and Moss concedes that he never showed Grimsley any evidence
to confirm the allegations in the written warning.
On February 25, 2008 Grimsley was issued a “Second Written Warning.” This
warning stated, “[w]hen filling the OR medications, [Grimsley] misfilled 2 anesthesia boxes.
Both boxes were filled, sealed, and signed-off on by [Grimsley] prior to being delivered to
OR.” Id. at 26. It also stated that the missing medications were “clinically essential and
must be available to anesthesia at the time of the procedure.” Id. And it concluded that,
because this was the third time Grimsley had been counseled for failing to stock medications
promptly and accurately, he was “to be immediately relieved from his duties and
terminated.” Id. Moss and Human Resources Manager Stacy Pinkerton (“Pinkerton”)
presented the written warning to Grimsley and informed him that his employment with
RRMC was being terminated. At the time, Grimsley was 41 years old.
Grimsley alleges that, after being issued the second written warning, he told Moss that
he had not committed the mistakes and that the newly-hired, younger employees had
committed them. Grimsley also asserts that he informed Moss of a number of mistakes that
the newly-hired employees had made.
Grimsley later filed a charge of discrimination with the Equal Employment
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Opportunity Commission. After receiving a right to sue letter, he filed the instant lawsuit
alleging discrimination and retaliation, in violation of the ADEA.3 RRMC moves for
summary judgment on both of Grimsley’s claims.
II
RRMC moves for summary judgment on claims as to which Grimsley will bear the
burden of proof at trial. Because Grimsley will have the burden of proof, RRMC can meet
its summary judgment obligation by pointing the court to the absence of evidence to support
Grimsley’s claims. See Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). Once RRMC
does so, Grimsley must go beyond his pleadings and designate specific facts showing there
is a genuine issue for trial. See id. at 324; Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th
Cir. 1994) (en banc) (per curiam). An issue is genuine if the evidence is such that a
reasonable jury could return a verdict in Grimsley’s favor. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248 (1986). Grimsley’s failure to produce proof as to any essential element
of a claim renders all other facts immaterial. See Trugreen Landcare, L.L.C. v. Scott, 512
F.Supp.2d 613, 623 (N.D. Tex. 2007) (Fitzwater, J.) (citations omitted). Summary judgment
is mandatory if Grimsley fails to meet this burden. Little, 37 F.3d at 1076.
3
Grimsley initially sued Methodist Richardson Medical Center Foundation, Inc., d/b/a
Methodist Richardson Medical Center (“MRMC”) and MHSR Medical Center (“MHSR”).
The parties stipulated to the dismissal of MHSR, and the court granted a motion for summary
judgment filed by MRMC, but it permitted Grimsley to file an amended complaint to sue
RRMC as a defendant. Only RRMC remains as a party-defendant.
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III
The court turns first to Grimsley’s age discrimination claim.
It is unlawful under the ADEA “to discharge any individual or otherwise discriminate
against any individual with respect to his compensation, terms, conditions, or privileges of
employment, because of such individual’s age.” 29 U.S.C. § 623(a)(1). To prove age
discrimination, Grimsley can rely on direct or circumstantial evidence.
See, e.g.,
Machinchick v. PB Power, Inc., 398 F.3d 345, 350 (5th Cir. 2005) (“We have traditionally
bifurcated ADEA cases into distinct groups: those in which the plaintiff relies upon direct
evidence to establish his case of age discrimination, and those in which the plaintiff relies
upon purely circumstantial evidence.”). “Direct evidence is evidence that, if believed,
proves the fact of discriminatory animus without inference or presumption.” West v. Nabors
Drilling USA, Inc., 330 F.3d 379, 384 n.3 (5th Cir. 2003) (quoting Sandstad v. CB Richard
Ellis, Inc., 309 F.3d 893, 897 (5th Cir. 2002) (internal quotation marks omitted)). “In other
words, to qualify as direct evidence of discrimination, an employer’s comment ‘must be
direct and unambiguous, allowing a reasonable jury to conclude without any inferences or
presumptions that age was an impermissible factor in the decision to terminate the
employee.’” Read v. BT Alex Brown Inc., 72 Fed. Appx. 112, 119 (5th Cir. 2003) (quoting
EEOC v. Tex. Instruments Inc., 100 F.3d 1173, 1181 (5th Cir. 1996)). Direct evidence of
discrimination is rare, however. See, e.g., Rutherford v. Harris Cnty., Tex., 197 F.3d 173,
180 n.4 (5th Cir. 1999) (sex discrimination case) (stating that because direct evidence is rare
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in discrimination cases, plaintiff must ordinarily use circumstantial evidence to satisfy her
burden of persuasion).
