Moore v. Mountain States Health Alliance et al
OPINION and ORDER denying 61 Motion to Strike; granting 57 Motion to Strike; and granting 29 Motion for Summary Judgment. Signed by Judge James P. Jones on 3/12/18. (ejs)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA
BIG STONE GAP DIVISION
KIMBERLY S. MOORE,
MOUNTAIN STATES HEALTH
ALLIANCE, ET AL.,
Case No. 2:16CV00014
OPINION AND ORDER
By: James P. Jones
United States District Judge
Timothy W. McAfee, The McAfee Law Firm, Big Stone Gap, Virginia, for
Plaintiff; Kimberly W. Daniel and Jonathan M. Sumrell, Hancock, Daniel &
Johnson, P.C., Glen Allen, Virginia, for Defendants.
The plaintiff claims that she was terminated from her job as a hospital
admissions clerk because of her age in violation of the Age Discrimination in
Employment Act of 1967 (“ADEA”). Following discovery, the defendants have
jointly moved for summary judgment in their favor. In addition, they have filed a
motion to strike a declaration of the plaintiff filed in opposition to summary
judgment on the ground that it is inconsistent with her discovery deposition and
interrogatory answers. I will grant the motion to strike and because I find that the
facts show that the defendants are entitled to judgment as a matter of law, I will
grant them summary judgment. 1
The plaintiff’s Complaint can be liberally construed to assert three separate
causes of action under the ADEA, namely (1) unlawful termination; (2) disparate
The following facts are taken from the summary judgment record presented
in the light most favorable to the plaintiff.
The plaintiff, Kimberly S. Moore, worked as an admissions clerk for Norton
Community Hospital (“Hospital”) since 1991. Her employment was terminated on
June 6, 2014. At the time of her termination, she was fifty-four years old and had
been employed by the Hospital for nearly twenty-three years.
Moore was covered by the terms of a collective bargaining agreement
(“CBA”) between the Hospital and a labor union. At some point, the Hospital
became affiliated with Mountain States Health Alliance, which thereafter operated
the Hospital pursuant to a management agreement. 2
One of Moore’s primary responsibilities as an admissions clerk was to
interact with and register patients in a timely manner. All admissions clerks had
the same essential job duties: register patients quickly, accurately and efficiently,
and present the Hospital in a positive light while interacting with the public. They
were also required to report any malfunctioning equipment.
treatment during her employment; and (3) a hostile work environment. At oral argument
on the present motion, plaintiff’s counsel disclaimed any ADEA cause of action except
the one for her termination.
Both the Hospital and Mountain States Health Alliance are defendants to this
action. For the purposes of the present motions, the parties make no distinction between
the two. For convenience, I will refer to the defendants together as the Hospital.
Over the years, Moore had been criticized by her supervisors for having an
unprofessional attitude, and received written warnings for such conduct in 2006
From 2011 through November 2014, Timothy Cheek, the Hospital’s Patient
Access Manager, was Moore’s manager, and Teresa Stough assisted in supervising
Moore. During this period and throughout the remainder of her employment,
Moore worked day shifts almost exclusively in the main Hospital Admissions
Department. 3 Moore felt that other admissions department team members were
given better shifts than her.
The computer system used by the admissions department changed in 2012.
All admissions clerks, including Moore, were provided training on the new system.
Moore also received individual training.
Admissions clerks could request
additional training as needed. Despite this training, Moore could not and did not
use her Hospital email account. Important notices were often sent via email.
The Hospital disciplined Moore on multiple occasions in 2013 and 2014 for
what the Hospital considered to be failures to behave professionally and
appropriately. For example, it was reported by Ms. Stough on July 25, 2013, that
Moore exhibited “unprofessional attitude with staff and management. Multiple
Moore was temporarily assigned to the Hospital’s outpatient surgery center in
2012 or 2013. This transfer was based on the Hospital’s business needs and to ensure
adequate coverage based on patient volumes.
complaints by pts and team member of unprofessionalism. Threatening other
employees in regards to takeing [sic] shifts. Consistent crying and yelling over job
duties that have been given to the team member.” Mem. Supp. Mot. Summ. J. Ex.
D, at 52, ECF No. 30-4. Moore personally rated herself as needing improvement
in various aspects of her 2013 final performance evaluation.
A December 19, 2013, Team Member Counseling Report 4 advised that the
next disciplinary infraction against Moore would result in her suspension. A
month later, another Counseling Report was issued against Moore based on a
patient complaint and she was suspended for three days. This decision was upheld
by the Hospital’s Chief Executive Officer, Mark Leonard, although he reduced her
suspension to only one day. As part of her suspension, Moore was required to
participate in the Hospital’s Employee Assistance Program (“EAP”). 5 At this time,
Leonard specifically cautioned Moore that further misconduct would result in her
termination. Moore testified in her deposition that she had no reason at that time to
believe that CEO Leonard would act unfairly towards her or treat her worse than a
younger person. Mem. Supp. Mot. Summ. J., Ex. D, Moore Dep. 106, ECF No.
