United States District Court, N.D. Alabama, Northeastern Division
K. KALLON, UNITED STATES DISTRICT JUDGE.
Bellows brings this discrimination action pursuant to the Age
Discrimination in Employment Act of 1967 (ADEA), 81 Stat.
602, as amended, 29 U.S.C. § 621, et seq., and
the Alabama Age Discrimination in Employment Act of 1997
(AADEA), Ala. Code § 25-1-20, et seq., against
her former employer, Huntsville Hospital (the Hospital). The
Hospital has now moved for summary judgment primarily arguing
that it never took an adverse employment action against
Bellows, and that, in any event, Bellows has failed to show
that it discriminated against her based on her age.
See Doc. 31. The Hospital's motion is now fully
briefed, docs. 32; 38; 41, and ripe for review. After careful
consideration of the parties' briefs, the record, and the
applicable law, the court finds that the motion is due to be
STANDARD OF REVIEW
judgment is proper “if 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). A dispute about a material fact is genuine “if
the evidence is such that a reasonable jury could return a
verdict for the nonmoving party.” Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (11th Cir. 1986).
Thus, “a party opposing a properly supported motion for
summary judgment . . . must set forth specific facts showing
that there is a genuine issue.” Id. at 256.
However, “[t]he evidence of the non-movant is to be
believed, and all justifiable inferences are to be drawn in
[her] favor.” Id. at 255. Indeed, it is
explicitly not the role of the court “to weigh
conflicting evidence or to make credibility
determinations.” Mize v. Jefferson City Bd. of
Educ., 93 F.3d 739, 742 (11th Cir. 1996); see also
Anderson, 477 U.S. at 255 (explaining
“[c]redibility determinations, the weighing of the
evidence, and the drawing of legitimate inferences from the
facts are jury functions, not those of a judge”).
conclusions and unsupported factual allegations are legally
insufficient to defeat a summary judgment motion.”
Ellis v. England, 432 F.3d 1321, 1326 (11th Cir.
2005) (citing Bald Mountain Park, Ltd. v. Oliver,
863 F.2d 1560, 1563 (11th Cir. 1989)). Nor will “a . .
. ‘scintilla of evidence in support of the nonmoving
party . . . suffice.'” Melton v. Abston,
841 F.3d 1207, 1219 (11th Cir. 2016) (quoting Young v.
City of Palm Bay, 358 F.3d 859, 860 (11th Cir. 2004)).
In short, if “the record taken as a whole could not
lead a rational trier of fact to find for the non-moving
party, there is no ‘genuine issue for trial,
'” and summary judgment is appropriate.
Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 587 (1986) (citation omitted).
Bellows, then 55 years old, was originally hired by the
Hospital in 2004 to work as a nurse in the Neuro Progressive
Care Unit. Doc. 33-1 at 10-11. Over a decade later, on
January 7, 2015, Bellows was still at the Hospital working as
a part time nurse in the Neuro Spine Neuro Surgery
Department. Docs 33-1 at 13, 25-26; 33-13 at 2; 39-1 at 2.
That day, one of Bellows' patients asked for a discharge,
informing Bellows that she had already received clearance to
leave the Hospital. Doc. 33-1 at 32. Bellows checked the
patient's progress notes which indicated, among other
things, “[h]ome possibly A.M. tomorrow v/s later
today.” Id. at 33; Doc. 33-22 at 4. Bellows
interpreted this note to mean that the patient was eligible
for a discharge that afternoon. Doc. 33-1 at 32-33,
41-43. As a result, at 1:20 p.m., Bellows
discharged the patient, writing in the notes that she had
done so pursuant to a telephone order from the treating
physician. Docs 33-22 at 3; 33-1 at 32-34.
admits that she never spoke to a doctor before discharging
this patient, and that she lacked the authority to discharge
patients on her own. Doc. 33-1 at 34, 43-44. The next day,
the patient Bellows discharged was readmitted to the hospital
after developing a fever. Id. at 34; Doc. 39-1 at 2.
After looking into the matter, the treating physician, who
was upset that Bellows failed to obtain his approval prior to
discharging the patient, raised the issue with Bellows'
direct supervisor Mark Walden. Docs. 39-1 at 2; 33-23 at 5-7,
9, 13. Walden, along with two other supervisory employees,
met with Bellows and informed her that she could either
resign or face termination as a result of her infraction.
Docs. 33-1 at 34; 33-24 at 2-3. Bellows disagreed with the
proposed discipline, and Walden completed a termination form
on her behalf. Doc. 39-1 at 2; 33-1 at 34-36.
subsequently met with the Hospital's Vice-President of
Surgical Services, Thomas Fender, to object to her discharge.