If Grimsley lacks direct evidence of discrimination, he can prove discrimination using
the burden shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).4
As “[a] plaintiff relying on circumstantial evidence[,][he] must put forth a prima facie case,
at which point the burden shifts to the employer to provide a legitimate, nondiscriminatory
reason for the employment decision.” Berquist v. Wash. Mut. Bank, 500 F.3d 344, 349 (5th
Cir. 2007). RRMC’s burden is one of production, not of proof, and involves no credibility
assessments. See, e.g., West, 330 F.3d at 384-85. If RRMC articulates a legitimate,
nondiscriminatory reason for the employment decision, Grimsley must introduce evidence
that would enable a reasonable trier of fact to find that RRMC’s purported explanation is
merely pretextual. See, e.g., Jackson v. Cal-Western Packaging Corp., 602 F.3d 374, 378-79
(5th Cir. 2010). These three steps constitute the McDonnell Douglas framework. “Although
intermediate evidentiary burdens shift back and forth under this framework, ‘[t]he ultimate
burden of persuading the trier of fact that the defendant intentionally discriminated against
the plaintiff remains at all times with the plaintiff.’” Reeves v. Sanderson Plumbing Prods.,
4
In Gross v. FBL Financial Services, Inc., 557 U.S. 167 (2009), the Supreme Court
noted that it “has not definitively decided whether the evidentiary framework of McDonnell
Douglas . . . is appropriate in the ADEA context.” Id. at 175 n.2. The Court relied instead
on a textual analysis of the ADEA to resolve the question whether a plaintiff can succeed on
a “mixed-motives” claim of age discrimination. Absent Supreme Court authority, the court
will follow the Fifth Circuit’s post-Gross precedent and apply McDonnell Douglas to ADEA
cases. See, e.g., Moss v. BMC Software, Inc., 610 F.3d 917, 922 (5th Cir. 2010) (applying
McDonnell Douglas framework to ADEA claim).
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Inc., 530 U.S. 133, 143 (2000) (quoting Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S.
248, 253 (1981)).
IV
Under the McDonnell Douglas framework, Grimsley must first establish a prima facie
case of age discrimination. “To establish a prima facie case, a plaintiff need only make a
very minimal showing.” Nichols v. Loral Vought Sys. Corp., 81 F.3d 38, 41 (quoting
Thornbrough v. Columbus & Greenville R.R. Co., 760 F.2d 633, 639 (5th Cir. 1985))
(internal quotation marks and brackets omitted). A prima facie case merely raises the
inference of discrimination, because the court presumes that the employer’s acts, if otherwise
unexplained, are more likely than not based on the consideration of impermissible factors.
See Int’l Bhd. of Teamsters v. United States, 431 U.S. 324, 358 & n.44 (1977); Furnco
Constr. Corp. v. Waters, 438 U.S. 567, 577 (1978). In an age discrimination case, a plaintiff
is only required to show that “(1) he was discharged; (2) he was qualified for the position;
(3) he was within the protected class at the time of discharge; and (4) he was either i)
replaced by someone outside the protected class, ii) replaced by someone younger, or iii)
otherwise discharged because of his age.” Jackson, 602 F.3d at 378 (quoting Berquist, 500
F.3d at 349) (internal quotation marks omitted).
RRMC does not dispute that Grimsley can satisfy the first three elements. The court
therefore considers only whether Grimsley has offered sufficient evidence to satisfy the
fourth element.
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In his summary judgment response, Grimsley does not present sufficient evidence to
create a fact issue on this element. Instead, he “objects” to RRMC’s assertion that he cannot
satisfy the fourth element because, in response to an interrogatory requesting that RRMC
identify all persons who assumed any of the responsibilities previously performed by
Grimsley, RRMC responded:
Unknown, but Defendant will supplement this response should
such data become available through a third party. Any persons
who assumed Plaintiffs’ job duties subsequent to his termination
are no longer employed by Defendant because it no longer
operates the hospital where Plaintiff worked.