A Team Member Counseling Report (“Counseling Report”) is what the Hospital
calls a written disciplinary warning or action. Once issued, it is signed by the employee
involved in order to memorialize its receipt.
Moore previously had been required to attend EAP sessions in October 2013.
A mandatory staff meeting was held in April 2014 during which all staff
members were allowed to voice their concerns about Moore’s behavior at work.
Moore believes that she was unfairly subjected to criticism from her fellow
employees during this meeting. She testified in her deposition that “I didn’t do
half of the things that they said I did.” Mem. Supp. Mot. Summ. J., Ex. D, Moore
Dep. 139, ECF No. 30-4.
Three subsequent incidents formed the basis for Moore’s ultimate
termination. On May 29, 2014, Moore registered a patient who had previously
complained about her attitude back in 2012. This patient again complained about
Moore, stating that Moore was “rude, obnoxious, and just a B****.” Mem. Supp.
Mot. Summ. J., Ex. C, Attach. 5, ECF No. 30-3. Shortly thereafter, on June 4,
2014, a Hospital contractor reported to Cheek that she had overheard Moore
clearly saying “bullshit” in a hallway within earshot of patients and visitors,
although Moore and another employee claimed that she had only said “bull.” Id.
Finally, on the same day, Cheek was informed that Moore had failed to report a
broken scanner over the weekend. All admissions clerks, including Moore, had
been informed in writing that they were required to report malfunctioning
equipment. Instead of reporting the equipment as required, Moore simply placed
the faulty scanner where she thought it would be noticed and planned to report it
when she returned for her next shift. As a result of these three incidents, Cheek
issued a Counseling Report for a suspension of Moore with intent to terminate her,
and on June 6, 2014, Leonard made the final decision to terminate Moore
following a hearing.
At this time, vacant collective bargaining unit positions at the Hospital were
filled according to the union CBA. The CBA required that vacant positions be
filled by the most senior qualified employee who applied for and accepted the
Following Moore’s termination, her vacant position was awarded according
to the CBA. Initially it was awarded to Marla Dorton, the most senior employee
who applied for and accepted the position. Ms. Dorton was sixty years old at that
time. However, shortly after her trial period, Ms. Dorton decided that she did not
wish to continue in the position. The next most senior employee who applied for
and accepted the position was Courtney Mullins. Ms. Mullins was twenty-eight
years old. She ultimately stayed in the position.
Moore filed a grievance pursuant to the CBA, but her union declined to
proceed to arbitration of the grievance and thereafter Moore filed a charge of
discrimination with the Equal Employment Opportunity Commission. This lawsuit
followed, in which Moore claimed that she had been wrongfully terminated based
upon her age and “because she had exercised her rights to file a grievance in
accordance with her [union] contract.” Compl. ¶ 29, ECF No. 1. On motion of the
defendants, I dismissed the claim of retaliation on the ground that Moore had failed
to state sufficient facts supporting that claim. Op. & Order, Oct. 4, 2016, ECF No.
II. MOTION TO STRIKE.
In addition to their Motion for Summary Judgment, the defendants have
jointly moved to strike a declaration submitted by the plaintiff on the ground that it
impermissibly contradicts her sworn deposition testimony.
The plaintiff has
responded by filing a supplemental declaration in which she attempts to explain the
inconsistencies, stating that she only remembered certain events after reviewing
emails and other discovery materials produced by the defendants.
A party opposing a motion for summary judgment may raise issues of fact
through affidavits or declarations. Fed. R. Civ. P. 56(c)(1)(A). Such a declaration
“must be made on personal knowledge.” Fed. R. Civ. P. 56(c)(4). The Fourth
Circuit has “consistently held that a party cannot create a triable issue in opposition
to summary judgment simply by contradicting his deposition testimony with a
subsequent affidavit.” Hernandez v. Trawler Miss Vertie Mae, Inc., 187 F.3d 432,
438 (4th Cir. 1999).
“At the summary judgment stage, if an affidavit is
inconsistent with the affiant’s prior deposition testimony, courts may disregard the
affidavit pursuant to the sham-affidavit rule.” Kinser v. United Methodist Agency
for the Retarded – W. N.C., Inc., 613 F. App’x 209, 210 (4th Cir. 2015)
(unpublished). The rule applies only where there is a “‘bona fide inconsistency’”
between the witness’s deposition testimony and the statements in her affidavit or
declaration. Id. at 210-11 (quoting Spriggs v. Diamond Auto Glass, 242 F.3d 179,
185 n.7 (4th Cir. 2001)).
