Perry v. St. Joseph Regional, 10th Cir. (2004)
Perry v. St. Joseph Regional, 10th Cir. (2004)
AUG 26 2004
PATRICK FISHER
Clerk
SHERRYL PERRY,
Plaintiff-Appellant,
v.
ST. JOSEPH REGIONAL MEDICAL
CENTER, an Oklahoma Corporation,
a/k/a Via Christi Oklahoma Regional
Medical Center Ponca City, Inc.;
VIA CHRISTI HEALTH SYSTEMS,
INC., a Kansas Corporation,
No. 03-6120
(D.C. No. 02-CV-542-C)
(W.D. Okla.)
Defendants-Appellees.
ORDER AND JUDGMENT
BRISCOE ,
After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties request for a decision on the briefs without oral
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument.
Sherryl Perry appeals from the grant of judgment as a matter of law in
favor of defendants on her wrongful termination claim brought under the Age
Discrimination in Employment Act (ADEA).
621-34. At the close of Ms. Perrys case, defendants moved for judgment as
a matter of law and the court took the motion under advisement. Following the
presentation of all the evidence in the case, the district court granted the
defendants motion for judgment as a matter of law.
Our jurisdiction arises under 28 U.S.C. 1291. Because we conclude that
Ms. Perry failed to present sufficient evidence from which a jury could rationally
conclude that she was terminated because of her age, we affirm.
I. Legal standards
We review de novo the grant or denial of a judgment as a
matter of law, and apply the same legal standard as the district court
and construe the evidence and inferences in the light most favorable
to the nonmoving party without weighing the evidence, passing on
the credibility of witnesses, or substituting our judgment for that of
the jury. Judgment as a matter of law is appropriate only where the
evidence and all inferences to be drawn therefrom are so clear that
reasonable minds could not differ on the conclusion. Unless the
proof is all one way or so overwhelmingly preponderant in favor of
the movant as to permit no other rational conclusion, judgment as a
matter of law is improper.
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Mason v.
Okla. Turnpike Auth. , 115 F.3d 1442, 1450 (10th Cir. 1997) (quotations omitted).
Under the ADEA, [i]t shall be unlawful for an employer . . . to
discharge
any individual or otherwise discriminate against any individual with respect to his
compensation, terms, conditions, or privileges of employment, because of such
individuals age. 29 U.S.C. 623(a)(1).
To prevail on an ADEA claim a plaintiff must establish that
age was a determining factor in the employers challenged decision.
The plaintiff need not prove that age was the
sole reason for the
employers acts, but must show that age made the difference in the
employers decision. Under our precedents, an ADEA plaintiff may
proceed by either of two general methods to carry the burden of
making her or his case. A party may attempt to meet his burden
directly, by presenting direct or circumstantial evidence that age was
a determining factor in his discharge. Or, more typically, a party
may rely on the proof scheme for a prima facie case established in
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973),
and Texas Department of Community Affairs v. Burdine,
450 U.S.
248, 252-56 (1981).
Greene , 98 F.3d at 557-58 (quotations and citations omitted). Here, lacking
evidence directly related to the forbidden animus of age as a determining factor
in her discharge, Ms. Perry relied on the inferential proof scheme set forth in
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Ms. Perry made a case that should have been presented to the jury.
II. Relevant facts
After a change of management at the hospital where she had been employed
as the Nursing Director of the Emergency Department for twenty-six years,
Ms. Perry was counseled by her new supervisor, Ms. Watson, that Ms. Perry
needed to improve her job performance in several areas in order to meet federal
emergency room (ER) standards, or be terminated.
at 113-16. Defendants established that the hospital had received notice from the
state about the ERs deficiencies. The hospitals board of directors had given
the [new] CEO marching orders to fix up the ER because it was one of the
worst parts of [the] hospital.
of enthusiasm for her job, her giving of priority to volunteer efforts instead of to
her job, her failure to sufficiently support emergency room nursing staff, her
failure to be visible in the ER and to check on the evening ER staff, her failure to
follow through with critical ER issues, and her failure to fix ER problems after
having earlier been released from other duties in order to concentrate on the ER
department. Aplt. App., Vol. II at 537;
Id. Vol. II
Ms. Watson believed that Ms. Perry was not being truthful in her response.