P. Br. 15 (quoting P. App. 50). Grimsley also alleges, that when Human Resources Manager
Pinkerton was asked during her deposition who took over Grimsley’s job responsibilities
after his termination, she responded that “she did not know.” Id. at 16. Grimsley argues
these discovery responses establish that “[t]he Defendant kno[ws] the Plaintiff was replaced
by someone younger,” and that he has therefore established a prima facie case of age
discrimination. Id. The court disagrees.
RRMC’s discovery responses do not establish that Grimsley was replaced by
someone outside the protected class or that he was replaced by someone within the protected
class, but younger. And Grimsley has not introduced any other evidence that would support
such a finding. If Grimsley was dissatisfied with RRMC’s discovery responses, he could
have filed a motion to compel or sought this information through discovery from other
persons or in other forms.
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Grimsley does not argue in support of his prima facie case that he meets this element
on the basis of a showing that he was “otherwise discharged because of his age.” Nor can
the court discern any evidence in the record that would support such a showing. Moreover,
for the reasons discussed below, see infra § V, Grimsley has failed to introduce evidence that
he was otherwise discharged because of his age. Because Grimsley has not established a
prima facie case of age discrimination, RRMC is entitled to summary judgment on this
claim.
V
Even assuming, arguendo, that Grimsley has established a prima facie case of age
discrimination, RRMC would nonetheless be entitled to summary judgment because
Grimsley has failed to introduce evidence that would enable a reasonable jury to find that
RRMC’s legitimate, nondiscriminatory reason for his termination is pretextual.
A
Once a plaintiff establishes a prima facie case, the burden shifts to the employer to
articulate a legitimate, nondiscriminatory reason for terminating the plaintiff. See Moss v.
BMC Software, Inc., 610 F.3d 917, 922 (5th Cir. 2010). RRMC maintains that it terminated
Grimsley’s employment because he committed several errors and omissions while
performing his duties as a pharmacy technician. Specifically, it posits that Grimsley was
disciplined on two separate occasions for medication stocking errors and omissions,
receiving a verbal warning on February 1, 2008 and a written warning on February 14, 2008.
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And he was terminated on February 25, 2008 after he again failed to stock medications
accurately and promptly. Grimsley does not dispute that RRMC has satisfied its burden at
this stage of the McDonnell Douglas burden shifting test.
B
1
Under the McDonnell Douglas burden-shifting framework, once the employer has
produced evidence of a legitimate, nondiscriminatory reason for the adverse employment
action, the plaintiff must demonstrate that the defendant’s proffered “legitimate business
reason” is not its true reason for the adverse employment action but is instead pretext for
discrimination. See Reeves, 530 U.S. at 143. A plaintiff can establish pretext “by showing
that the employer’s proffered explanation is false or ‘unworthy of credence.’” Jackson, 602
F.3d at 378-79 (quoting Laxton v. Gap Inc., 333 F.3d 572, 578 (5th Cir. 2003) (some internal
quotation marks omitted)). Although, as a general matter, “a plaintiff’s prima facie case,
combined with sufficient evidence to find that the employer’s asserted justification is false,
may permit the trier of fact to conclude that the employer unlawfully discriminated,” there
are “instances where, although the plaintiff has established a prima facie case and set forth
sufficient evidence to reject the defendant’s explanation, no rational factfinder could
conclude that the action was discriminatory.” Reeves, 530 U.S. at 148. “The ultimate
question is whether the employer intentionally discriminated, and proof that ‘the employer’s
proffered reason is unpersuasive, or even obviously contrived, does not necessarily establish
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that the plaintiff’s proffered reason . . . is correct.” Id. at 146-47 (quoting St. Mary’s Honor
Ctr. v. Hicks, 509 U.S. 502, 524 (1993)). In other words, “‘[i]t is not enough . . . to
disbelieve the employer; the factfinder must believe the plaintiff’s explanation of intentional
discrimination.’” Id. at 147 (quoting St. Mary’s Honor Ctr., 509 U.S. at 519). The plaintiff
might create “only a weak issue of fact as to whether the employer’s reason was untrue and
there [may be] abundant and uncontroverted independent evidence that no discrimination
had occurred.” Id. at 148. Thus it is “‘possible for a plaintiff’s evidence to permit a tenuous
inference of pretext and yet be insufficient to support a reasonable inference of
discrimination.’” West, 330 F.3d at 385 (quoting Crawford v. Formosa Plastics Corp., La.,
234 F.3d 899, 903 (5th Cir. 2000)); see also Rosenblatt v. 7-Eleven, Inc., 2007 WL 2187252,
at *12 (N.D. Tex. July 27, 2007) (Fitzwater, J.) (granting summary judgment where,
assuming fact issue on question of pretext existed, fact issue was “weak,” and there was no
evidence that employee’s age was ever considered in employer’s decision to terminate his
employment).