“A genuine issue of material fact is not created where
the only issue of fact is to determine which of the two conflicting versions of the
plaintiff’s testimony is correct.” Barwick v. Celotex Corp., 736 F.2d 946, 960 (4th
I find that the declaration in question should be stricken. The plaintiff’s
declaration in opposition to summary judgment includes numerous statements that
directly contradict her earlier interrogatory answers and deposition testimony. No
satisfactory explanation has been given for these contradictions, and accordingly, it
is proper to grant the defendants’ motion under the sham-affidavit rule.
The defendants set forth in their briefs supporting their motion the numerous
inconsistencies and contradictions submitted by the plaintiff. I will relate only
some of the most egregious.
During her deposition, conducted on June 22, 2017, the plaintiff testified
that her supervisor Cheek had “harassed me all the time,” but the only example she
could think of was that “several times” Cheek had said to her,” “Be careful today,
you are walking on a thin line.” Rebuttal Mem. Supp. Defs.’ Mot. Strike, Ex. E,
Moore Dep. 153, ECF No. 60-5. Later in the deposition, she was asked “Did any
supervisor, Mr. Cheek or Ms. Stough, make a negative remark about your age that
you heard or knew of?” Id. at 160. Moore related only that Cheek and Stough
“had made remarks before that I made a lot more money than they did [and] . . . I
had better insurance. I guess, because I have been here a long time.” Id. at 161.
In comparison, in her later written declaration, the plaintiff asserted other
specific instances of age-related comments. She declared that “Cheek claimed that
[she] had mental problems and . . . needed to quit. He claimed that it was common
for women my age to have mental issues.” Pl.’s Mem. Opp’n Mot. Summ. J., Ex.
1, Moore Decl. ¶ 19, ECF No. 52-1. The plaintiff also asserted that Cheek told her
she was “too old to know how a mother feels.” Id. at ¶ 24. Additionally she
claimed that “[o]n one occasion . . . Cheek blasted [her] for not typing fast enough
. . . [and] walked off and muttered ‘old dogs new tricks,’ and laughed.” Id. at ¶ 18.
Moore also asserted that Cheek “constantly commented to [her] that Admissions
Clerks were the first face that patients would see, and that the hospital had a fresh
new image to project, and [she] did not have the face they wanted.” Id. at ¶ 21.
In addition, Moore was asked in her deposition when she had planned to
retire and she replied, “I hadn’t really thought about it. Maybe 65, 67.” Rebuttal
Mem. Supp. Defs.’ Mot. Strike, Ex. E, Moore Dep. 169, ECF No. 60-5. In her
later declaration, she asserted that “I was 10 months short of retiring.” Pl.s’ Mem.
Opp’n Defs.’ Mot. Summ. J., Ex. 1, Moore Decl. ¶ 6, ECF No. 52-1.
These efforts to revise Moore’s deposition answers to better resist summary
judgment are unavailing. Moore’s case is not complicated and more than anyone
she knew the facts on which her claim was based. While she was doubtless
unsophisticated about the litigation process, she was represented by able and
experienced counsel who certainly prepared her for her deposition. It would be
unfair to the opposing parties and destructive of my duty to secure the just, speedy
and inexpensive resolution of this case, see Fed. R. Civ. P. 1, if I did not grant the
motion to strike Moore’s declaration.
III. MOTION FOR SUMMARY JUDGMENT.
Summary judgment is appropriate 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). To raise a genuine issue of material fact
sufficient to avoid summary judgment, the evidence must be “such that a
reasonable jury could return a verdict for the nonmoving party.” Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In making this determination, “the
court is required to view the facts and draw reasonable inferences in a light most
favorable to the nonmoving party.” Shaw v. Stroud, 13 F.3d 791, 798 (4th Cir.
Rule 56 mandates the entry of summary judgment, after adequate time for
discovery and upon motion, 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 Corp. v. Catrett, 477 U.S.
317, 322 (1986). Summary judgment is not a disfavored procedural shortcut, but
an important mechanism for weeding out claims and defenses that have no factual
basis. Id. at 327. It is the affirmative obligation of the trial judge to prevent
factually unsupported claims and defenses from proceeding to trial. Drewitt v.
Pratt, 999 F.2d 774, 778-79 (4th Cir. 1993).
The ADEA prohibits an employer from discriminating “against any
individual with respect to his compensation, terms, conditions, or privileges of
employment” based on the individual’s age. 29 U.S.C. § 623(a)(1). To succeed on
her claim of discriminatory discharge, the “plaintiff must prove that age was the
‘but-for’ cause of the employer’s adverse decision.” Gross v. FBL Fin. Servs.,
Inc., 557 U.S. 167, 176 (2009).
