Opinion
Civ. No. JFM-98-1687.
September 8, 1999.
MEMORANDUM
Plaintiffs Lawrence Backus, Carol Martin, and Patrick Birmingham have brought this age discrimination action against their former employer, defendant St. Joseph Medical Center, Inc. ("the Medical Center" or "the hospital"). The Medical Center has filed a motion for summary judgment. For the reasons stated below, the motion will be granted.
I.
The Medical Center is a non-profit hospital in Towson, Maryland. In 1994, the Medical Center hired a consultant to assist in identifying potential cost-cutting initiatives. The consultant recommended that the Medical Center consolidate some functions and eliminate a number of management positions in order to increase efficiency and cut management expenses.
The Medical Center formed a "Core Team," consisting of high level executives at the hospital, to determine where management reductions could be made. In the end, the Core Team eliminated fourteen positions. Six of those positions were eliminated by not filling vacancies; the remaining eight were eliminated through terminations.
Plaintiff Carol Martin, age sixty, was the Supervisor of Main Hospital Registration, one of four supervisory positions reporting to Carolyn Sturla, Manager of Registration. The Core Team eliminated Martin's position because it concluded that Sturla could absorb Martin's responsibilities and because both Martin and Sturla worked during the day in the main hospital admitting area, while the other supervisors worked in other areas of the hospital or during the night. Sturla was three years and ten months younger than Martin. Thereafter, Martin was denied the opportunity to apply for a non-management position in the unit she once supervised.
Plaintiff Patrick Birmingham, age fifty-two, was the Medical Center's Director of Pharmacy. The Core Team decided to combine the director-level administrative functions of Pharmacy and Materials Management under a new position of Director of Pharmacy and Materials Management, and to run both departments on a day-to-day basis through a Manager of Pharmacy and a Manager of Materials Management. The Core Team determined that neither Birmingham, nor the then Director of Materials Management, Martin Rock, were qualified for the consolidated position.
The Core Team decided that Pharmacy Department Assistant Director, Raymond Morris, who was effectively functioning as what would become the Manager of Pharmacy, would be named Manager of Pharmacy. A few months after the restructuring was completed, Morris applied for Director of Pharmacy and Materials Management and was given the job. Morris was forty-six-years-old, less than six years younger than Birmingham.
Morris died in March 1995 whereupon the Medical Center tried, but failed, to find a Director of Pharmacy and Materials Management replacement. The hospital restructured the Pharmacy and Materials Management units back to their original form. Although the hospital advertised the opening of Pharmacy Director, Birmingham did not apply for the position.
Plaintiff Lawrence Backus, age forty-nine, was Director of Radiology. The Core Team decided to consolidate the director-level functions of that position with the positions of Director of Laboratory and Director of Nuclear Medicine into a new position of Director of Diagnostic Imaging Laboratory. The day-to-day administration of the three units were to be run by three lower-level managers. The Core Team chose the former Director of Laboratory, Kenneth Walsch, for the new Director position. The Core Team determined that the then Director of Nuclear Medicine, fifty-eight-year-old Sue Bright, would function well as that department's manager. The Core Team determined, however, that Backus would not adapt to a demotion to a manager-level position well. Sue Shaner, age thirty-nine, was offered and accepted the Manager of Radiology position.
II.
The Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq., prohibits employers from taking adverse employment action against a covered employee because of the employee's age. To establish a prima facie case of age discrimination, a plaintiff must show that: (1) he is a member of the protected age group (over forty-years-old); (2) he suffered an adverse job action; (3) he was performing at a level that met his employer's legitimate expectations; and (4) he was replaced by someone of comparable qualifications who was substantially younger than the plaintiff.See O'Connor v. Consolidated Coin Caterers Corp., 517 U.S. 308, 312-13 (1996) (modifying fourth element); Burns v. AAF-McQuay, Inc., 96 F.3d 728, 731 n. 1 (4th Cir. 1996).
Under the three stage scheme of proof originally set forth inMcDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973), establishment of the prima facie case creates a presumption that the employer unlawfully discriminated against the employee and shifts the burden to the defendant to produce a legitimate, nondiscriminatory explanation for the adverse employment action which, if believed by the trier of fact, would support a finding that unlawful discrimination was not the cause of the employment action. See St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 507 (1993). If the defendant meets this burden of production, the presumption created by the prima facie case drops from the case and the plaintiff is left with the burden of proving that he was the victim of intentional discrimination. Id. at 510-11. If the plaintiff fails to produce evidence showing both that the defendant's proffered reason was pretextual and that the evidence creates a reasonable inference that age was actually the determinative factor in the adverse employment decision, the discrimination claim must fail. Id.