Moreover, where an employer offers more than one nondiscriminatory reason for
taking the adverse employment action that the plaintiff challenges, “‘[t]he plaintiff must put
forward evidence rebutting each of the nondiscriminatory reasons the employer articulates.’”
Kretchmer v. Eveden, Inc., 2009 WL 854719, at *7 (N.D. Tex. Mar. 31, 2009) (Fitzwater,
C.J.) (quoting Wallace v. Methodist Hosp. Sys., 271 F.3d 212, 220 (5th Cir. 2001)), aff’d,
374 Fed. Appx. 493 (5th Cir. 2010); see also Jackson v. Watkins, 2009 WL 1437824, at *8
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(N.D. Tex. May 21, 2009) (Fitzwater, C.J.), aff’d, 619 F.3d 463 (5th Cir. 2010). As the Fifth
Circuit has explained in the analogous context of a Title VII discrimination claim:
Because our precedent is clear that a plaintiff asserting a
Title VII claim must rebut each of the defendant’s
nondiscriminatory reasons in order to survive summary
judgment, [plaintiff’s] contention that he is required to rebut
only some of [defendant’s] reasons is without merit. We have
long recognized that to satisfy step three of the McDonnell
Douglas framework, a plaintiff must put forward evidence
rebutting each of the nondiscriminatory reasons the employer
articulates. Where a plaintiff falls short of his burden of
presenting evidence rebutting each of the legitimate
nondiscriminatory reasons produced by the employer, summary
judgment is appropriate. Accordingly, [plaintiff] cannot
withstand summary judgment without providing sufficient
evidence to rebut each of [defendant’s] nondiscriminatory
reasons.
Jackson v. Watkins, 619 F.3d 463, 467 (5th Cir. 2010) (per curiam) (citations, quotation
marks, and original brackets omitted). “The evidence offered to counter the employer’s
proffered reasons must be substantial.” Kretchmer, 2009 WL 854719, at *7 (citing Wallace,
271 F.3d at 220).
2
RRMC alleges there were at least five separate instances in which Grimsley made a
pharmacy restocking error or omission, the combination of which resulted in his termination:
(1) failure to properly refill the Pyxis machine at some point prior to February 1, 2008; (2)
failure to properly refill the Pyxis machine on February 1, 2008; (3) failure to stock the Pyxis
machines with the Add-Vantage piggyback antibiotics for outpatient surgery, the emergency
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room, and the operating room on February 13 and 14, 2008; (4) commission of “several
errors” when refilling the emergency crash cart medication trays on February 10, 2008 and
February 14, 2008; and (5) incorrectly filling two anesthesia boxes prior to delivery to the
operating room on or around February 25, 2008. Grimsley contests some, but not all, of
these alleged workplace mistakes.
Grimsley questions the bases on which Moss relied to conclude it was Grimsley and
not another pharmacy technician who failed to properly fill the Pyxis machine on February
1, 2008. He posits that the “night shift pharmacy technicians were also responsible for
filling the [P]yxis machines of which [Lawson] complained.” P. Br. 7. He also challenges
the source of information regarding the alleged failure to stock the Add-Vantage piggyback
in the Pyxis machine and failing to properly fill the crash cart medication trays on February
10, 2008 and February 14, 2008. He points to deposition testimony in which Moss could not
recall who from outpatient surgery or from the emergency room had called and complained
or which technician had informed him of Grimsley’s errors. Regarding the February 10,
2008 alleged performance deficiency, Grimsley argues that he did not work on that date, and
he notes that Moss was unsure whether Moss may have made an error on the date or whether
Grimsley actually made the documented mistake. He points to Moss’s deposition testimony
in which he conceded that he had never showed Grimsley any evidence to confirm the
allegations in the written warnings and had never printed or even looked at the Pyxis
transaction reports to confirm that Grimsley was at fault. Grimsley alleges that, concerning
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the February 14, 2008 incident, another pharmacy technician, Syja Cherian, was responsible
for stocking the ER on that date and that he “was written up for a responsibility that was not
his according to the Defendant’s policy.” Id. at 9.