“The ADEA plaintiff may prove age
discrimination in one of two ways: by proving a ‘prima facie case’ of age
discrimination, which establishes a rebuttable presumption that the employer
violated the ADEA; or by offering direct or circumstantial evidence of an
employer’s discriminatory animus.” Arthur v. Pet Dairy, 593 F. App’x 211, 216
(4th Cir. 2015) (unpublished).
“To establish a prima facie case, the plaintiff must show (1) he was a
member of the protected class, namely, ‘individuals who are at least 40 years of
age,’ 29 U.S.C. § 631(a); (2) he was performing his job duties to his employer’s
legitimate expectations at the time of termination; (3) he was terminated; and (4)
he was replaced by a substantially younger individual.” Id. at 216-17. The burden
then “shifts to the employer to produce a legitimate, non-discriminatory reason for
the termination.” Warch v. Ohio Cas. Ins. Co., 435 F.3d 510, 513-14 (4th Cir.
2006). If the employer meets that burden of production, the initial presumption of
discrimination disappears, and the plaintiff then bears the ultimate burden of
proving that the employer’s stated reason was pretextual and the real reason for the
termination was discrimination. Id. at 514. Regarding the second element of the
prima facie case, “whether an employee met his employer’s legitimate expectations
at the time of termination depends on the perception of the decision maker, not the
self-assessment of the plaintiff.” Jones v. Constellation Energy Projects & Servs.
Grp., Inc., 629 F. App’x 466, 469 (4th Cir. 2015) (unpublished) (internal quotation
marks, alteration, and citation omitted).
While “[d]erogatory comments about an employee’s age may be direct
evidence of age discrimination, provided they concern the employee’s age and
sufficiently demonstrate that the employer’s age-related animus affected the
employment decision at issue,” Arthur, 593 F. App’x at 218, no such comments
are present in Moore’s case. Moore testified in her deposition that while not
disciplined over it, Cheek had complained of her speed in registering patients, in
comparison with other admission clerks, but Moore admitted that she did not
usually meet the Hospital goal of registering patients within eight minutes, “I tried,
but there was a lot to do.” Mem. Supp. Mot. Summ. J., Ex. D, Moore Dep. 150,
ECF No. 30-4. In addition, as earlier related, she testified that Cheek and Stough
once told her that she made more money than they did and had better insurance
because she had been employed longer than them. Id. at 161. None of these
comments can be considered direct evidence of age discrimination.
In the absence of direct or circumstantial evidence of discriminatory
animus, I agree with the defendants that Moore cannot establish a prima facie case
of age discrimination. She has not shown that she can present evidence that she
was meeting her employer’s legitimate expectations at the time of her termination.
The documented history of her disciplinary problems overcomes her own
perceptions of her conduct. Moreover, she was not replaced by a younger person.
In fact, the Hospital had no choice of her replacement, in light of the mandatory
operation of the seniority system under the CBA.
Finally, even if she could show a prima facie case, the defendants have
shown a legitimate, nondiscriminatory reason for her termination. She was warned
by CEO Leonard — whom she absolves of any discriminatory animus — that any
further infractions would result in termination. Moore admits that thereafter the
Hospital did receive an additional complaint from a patient about her attitude and
from a coworker about her use of profanity in public, as well as admitting her
failure to report broken equipment as required. Id. at 24, 143. While Moore
disputes the patient’s complaint and her use of profanity, she has not shown that
these documented reasons for her termination are pretextual and her claim of
discrimination must fail. 6
Accordingly, the defendants’ Motion for Summary
Judgment will be granted.7
For the foregoing reasons, it is ORDERED that Plaintiff’s Motion to Strike
Defense, ECF No. 61, is DENIED, and Defendants’ Motion to Strike Plaintiff’s
Declaration, ECF No. 57, and Defendants’ Motion for Summary Judgment, ECF
No. 29, are GRANTED. A separate final judgment in favor of the defendants will
be entered forthwith.
ENTER: March 12, 2018
/s/ James P. Jones
United States District Judge
In addition, Moore admitted in her deposition that she does not believe that her
age was the “but for” reason for her termination. She contended, as she did in her
Complaint, that she was also fired in retaliation for filing of a union grievance. Rebuttal
Mem. Supp. Defs.’ Mot. Summ. J., Ex. D., Moore Dep. 118, ECF No. 56-4.
The plaintiff also filed a Motion to Strike Defense, based upon alleged discovery
violations by the defendants. The magistrate judge conducted a hearing on a related
Motion for Sanctions filed by the plaintiff, and held that there was no basis for discovery
sanctions against the defendants. Mem. Order, Feb. 28, 2018, ECF No. 76. I similarly
find that the Motion to Strike Defense should be denied.
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?