Court Dismisses Grumpy Hospital Clerk’s Claim of Age Discrimination

On March 12, 2018, a Virginia federal court dismissed a claim of age discrimination brought by a 54 year old woman who had worked for Norton Community Hospital as an admissions clerk for nearly 23 years.  In Moore v. Mountain States Health Alliance, et. al., No. 2:16CV00014 (W.D. Va. 2018), Judge James Jones granted summary judgment to the employer, reasoning that the undisputed facts showed that the plaintiff could not prove that she was meeting her employer’s expectations, nor could she show that the complaints about her performance were pretextual reasons for her termination.

According to Judge Jones’ opinion, the plaintiff, Kimberly Moore, was hired in 1991.   The record showed that her career at Norton Community Hospital was marred by  a laundry list of performance problems, including:

  • written warnings because of an unprofessional attitude in 2006 and 2007;
  • a refusal to use the hospital’s email system;
  • an “unprofessional attitude with staff and management,” including threatening co-workers about scheduling issues, “consistent crying,” and “yelling over job duties;” and
  • a 2013 suspension because of a patient complaint.

The events that led to Moore’s termination arose in late May, 2014, when a patient complained that Moore was “rude, obnoxious and just a “B*****.”  Shortly thereafter, a contractor reported hearing Moore say “bulls**t” within earshot  of patients and visitors.  On the same day, it was reported that Moore failed to report a broken scanner, even though all admissions clerks had been informed that they were required to report malfunctioning equipment.

On June 6, 2014, the hospital fired Moore.  Moore was initially replaced by a 60 year old, though that person soon moved into a different role, and a 28 year old was hired for Moore’s position.

Moore proceeded to file suit under the Age Discrimination in Employment Act (“ADEA”), alleging that she was fired because of her age.  Judge Jones rejected Moore’s claims, noting that “the documented history of her disciplinary problems overcomes her own perceptions of her conduct.”  The Court also noted that Moore was not replaced by a younger employee, and that it was undisputed that a patient had complained about her attitude and a contractor had complained about her use of profanity within earshot of patients and visitors.  For these reasons, there was no evidence of pretext, and summary judgment was granted to the hospital.

The Moore decision is also noteworthy because the Court addressed a tactic often used by parties trying to defeat motions for summary judgment in discrimination cases.  In support of her opposition to the hospital’s motion for summary judgment, Moore filed an affidavit which “include[d] numerous statements that directly contradict her earlier interrogatory answers and deposition testimony.”  For example, in her deposition, Moore testified that she could not recall any specific negative remarks about her age; in her affidavit, Moore claimed her supervisor made numerous ageist remarks, including a claim that she was “too old to know how a mother feels.”  Judge Jones granted the hospital’s motion to strike the affidavit, holding that “[a]t 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.”





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