Grimsley does not challenge RRMC’s allegation that he failed to properly refill the
Pyxis machine on one occasion prior to February 1, 2008 or that he incorrectly filled two
anaesthesia boxes prior to their delivery to the operating room on or around February 25,
2008. Nor does he argue these two instances were not reasons on which RRMC relied in
terminating his employment.5 To the extent he has created a fact issue on whether he failed
to accurately and promptly stock medications on the other documented occasions, it is only
a weak fact issue. For example, he does not allege or adduce evidence that he did not make
the documented mistakes; rather, he merely challenges the evidence on which Moss relied
in determining that Grimsley, as opposed to another pharmacy technician, was responsible.
It is not this court’s place to decide whether Moss’s procedures for determining who
was at fault for the various medication stocking errors were reasonable or even whether
Moss was mistaken in concluding that it was Grimsley who committed the various errors.
5
The February 25, 2008 Disciplinary Action Notice states: “This is the third time
[Grimsley] has been counseled for failing to stock medications promptly and accurately . . . .
According to the job description, a pharmacy technician must refill floorstock promptly and
accurately. [Grimsley]’s failure to perform his duties as assigned have jeopardized patient
care and safety. Therefore, [Grimsley] is to be immediately relieved from his duties and
terminated.” D. App. 26.
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The ADEA was not intended to be a vehicle for judicial
second-guessing of employment decisions, nor was it intended
to transform the courts into personnel managers. The ADEA
cannot protect older employees from erroneous or even arbitrary
personnel decisions, but only from decisions which are
unlawfully motivated.
Rosenblatt, 2007 WL 2187252, at *11 (quoting Bienkowski v. Am. Airlines, Inc., 851 F.2d
1503, 1507-08 (5th Cir. 1988)) (internal quotation marks omitted). Here, there is simply no
evidence that Moss’s decision to terminate Grimsley’s employment was impermissibly based
on Grimsley’s age.
Grimsley argues that Moss hired three younger pharmacy technicians soon after he
was hired as Pharmacy Director. Even if true,6 the mere fact that Moss hired younger
employees would not enable a reasonable jury to find that Moss terminated Grimsley’s
employment based on his age. Nor would Grimsley’s conclusory and unsubstantiated
statement that “[t]he younger newly hired employees were not fired or disciplined for
committing mistakes while [Grimsley] was terminated,” and that “[he] was treated less
favorably than [his] younger counter-parts . . . who had violated policy by failing to fill
prescriptions in the Cath Lab, but were not fired” permit such a conclusion. P. App. 3.
6
In his affidavit, Grimsley states: “Soon after Moss was hired he began firing the older
pharmacy technicians and hiring younger employees. Mr. Moss hired Chrystal Hill, age
twenty six (26), Marithel Ramirez, age twenty eight (28) and Eden Yohannes, age twenty
three (23)[.]” P. App. 2. RRMC maintains that this statement is false because Chrystal Hill
and Eden Yohannes were both hired by Horton in September 2007 and June 2007,
respectively. RRMC also states that Moss hired Ancy Valiyaparampil, who was 51 years old
at the time. Because the evidence on which RRMC relies is included in an appendix to
RRMC’s reply brief, and RRMC did not obtain leave of court to file the appendix, the court
has not considered this evidence in deciding RRMC’s motion.
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Grimsley provides no details regarding which younger employees were treated more
favorably, what mistakes they made for which they were not fired (i.e., the severity of the
errors), or whether they were otherwise similarly situated to Grimsley in terms of years of
service, employment record, or the number of times they had allegedly committed mistakes
and the number and types of warnings received. Grimsley’s unsubstantiated and subjective
beliefs and conclusory allegations and opinions of fact are not competent summary judgment
evidence. See, e.g., Morris v. Covan World Wide Moving, Inc., 144 F.3d 377, 380 (5th Cir.
1998); Forsyth v. Barr, 19 F.3d 1527, 1533 (5th Cir. 1994).
Grimsley also alleges that “Moss told [him] that he was too slow in completing his
daily tasks as compared to the younger technicians who had been recently hired.” P. Br. 17.