She determined that Ms. Perry continued to demonstrate a lack of responsibility
for dealing with issues and a failure to make her job a priority. Ms. Watson was
further of the opinion that Ms. Perry might be burn[ed] out and that she was
not going to be able to change her old ways.
199, 217. Mr. Hufnagel, the vice president of human resources, also testified that
Ms. Perry was not productive enough to keep up with the pace required by the
new CEOs demanding and complicated new plans for growth and productivity
and efficiency and excellence.
III. Analysis
Ms. Perry relies on five pieces of evidence to support her claim that age
was a determining factor that made the difference in her termination and that
the issue should have gone to the jury: (1) her replacement by a younger person;
(2) her favorable performance evaluations before the change in management;
(3) Mr. Hufnagels testimony that she was terminated because she was
not productive enough to keep up with the pace of the new management;
(4) Ms. Watsons testimony that Ms. Perry would not be able to change her old
ways and that Ms. Perry had burnout; and (5) Ms. Young-Shiflets
testimony
that the hospitals termination decision was best for the hospital because it was
time to have new blood and to have someone in that possibly could motivate the
staff to do a better job, and I dont believe that the work that needed to be done
was getting done.
Id. at 454. Ms. Perry argues that, based on this evidence, the
jury could have inferred that her termination was pretextual and concluded that
her age made the difference in the hospitals decision to replace her.
After hearing all the evidence, the district court disagreed. As a
preliminary matter, the court held that Ms. Haub was insignificantly younger
and, therefore, the evidence of a seven-year age difference between her and
Ms. Perry was not sufficient to raise an inference that the reason for
1
could not infer pretext from the other testimony cited above.
Id. at 507.
, 517 U.S.
(10th Cir. 2000) (holding that, because plaintiffs replacement was only two
years his junior--an obviously insignificant difference--the necessary inference of
discrimination was precluded, and he failed to establish his prima facie case).
Ms. Perry argues that the parties principal dispute centers around whether Perry
was replaced by Peters, 17 years her junior, or Haub, who is seven years younger
than Perry, and argues that the court impermissibly weighed the evidence in
holding, as a matter of law, that Haub, and not Peters, replaced Perry. Aplt. Br.
at 7-8. Ms. Perry also argues that a seven-year age gap is sufficient to support an
inference of discrimination for a prima facie case. We need not decide these
issues, however, because of the procedural and evidentiary posture of the case at
the time of the district courts decision.
857 F.2d 1397, 1401 (10th Cir. 1988) (addressing only whether there was
sufficient evidence to establish that reasons for termination were pretextual).
When a defendant presents evidence of a valid, nondiscriminatory reason
for termination in a case in which the plaintiff is relying on a
Corp. proof scheme to establish discrimination,
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McDonnell Douglas
improvement. She could not rebut the fact that defendants sought to replace her
with a fifty-four-year-old nurse before they knew of her discrimination complaint.
And none of the testimony that Ms. Perry points to regarding her lack of
productivity and inability to keep the pace of the new CEOs demands, her
inability to change her ways, her apparent burnout, or the need for new blood
to motivate ER employees raises an inference that she was terminated because of
her age or that her termination was pretextual. An employee can be
nonproductive, burned out, and unwilling or unable to change her ways at any
age, just as an older employee can remain productive, enthusiastic, and able to
change. Cf. Lindsey v. Baxter Healthcare Corp.
1992) (stating that [n]o weight can be attached to . . . good old boys, [because]
any competent user of the English (or rather the American) language knows that
to be a good old boy one need not be old, or for that matter, good).
Evidence that Ms. Perry had never received a written negative evaluation
before new management took over is relevant to the issue of substandard
performance. But [p]retext is not established by virtue of the fact that an
employee has received some favorable comments in some categories or has,
in the past, received some good evaluations.
Solis-Cohen , 983 F.2d 509, 528 (3d Cir. 1992). And that evidence alone, in light
of the overwhelming evidence supporting defendants assertion that age was not
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created, at most,
only a weak issue of fact as to whether the employers reason was untrue and
there was abundant and uncontroverted independent evidence that no
discrimination had occurred. Reeves , 530 U.S. at 148. Although judgment as
a matter of law should remain atypical in age discrimination cases,
(Ginsburg, J., concurring), after a careful review of the record, we conclude that
the district court did not err in granting judgment as a matter of law to
defendants.
The judgment of the district court is AFFIRMED.
Entered for the Court
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