Ortega v. Ogden Clinic

Filing 24

MEMORANDUM DECISION and Ordergranting 19 Motion for Summary Judgment. See Order for details. Signed by Judge Clark Waddoups on 12/1/14. (jmr) (Additional attachment(s) added on 12/1/2014: # 1 Correct Order) (jmr).

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH, NORTHERN DIVISION

CATHERINE L. ORTEGA,
Plaintiff,

MEMORANDUM DECISION AND
ORDER GRANTING DEFENDANTS’
MOTION FOR SUMMARY JUDGMENT

v.
OGDEN CLINIC PROFESSIONAL
CORPORATION

Case No. 1:13-cv-00066-CW
Judge Clark Waddoups

Defendants.
Before the court is Defendants’ Motion for Summary Judgment (Dkt. No. 19). The court
heard oral argument on the motion on November 6, 2014, taking the matter under advisement.
For the reasons discussed below, the court GRANTS Defendant’s Motion (Dkt. No. 19) and
dismisses Plaintiff’s Complaint (Dkt. No. 2) in its entirety.
BACKGROUND
Plaintiff Catherine Ortega is suing Defendant Ogden Clinic P.C. for age and gender
discrimination for her termination in 2011. Ortega is a licensed physician assistant and continued
to meet all required certifications to maintain her license. Ortega entered into an employment
agreement with Ogden Clinic in late 2004, which allowed Ogden to terminate Ortega without
cause upon ninety days written notice. Ortega was hired by and worked under the supervision of
Dr. Mindy Boehm throughout her entire employment. Dr. Boehm is a woman and older than
Ortega.
Ortega worked at the Canyon View location of Ogden Clinic. In June 2009, Ogden Clinic
hired Dustin Havey as a physician assistant, although Havey worked at a different location than

Ortega. Havey had shadowed Dr. Boehm while he was in training to become a physician
assistant. Dr. Boehm expressed that she thought that Havey was a “nice young man” and that she
hoped he would be successful in his career. (Dkt. No. 19-2, at 71.) The time at which Dr. Boehm
made this statement is not clear from the record.
Ortega’s primary job was to see patients. Ortega worked Mondays through Thursdays. In
January of 2010, Dr. Boehm received a report from Clinical Services Manager Ken Whipple
indicating that her income had declined by $55,000 from the prior year, despite her patient visits
having increased by 359. Whipple told Dr. Boehm that the primary reason for the decrease was
that Ortega had 489 fewer patient visits than she had had in 2009. Since Dr. Boehm received a
percentage of the revenue received from Ortega’s patient visits, the decline affected Dr. Boehm’s
income. Whipple encouraged Dr. Boehm to have a physician assistant work on Fridays to make
up for the decrease. (Dkt. No. 19-4 ¶¶ 4-10.) In response, Dr. Boehm hired Havey to work for
her on Fridays beginning in April 2010. He continued working at a different location the other
four days of the week. Dr. Boehm testified that she asked Ortega if she would be willing to work
Fridays, but she declined. (Dkt. No. 19-4 ¶ 10.) Ortega denies being asked to work Fridays, but
acknowledges that Dr. Boehm allowed her to “bump” Havey to work the Friday shift when she
wanted to do so, which happened about a dozen times. (Dkt. No. 19-2, at 71-72.)
In February 2010, Whipple and Dr. Boehm met with Ortega to discuss her job
performance. They told Ortega that her production was declining and Dr. Boehm believed
patients were not returning to the clinic because of Ortega. They gave Ortega specific
recommendations on how to improve. (Dkt. Nos. 19-4, ¶ 9; 19-1, at 28; 19-2, at 41-42.) In 2010,
Ogden Clinic retained a third-party health care consulting company to conduct a patient survey.
Ortega performed poorly on those surveys and, when compared to Havey, was worse on every