A.
Plaintiff Backus was replaced as Director of Radiology by Sue Shaner, who took over the new position of Radiology Manager. Although the Medical Center contends that Backus's position was eliminated, the evidence, viewed in the light most favorable to plaintiffs, is that Shaner's duties as Manager were nearly identical to those Backus performed as Director. Shaner, 39-years-old, was ten years younger than 49-year-old Backus. A ten year age difference is substantial under O'Connor. See Hartley v. Wisconsin Bell, 124 F.3d 887, 892-93 (7th Cir. 1997) (holding ten-year age difference presumptively substantial underO'Connor).
Defendant's proffered legitimate nondiscriminatory reason for choosing Shaner over Backus for the Manager position is that the Core Team determined that Backus did not have the interpersonal skills necessary to function well in a lower-level management position in a department he once directed. Backus vigorously disputes the Core Team's conclusion that he would not handle a demotion well. An employee's self-perception, however, is irrelevant in ADEA cases; it is the true motive of the employer which is material. See Douglas v. PHH Fleet America Corp., 832 F. Supp. 1002, 1010 (D. Md. 1993) (citing Smith v. Flax, 618 F.2d 1062, 1067 (4th Cir. 1980)).
While Backus may in fact possess the requisite interpersonal skills for the Manager of Radiology position, he has failed to produce evidence that the Medical Center's proffered reason for terminating him is pretext. In fact, the evidence before the Court tends to undercut Backus's claim. 58-year-old Sue Bright, the former Director of Nuclear Medicine, was offered a demotion to be that department's manager.
Defendant is entitled to summary judgment on Birmingham's termination claim as well because he was not replaced by someone substantially younger. Birmingham, age fifty-two, was replaced by Raymond Morris, age forty-six. An age difference of six years, absent direct evidence of discriminatory animus, is insubstantial as a matter of law under O'Connor. See Hartley, 124 F.3d at 893 (six year age difference presumptively insubstantial gap); cf.Cramer v. Intelidata Techs. Corp., No. 97-2775, 1998 WL 911735, at *3 (4th Cir. Dec. 31, 1998) (five year age difference insubstantial).
B.
Birmingham's and Backus's ADEA claims based on the Medical Center's failure to rehire them fail as a matter of law. After Morris died, the Medical Center tried but failed to find a replacement Director of Pharmacy and Materials Management and decided to reestablish the separate positions of Director of Pharmacy and Director of Materials Management. The Medical Center used recruiters and newspapers to announce the position. Birmingham failed to apply. Similarly, Backus's claim that the Medical Center failed to hire him as a radiologic technologist fails for the same reason. Although he was aware of two openings, Backus applied for neither position. The Medical Center cannot be liable for discriminating against Birmingham and Backus by not hiring them when both failed to apply for the respective jobs.
Both Birmingham and Backus attempt to invoke the "futile gesture doctrine" to excuse their failure to apply for the respective positions. See Pinchback v. Armistead Homes Corp., 907 F.2d 1447, 1451 (4th Cir. 1990). Under that doctrine, a plaintiff is not barred from recovery in an employment discrimination case for failing to apply for the employment in question where the plaintiff "can demonstrate that he would have applied but for accurate knowledge of an employer's discrimination and that he would have been discriminatorily rejected had he actually applied." Id. The burden of proving the elements of the futile gesture doctrine rests with the plaintiff. See Brown v. McLean, 159 F.3d 898, 903 (4th Cir. 1998). For the same reasons their termination claims fail, Birmingham and Backus have failed to satisfy their burden of proving the futility of applying for the positions about which they allege discriminatory failure to hire.
C.
Martin's discrimination claim is that she was not permitted to apply for available lower-level non-management positions in her department after her position was eliminated. Assuming that Martin has established a prima facie case of age discrimination, she has failed to rebut the Medical Center's proffered legitimate, nondiscriminatory reason for its employment action. The Medical Center has indicated that Martin was refused the opportunity because it did not want Martin to assume a lower staff position in the same unit in which she had been a supervisor. Such a situation naturally blurs lines of authority. Martin has offered evidence of other employees who were permitted to step down from supervisor positions into line positions, but none of the employees to whom she refers moved to line positions in the units they formerly supervised. Thus, Martin has failed to rebut the Medical Center's preferred legitimate, nondiscriminatory reason for taking adverse employment action against her.
A separate order entering summary judgment in favor of the Medical Center is being entered herewith.
ORDER
For the reasons stated in the accompanying memorandum, it is on this 8th day of September, 1999,
ORDERED that:
1. Defendant's motion for summary judgment is granted; and
2. Judgment is entered in favor of defendant against plaintiffs.