In support, he cites to the February 1, 2008 disciplinary action notice, in which Moss stated
“[Grimsley] has also been slow to complete his daily tasks as compared to other technicians
and new hires.” D. App. 20. He also cites his own affidavit, in which he alleges that, soon
after Moss was hired as Pharmacy Director, he began hiring younger employees, including
Chrystal Hill (age 26), Marithel Ramirez (age 28) and Eden Yohannes (age 23). He cites
no other evidence in support of his allegation that Moss told him he was too slow “as
compared to the younger technicians who had been recently hired.” P. Br. 17 (emphasis
added). Viewing the evidence in a light most favorable to Grimsley as the summary
judgment nonmovant and drawing all reasonable inferences in his favor, a reasonable jury
could not find, based solely on Moss’s statement that Grimsley was too slow “compared to
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other technicians and new hires,” D. App. 20, and Grimsley’s allegation that Moss hired
three new employees, ages 23, 26, and 28, that Moss told Grimsley that he was too slow “as
compared to the younger technicians who had been recently hired,” P. Br. 17. Moss
nowhere mentions “younger” employees in the February 1, 2008 disciplinary notice and,
even assuming Moss did hire three younger employees after he became Pharmacy Director,
there is no evidence that he did not also hire older employees or that the “other technicians”
to whom Moss compared Grimsley were not the same age or older than Grimsley. In short,
Grimsley’s characterization of the statement in Moss’s February 1, 2008 disciplinary action
notice as comparing Grimsley to “younger” employees is not supported by the evidence and
thus does not establish that RRMC’s legitimate, nondiscriminatory reason for Grimsley’s
termination is pretextual.
Nor do Grimsley’s other arguments create a fact issue regarding pretext. Grimsley
argues that he was terminated for alleged poor performance despite positive performance
evaluations, but he fails to cite to any evidence of a positive performance evaluation after
his promotion in May 2007. He posits that RRMC failed to document the claimed
performance problems because Moss failed to preserve any of the Pyxis reports that would
contain evidence of the alleged errors. But he cites no authority that would require an
employer to preserve underlying evidence of workplace errors when disciplinary actions are
recorded and preserved through, for example, the disciplinary action notice procedures
RRMC employed. Grimsley argues that RRMC provided different explanations at different
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times for its employment decision. He cites to a “character reference” that Moss wrote for
Grimsley in which Moss stated that, “[a]s a technician, [Grimsley] has always been willing
to offer assistance by covering additional shifts and working extended hours when asked.
He is a capable and dedicated employee who will take on any project that is assigned.” P.
App. 31. There is nothing in this statement vouching for Grimsley’s dedication and character
that is inconsistent with RRMC’s termination of Grimsley’s employment for repeated
mistakes and omissions in connection with stocking medications.
In sum, the most Grimsley has done is create a weak fact issue as to whether RRMC’s
proffered reason for his termination—his repeated failures to accurately stock
medications—was the real reason for his termination. As explained above, “[t]he ultimate
question is whether the employer intentionally discriminated, and proof that ‘the employer’s
proffered reason is unpersuasive, or even obviously contrived, does not necessarily establish
that the plaintiff’s proffered reason is . . . correct.’” Reeves, 530 U.S. at 146-47 (quoting St.
Mary’s Honor Ctr., 509 U.S. at 524) (ellipsis in original). Aside from the fact that Grimsley
was 41 years old when he was terminated, he presents no evidence that age, as opposed to
some other reason, was the but-for cause of his termination.
Because a reasonable jury could not find that Grimsley’s age was the but-for cause
of his termination, RRMC is entitled to summary judgment dismissing his ADEA claim.
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VI
The court next turns to Grimsley’s retaliation claim.
A
The ADEA makes it unlawful for an employer to retaliate against an individual
because he has opposed any practice made an unlawful employment practice by the relevant
statutes. 29 U.S.C. § 623(d). As with discrimination claims, when the employee offers no
direct evidence that the employer retaliated against him, retaliation claims under the ADEA
are analyzed under the McDonnell Douglas burden-shifting analysis. See, e.g., Akop v.
Goody Goody Liquor, Inc., 2006 WL 119146, at *10 (N.D. Tex. Jan. 17, 2006) (Fitzwater,
J.) (citations omitted). At the first stage, Grimsley must establish a prima facie case of
retaliation by demonstrating that (1) he engaged in a protected activity, (2) an adverse
employment action occurred, and (3) a causal link existed between the protected activity and
the adverse employment action. Id. (citing Walker v. Norris Cylinder Co., 2005 WL
2278080, at *9 (N.D. Tex. Sept. 19, 2005) (Fitzwater, J.). The burden then shifts to RRMC
to articulate a legitimate, nondiscriminatory reason for the allegedly retaliatory action taken.