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measure. (Dkt. No. 19-6; 19-7.) In March 2011, the Ogden Clinic gave Ortega 90-day notice that
she was being terminated. It is undisputed that Dr. Boehm made the decision to terminate
Ortega. Dr. Boehm and the Ogden Clinic state that the reasons for her termination were Dr.
Boehm’s concerns about Ortega’s interactions with patients and the overall declining trend in her
production. Following Ortega’s termination, Havey transferred to work full-time as an assistant
to Dr. Boehm.
Ortega has pleaded causes of action against Ogden Clinic for age and gender
discrimination. Ogden Clinic seeks summary judgment on both claims, asserting that Ortega
cannot establish a prima facie case for either claim, that it has offered nondiscriminatory reasons
for the termination, and that Ortega has failed to sustain her burden of offering sufficient
evidence that the reasons are a pretext.
ANALYSIS
I.

Legal Standard
Summary Judgment is appropriate “if the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the movant is entitled to summary judgment as a
matter of law.” FED. R. CIV. P. 56(c); See also Celotex v. Corp v. Catrett, 477 U.S. 317, 322
(1986). The moving party bears the initial burden of showing the absence of a genuine issue of
material fact. See Celotex, 477 U.S. at 323. The burden then shifts to the nonmoving party to set
forth specific facts demonstrating a genuine factual issue for trial. See Matsushita Elec. Indus.
Co. V. Zenith Radio Corp., 475 U.S. 574, 587 (1986); FED. R. CIV. P. 56(e).
All justifiable inferences must be viewed in the light most favorable to the nonmoving
party. See Matsushita, 475 U.S. at 587. The nonmoving party, however, may not rest upon the

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mere allegations or denials of his or her pleadings, but must produce specific facts, by affidavit
or other evidentiary materials provided by Rule 56(e), showing there is a genuine issue for trial.
See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986). The court need only resolve
factual issues of controversy in favor of the non-moving party where the facts specifically
averred by that party contradict facts specifically averred by the movant. See Lujan v. Nat’l
Wildlife Fed’n, 497 U.S. 871, 888 (1990); See also Anheuser-Busch, Inc. v. Natural Beverage
Distribs., 69 F.3d 337, 345 (9th Cir. 1995) (stating that conclusory or speculative testimony is
insufficient to raise a genuine issue of fact to defeat summary judgment).
Summary judgment shall be entered “against a party who fails to make a showing
sufficient to establish the existence of an element essential to that party’s case, and on which that
party will bear the burden of proof at trial.” Celotex, 477 U.S. at 322. Summary judgment shall
not be granted if a reasonable jury could return a verdict for the nonmoving party. See Anderson,
477 U.S. at 248. However, “[i]f the evidence is merely colorable, or is not significantly
probative, summary judgment may be granted.” Id. (internal citations omitted).
II.

ADEA Age Discrimination Claim
An age discrimination claim under the ADEA can be proven through either direct

evidence of the employer’s discriminatory intent or by presenting circumstantial evidence
creating an inference of a discriminatory motive. Danville v. Reg’l Lab Corp., 292 F.3d 1246,
1249 (10th Cir. 2002).
A. Direct Evidence
Direct evidence is evidence, which if believed, proves the existence of a fact at issue
without inference or presumption. Shorter v. ICG Holdings, Inc., 188 F.3d 1204, 1207 (10th Cir.
1999). A plaintiff may rely on age related statements, if the plaintiff can “show that [the