Docs. 33-1 at 37; 33-24 at 3. Fender instructed an Employee
Relations Specialist, Cynthia Traylor, to review Bellows'
discipline, and, in the interim, Traylor placed Bellows on
paid administrative leave. Docs. 33-24 at 3; 33-26 at 2.
Roughly a week after Bellows' meeting with Walden, Fender
rescinded the termination decision and offered Bellows the
option of either accepting a final warning and a lateral
transfer to a different unit, or resigning with 30 days of
paid administrative leave. Docs. 33-24 at 4; 33-25 at 2.
Bellows subsequently left voicemails for both Traylor and
Fender declining to resign and instructing the Hospital to
contact her attorneys with additional questions. Doc. 33-24
at 4-5. Based on Bellows' statement that she would not
resign, the Hospital assumed that Bellows had accepted the
transfer and sent her a letter indicating her start date and
confirming other relevant details of the new position. Doc.
33-25 at 2-3. Bellows never reported to work as scheduled, or
contacted the Hospital again. Docs. 33-24 at 6; 33-1 at
ADEA prohibits employers from firing employees who are forty
years or older because of their age.” Liebman v.
Metro. Life Ins. Co., 808 F.3d 1294, 1298 (11th Cir.
2015) (citing 29 U.S.C. § 623(a)(1)). “[A]
plaintiff bringing a disparate-treatment claim pursuant to
the ADEA must prove, by a preponderance of the evidence, that
age was the ‘but-for' cause of the challenged
adverse employment action.” Gross v. FBL Fin.
Servs., Inc., 557 U.S. 167, 180 (2009). The requisite
showing of ‘but-for' causation “can be made
through either direct or circumstantial evidence.”
Liebman, 808 F.3d at 1298. When only circumstantial
evidence of discrimination is presented, as here, the court
applies the familiar burden-shifting framework first
articulated by the Supreme Court in McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973). See Kragor v.
Takeda Pharm. Am., Inc., 702 F.3d 1304, 1308 (11th Cir.
McDonnell Douglas, a plaintiff must first establish
a prima facie case of discrimination, which ‘in effect
creates a presumption that the employer unlawfully
discriminated against the employee.'” Id.
(quoting Tex. Dep't of Cmty. Affairs v. Burdine,
450 U.S. 248, 254 (1981). To establish a prima facie case of
age discrimination, a plaintiff must show: “(1) that
she was a member of the protected group of persons [under the
ADEA] . . .; (2) that she was subject to adverse employment
action; (3) that a substantially younger person filled the
position that she sought or from which she was discharged;
and (4) that she was qualified to do the job for which she
was rejected.” Damon v. Fleming
Supermarkets of Fla., Inc., 196 F.3d 1354, 1359
(11th Cir. 1999). As relevant here, the third element may
also be satisfied by showing that the employer “treated
employees who were not members of [the] protected class more
favorably under similar circumstances.” Washington
v. United Parcel Serv., Inc., 567 Fed.Appx. 749, 751
(11th Cir. 2014) (citing Morris v. Emory Clinic,
Inc., 402 F.3d 1076, 1083 (11th Cir. 2005)).
an employee has established a prima facie case, ‘the
burden shifts to the employer to rebut the presumption of
discrimination with evidence of a legitimate,
nondiscriminatory reason for the adverse employment
action.'” Liebman, 808 F.3d at 1298
(quoting Kragor, 702 F.3d at 1308). Importantly, the
“defendant need not persuade the court that it was
actually motivated by the proffered reasons. It is sufficient
if the defendant's evidence raises a genuine issue of
fact as to whether it discriminated against the
plaintiff.” Combs v. Plantation Patterns, 106
F.3d 1519, 1528 (11th Cir. 1997) (quotation omitted). If the
employer succeeds in providing a legitimate
non-discriminatory reason for the adverse action, “the
burden shifts back to the employee to show that the
employer's reason is a pretext.” Liebman,
808 F.3d at 1298. The plaintiff can make this
showing “either directly by persuading the court that a
discriminatory reason more likely motivated the employer or
indirectly by showing that the employer's proffered
explanation is unworthy of credence.” Burdine,
450 U.S. at 256. Thus, the plaintiff must “come forward
with evidence, including the previously produced evidence
establishing the prima facie case, sufficient to permit a
reasonable factfinder to conclude that the reasons given by
the employer were not the real reasons for the adverse
employment decision.” Combs, 106 F.3d at 1528.
the Hospital challenges only the adverse action and
discriminatory treatment prongs of Bellows' prima facie
case. Additionally, the Hospital contends that even if
Bellows is able to establish a prima facie case, she cannot
show that the Hospital's neutral explanation for its
actions was pretextual. In response, Bellows claims that she
was unquestionably subject to an adverse action, termination,
and that the Hospital treated similarly situated younger
nurses who engaged in the same purported misconduct more
favorably. Bellows further argues that the