RRMC’s burden is one of production, not of proof. If RRMC meets its production burden,
Grimsley must offer sufficient evidence to create a genuine issue of material fact “either (1)
that [RRMC’s] reason is not true, but is instead a pretext for discrimination (pretext
alternative); or (2) that [RRMC’s] reason, while true, is only one of the reasons for its
conduct, and another ‘motivating factor’ is the plaintiff’s protected characteristic
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(mixed-motive[s] alternative).” Rachid v. Jack In The Box, Inc., 376 F.3d 305, 312 (5th Cir.
2004) (third alteration in original) (some internal quotation marks and citations omitted).
B
RRMC argues Grimsley has failed to establish a prima facie case of retaliation
because he has conceded that he did not complain of age related discrimination until after
he was terminated. RRMC thus argues that Grimsley has failed to establish the first or third
element of a prima facie case for ADEA retaliation. Grimsley responds that he engaged in
protected activity on or around February 14, 2008, when he asked Moss why the younger
newly-hired pharmacy technicians were not being disciplined. He alleges that he also
informed Moss on numerous occasions that the younger newly
hired employees were incorrectly or failing to fill the pyxis
machines and crash carts. Grimsley further asked Moss why he
thought he was too slow in completing his daily tasks as
compared to the younger technicians who had been recently
hired. Within a week of raising these concerns to Moss the
decision to terminate Grimsley occurred.
P. Br. 19. The arguments in Grimsley’s brief are not supported, however, by the evidence
he cites. Grimsley’s affidavit provides the following:
On February 25, 2008 I was issued a second written warning
allegedly for failing to fill anesthesia prescriptions. After being
issued the second written warning I told Moss that the mistakes
had not been committed by me and that the newly hired younger
employees had committed the mistakes. I further informed
Moss of a number of other mistakes the newly hired employees
had made and I was subsequently terminated by Moss at that
time.
P. App. 3 (emphasis added). In this paragraph, Grimsley expressly states that it was not until
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after he was issued the second written warning that he told Moss that the mistakes had been
committed by the newly hired younger employees. The written warning itself states that
“[Grimsley] is to be immediately relieved from his duties and terminated.” D. App. 26.
Thus even if the court were to assume that Grimsley’s statement to Moss that the younger
employees were the ones who had committed the mistakes would constitute a protected
activity under the ADEA, a reasonable jury could not find from the summary judgment
evidence that the decision to terminate Grimsley was made after Grimsley informed Moss
of this fact. Because Grimsley has produced no evidence that would enable a reasonable
jury to find that a causal link existed between his comment that the younger employees were
the ones making the mistakes and the decision to terminate his employment in connection
with the issuance of the second written warning, Grimsley’s retaliation claim must fail.
Even if the court assumes arguendo that Grimsley can establish a prima facie case of
retaliation, this claim nonetheless fails for the additional reason that Grimsley has produced
no evidence that would enable a reasonable jury to find that the reasons given for his
termination—his repeated failure to stock medications promptly and accurately—are
pretextual.7 The various mistakes and omissions documented in the February 1, 2008
disciplinary action notice, the February 14, 2008 first written warning, and the February 25,
2008 second written warning were all recorded before the allegedly protected activity
occurred on February 25, 2008. And there is simply no basis, other than the alleged order
7
Grimsley does not argue the mixed-motives approach in his response brief.
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of events—i.e., that Grimsley complained about the younger pharmacy technicians making
the mistakes before he was terminated—that would permit a reasonable jury to find that the
decision to terminate Grimsley’s employment was based on Grimsley’s accusing the younger
employees of making the mistakes for which he was blamed.
Accordingly, RRMC is entitled to summary judgment dismissing Grimsley’s ADEA
retaliation claim.
*
*
*
For the foregoing reasons, the court grants RRMC’s July 20, 2012 motion for
summary judgment and dismisses Grimsley’s lawsuit with prejudice by judgment filed
today.
SO ORDERED.
October 3, 2012.
_________________________________
SIDNEY A. FITZWATER
CHIEF JUDGE
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