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statements] were made by a decision maker, and that there was a nexus between the
discriminatory statements and the decision to terminate.” McKnight v. Kimberly Clark Corp.,
149 F.3d 1125, 1129 (10th Cir. 1998). However, “if the content and context of a statement allow
it to be plausibly interpreted in two different ways – one discriminatory and the other benign –
the statement does not qualify as direct evidence. Riggs v. AirTrain Airways, Inc., 497 F.3d 1108,
1117 (10th Cir. 2007). See Stone v. Autoliv ASP, Inc., 210 F.3d 1132, 1140 (10th Cir. 2000)
(holding that age-related comments about plaintiff can support inference of age discrimination
but isolated, ambiguous comments may be too abstract).
The only “direct evidence” Ortega offers to support a claim of age discrimination is that
that Dr. Boehm referred to Havey as a “nice young man” who she wanted to succeed. The
statement fails to qualify as direct evidence. Although the statement was made by Dr. Boehm,
who made the decision to terminate Ortega, it can be interpreted in several ways. Ortega argues
that the court should interpret the statement as evidence of intent to discriminate based on age.
Another plausible, and frankly more likely, interpretation is that the statement was simply an
expression that Havey was a pleasant person and Dr. Boehm liked him and wished him success.
As such the statement must be viewed as benign. Moreover, without evidence of when the
statement was made and the context in which it was said, it is impossible to reasonably infer that
there was any connection between the statement and the decision to terminate. The statement,
without more, is insufficient to support a jury verdict that Dr. Boehm made the decision to
terminate Ortega with discriminatory intent. It is an isolated, ambiguous comment with multiple
reasonable interpretations.

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B. Circumstantial Evidence
If the plaintiff makes a claim for age discrimination under the ADEA using
circumstantial evidence, the plaintiff must satisfy a three step burden shifting analysis.
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802–04 (1973). First, the plaintiff must prove
a prima facie case of prohibited employment action. Id. at 802. If the employee makes a prima
facie showing, the burden then shifts to the employer to state a legitimate, non-discriminatory
reason for its action. Id. The burden then shifts back to the plaintiff to show that the stated reason
was merely a pretext for discrimination. Id. at 804.
1. Prima Facie Case
“The critical prima facie inquiry in all cases is whether the plaintiff has demonstrated that
the adverse employment action occurred under circumstances which give rise to an inference of
unlawful discrimination.” Barlow v. C.R. England, Inc., 703 F.3d 497, 505 (10th Cir. 2012).
“[T]he articulation of a plaintiff’s prima facie case may well vary, depending on the context of
the claim and the nature of the adverse employment action alleged.” Poltke v White, 405 F.3d
1092, 1101 (10th Cir. 2005). However, “there must be at least a logical connection between each
element of the prima facie case and the illegal discrimination” O’Connor v. Consol. Coin
Caterers Corp., 517 U.S. 308, 311 (1996). The purpose of these elements is to establish “an
initial inference of unlawful discrimination warranting a presumption of liability in plaintiff’s
favor.” Adamson v. Multi Cmty. Diversified Servs., 514 F.3d 1136, 1146 (10th Cir. 2008). To
prove a prima facie case under the ADEA for age discrimination based on job termination, the
plaintiff is required to bring forth evidence “to prove that [s]he (1) was forty years of age or
older; (2) performed satisfactory work; (3) was terminated; and (4) was replaced by someone
younger.” Id.

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It is undisputed that Ortega was forty years of age or older, that she was terminated and
was replaced by a younger person. Ogden Clinic does, however, dispute that Ortega performed
satisfactory work. The Clinic argues that it is undisputed that Ortega’s production was declining
year-to-year, that her patient retention rate was 32% and that its customer reviews indicated that
she had not been interacting well with patients. The Clinic asserts that in light of these facts,
Ortega has failed to offer sufficient evidence to prove a prima facie case.
Ortega does not offer evidence to dispute these facts, but offers additional evidence that
even with the decline in the number of patients seen; she still had the highest patient visit
average of all the physician assistants that worked for Ogden Clinic. Ortega also notes that she
increased the time of her patient visits from 10 minutes to 15 minutes in duration to have better
interactions with her patients. Additionally, Ortega notes that at the time of her termination, she
had no patient complaints in her file. Ortega argues that this evidence is sufficient to satisfy her
burden, which is slight, that her performance was satisfactory. Because Ortega is the nonmoving
party, the court must draw the inferences in the light most favorable to her at the summary
judgment stage. Thus, the court finds that on summary judgment, Ortega has offered evidence
from which a jury could infer that her performance was satisfactory. Ortega has articulated a
satisfactory prima facie case.
2. Non-Discriminatory Reason
Once Ortega makes a prima facie showing, the burden shifts to the Ogden Clinic “to
articulate some legitimate, nondiscriminatory reason” for its decision to terminate. McDonnell
Douglas 411 U.S. at 802. The Tenth Circuit has noted that for a reason to be non-discriminatory,
it must at least be based on objective criteria. Cortez v. Wal-Mart Stores, Inc. 460 F.3d 1268,
1273–74 (10th Cir. 2006).

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The Clinic asserts that the reason for terminating Ortega was because the number of her
patient visits had declined substantially, her patient retention rate was 32%, and Dr. Boehm
believed that the patients were not returning because of Ortega. Ortega does not dispute these
facts, but argues they are not the honest reasons for her termination. She further argues that
these reasons are not objective reasons. The decline in the number of patient visits, however, is
not subjective, and Ortega has not argued that the number of patient visits was incorrect.
Additionally, Ortega had a downward trend in patient visits, whereas most of the other assistants
had a significant upward trend. Further, in her deposition, Ortega acknowledged that the reason
stated for her termination was the patient retention rate, the lower patient visits, and her patient
interactions leading to the low retention rate. The lack of patient satisfaction was supported by
third party surveys, not just Dr. Boehm’s impressions. Finally, the decline in revenue to Dr.
Boehm was objective, articulated in dollars and cents, not just Dr. Boehm’s impression, and the
facts supported that the decline was attributable to Ortega’s declining patient visits, not to Dr.
Boehm’s own performance, whose patient visits had increased. All of these reasons had been
brought to Ortega’s attention more than a year before Dr. Boehm made the decision to terminate
her. None of the reasons given for her termination are related to her age. Thus, Ogden Clinic
stated sufficient non-discriminatory reasons for the termination.
3. Pretext
Once the employer articulates a non-discriminatory reason, the burden shifts back to the
plaintiff to identify evidence “that could support a reasonable jury’s concluding that the
employer’s proffered rationale is mere pretext for discrimination.” Roberts v. IBM Corp., 733
F.3d 1306, 1309 (10th Cir. 2013). “To establish pretext under the ADEA, [a plaintiff] must show

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there is enough inconsistency or implausibility in [the] employer’s stated explanation for the
firing that a reasonable trier of fact could find it unworthy of belief.” Id.
To suggest pretext based on criticisms of job performance, the plaintiff must “advance
evidence that [the employer’s] changed evaluation of his performance, whether wise or mistaken,
wasn’t honestly arrived at.” Id. “But changes in an employer’s estimation of its employee’s job
performance, without more, cannot establish pretext as a matter of law. After all, the quality of
the employee’s job performance is itself capable of change and an employer isn’t prohibited
from acting on honestly held beliefs about those changes.” Id. See Billet v. CIGNA Corp., 940
F.2d 812, 826 (3d Cir. 1991) (“Prior good evaluations cannot establish that later unsatisfactory
evaluations are pretextual. To hold otherwise would be to hold that things never change, a
proposition clearly without basis in reality.”) The court’s role is “to prevent intentional
discriminatory . . . practices, not to act as a ‘super personnel department,’ second guessing
employers’ honestly held (even if erroneous) business judgments.” Young v. Dillon Cos., 468
F.3d 1243, 1250 (10th Cir. 2006).
In an attempt to show pretext, Ortega first argues that it is evident that the Ogden Clinic’s
explanations were not honest by the fact that Dr. Boehm had had a sudden change of opinion
about Ortega’s job performance. Ortega had worked a number of years for the Clinic without
complaint and had been a top performer. She also claims pretext is evident by the fact that other
individuals in the Clinic told her they were shocked by her termination because she had no
patient complaints against her. Ortega ignores, however, that she had been warned about her job
performance in February of 2010 and had been given an entire year to change her behavior. After
the year had passed, Ortega’s patients visits were still significantly below her historic average,

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and Dr. Boehm had received preliminary results from the subsequent patient survey indicating
dissatisfaction with Ortega’s patient interactions.
Ortega also claims that the reasons given by the Ogden Clinic are implausible
explanations for the termination. First, Ortega claims that the patient survey was a post-hoc
rationalization for the termination. The patient survey, however, merely substantiated Dr.
Boehm’s belief that patients were not being retained by the practice, a belief which was
supported by Ortega’s 32% patient retention rate. Ortega further argues that patient visits were
declining across the practice, but that after she had been made aware of her declining numbers,
the next year her numbers actually increased an average of 29 patients per month. Ortega’s saw
334 patients per month in 2009, 308 in 2010, but then saw 337 in 2011.Ortega further argues that
she was not the only physician assistant who had a down year. Physician Assistant Ryan had 249
patient visits per month in 2009, which decreased to 233 in 2010, and then increased again in
2011 to 273. Additionally, Ortega argues that even though her numbers were down, she was still
the highest, or second highest performing physician assistant and that it would be implausible for
an employer who was trying to increase business to terminate one of its top performing
employees. The court’s role, however, is not to second guess an employer’s business judgment,
even if it is erroneous. The court’s role is only to decide whether the stated reasons are not
worthy of belief. The court finds that Ortega has failed to come forward with sufficient evidence
for a jury to find that Ogden Clinic’s stated reasons are unbelievable. On those same facts, a
different employer may have made a different decision, but that does not support a finding that
the reasons were dishonest and the real reason for the decision was Ortega’s age. Ortega has
failed to meet her burden of proving the reasons pretextual. Therefore, summary judgment is

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granted in favor of Defendants and Ortega’s age discrimination claim is dismissed with
prejudice.
III.

Gender Discrimination
Similar to an age discrimination claim, a plaintiff can prove that her employer

discriminated against her based on gender by providing either direct evidence of the employer’s
discriminatory intent or by presenting circumstantial evidence creating an inference of a
discriminatory motive. Danville, 292 F.3d at 1249. In this case, the only claimed “direct”
evidence Ortega offers that the decision to terminate her employment was based on her gender is
Dr. Boehm’s statement that Havey was a “nice young man.” The same analysis applies for
proving gender discrimination based on direct evidence as discussed above for age
discrimination and the claim fails for the same reasons.
A. Circumstantial Evidence
To determine whether circumstantial evidence supports a gender discrimination claim,
the court applies the same three step burden shifting analysis found in McDonnell Douglas. 411
U.S. at 802–04. The sole difference in the McDonnell Douglas analysis between age and gender
discrimination claims is at the first step. To establish a prima facie case based on gender
discrimination, the plaintiff must show “that: (1) [s]he belongs to a protected class; (2) [s]he was
qualified for [her] job; (3) despite [her] qualifications, [s]he was discharged; and (4) the job was
not eliminated after [her] discharge.” Kendrick v. Penske Transp. Servs., 220 F.3d 1220, 1229
(10th Cir. 2000).
Under this formulation, drawing all inferences most favorably to Ortega, the court
concludes Ortega has established a prima facie case. Ortega belongs to a protected class. Ortega

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is qualified for her job. She was a physician assistant and received all the necessary certifications
to maintain her position. Ortega was discharged and her job was not eliminated.
The rest of the burden shifting analysis is identical to that previously discussed for age
Ortega’s age discrimination claim. The reasons given by Dr. Boehm for deciding to terminate
Ortega were objective and allowed no inference that the real reason was because Ortega was a
woman. To suggest otherwise would be to ignore that Dr. Boehm herself is a woman. The
evidence Ortega proffered is not sufficient to support a finding by a jury that Ortega’s gender
played any role in the decision. Therefore, for the reasons stated previously, the court grants
summary judgment in favor of the Defendants and Ortega’s age discrimination claim is
dismissed with prejudice.
CONCLUSION
The court GRANTS Defendants’ Motion for Summary Judgment (Dkt. No. 19) for the
reasons discussed above and dismisses Plaintiff’s Complaint with prejudice (Dkt. No. 2) in its
entirety. This case is closed.
SO ORDERED this 1st day of December 2014.
BY THE COURT:

____________________________________
Clark Waddoups
United States District Judge

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