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Beshires v. University of New Mexico Hospital

United States District Court, D. New Mexico

July 15, 2019

JAMES BESHIRES, JR., Plaintiff,
v.
UNIVERSITY OF NEW MEXICO HOSPITAL, Defendant.

          PROPOSED FINDINGS AND RECOMMENDED DISPOSITION

          STEVEN C. YARBROUGH UNITED STATES MAGISTRATE JUDGE

         THIS MATTER comes before the Court on Defendant University of New Mexico Hospital's Motion For Summary Judgment, filed January 14, 2019 (Doc. 36), and Plaintiff James E. Beshires, Jr.'s Motion for Summary Judgment, filed March 11, 2019 (Doc. 56). United States District Judge Judith C. Herrera referred this matter to me on December 12, 2017, pursuant to 28 U.S.C. § 636(b)(1). Doc. 8. Consistent with that Order of Reference, the Court enters these proposed findings and recommended disposition. I recommend that the Court GRANT Defendant University of New Mexico Hospital's Motion For Summary Judgment and DENY Plaintiff James E. Beshires, Jr.'s Motion for Summary Judgment.

         BACKGROUND

         A. Procedural Background

         On October 6, 2017, Plaintiff filed the present lawsuit in state court bringing claims for age discrimination. Doc. 1-1. He alleged that the defendants unlawfully terminated his employment one month following his 60th birthday and that five other employees over 60 were terminated in his nine-person department in the past four years. Id. He asserted claims against the University of New Mexico Hospital, Mochelle Billingsley, Sheena Ferguson, and Steve McKernan. Id.[1] On November 8, 2017, those defendants removed the case to federal court, alleging that Plaintiff's complaint raises a federal cause of action under the Age Discrimination in Employment Act (“ADEA”) and that this case thus falls within this Court's original jurisdiction pursuant to 28 U.S.C. § 1331. Doc. 1. Plaintiff did not file a motion to remand or otherwise argue with this characterization of his claims.

         I held a scheduling conference on January 18, 2018 and set a due date for pretrial motions of August 16, 2018. Docs. 11 & 12. Following a status conference on June 28, 2018, I extended the deadline for pretrial motions to October 15, 2018. Docs. 22 & 24. At the request of Defendant, and without an objection from Plaintiff, I extended the pretrial motions deadline again, to January 14, 2019. Docs. 33 & 34. In the same Order, I set the discovery motions deadline for January 2, 2019. Doc. 34. On February 4-two weeks after the pretrial motions deadline had expired-Plaintiff moved for a one-month extension of “Case Management deadlines” due to the federal government shutdown. Doc. 39. Defendant opposed it. Doc. 46. I denied that motion, noting that the federal government is not a party to this case, the Court did not cease operations, and Plaintiff's motion failed to comply with Civil Local Rule 7.1(a) (requiring a motion to contain recitation of a good-faith request for concurrence). Doc. 49. Neither party asked for any more extensions to case management deadlines, including the pretrial motions deadline. Despite this, Plaintiff filed his Motion for Summary Judgment on March 11, 2019, nearly two months late. Doc. 56.

         Meanwhile, Defendant timely filed its Motion for Summary Judgment and Memorandum in Support on January 14, 2019. Docs. 36 & 37. Plaintiff filed a Response, Doc. 40, Defendant filed a Reply, Doc. 51, and with leave of Court, Plaintiff filed a Surreply, Doc. 55. Defendant responded to Plaintiff's Motion for Summary Judgment on March 25, 2019. Doc. 60. Plaintiff did not file a Reply, and the time to do so has passed. Therefore, both motions are fully briefed and ready for decision.

         B. Factual Background

         1. The Court will not deem Defendant's facts undisputed.

         Defendant argues that, because Plaintiff failed to specifically controvert its asserted undisputed material facts as this Court's local rules require, the Court should deem the facts set forth in its Motion for Summary Judgment undisputed. Doc. 51 at 2. Under Federal Rule of Civil Procedure 56(a) and Local Rule 56.1, a movant seeking summary judgment must “set out a concise statement of all of the material facts as to which the movant contends no genuine issue exists.” The response opposing summary judgment must “contain a concise statement of the material facts cited by the movant as to which the non-movant contends a genuine issue does exist.” D.N.M.LR-Civ. 56.1(b). “Each fact in dispute must be numbered, must refer with particularity to those portions of the record upon which the non-movant relies, and must state the number of the movant's fact that is disputed.” Id. Most importantly, “[a]ll material facts set forth in the Memorandum will be deemed undisputed unless specifically controverted” in this fashion. Id. Defendant correctly points out that Plaintiff did not specifically controvert its asserted undisputed material facts as the local rules require.

         Nonetheless, “[a] pro se litigant's pleadings are to be construed liberally and held to a less stringent standard than formal pleadings drafted by lawyers.” Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). This rule applies at the summary judgment stage of a case as well. Id. at 1110 n.3. “Furthermore, district courts must take care to insure that pro se litigants are provided with proper notice regarding the complex procedural issues involved in summary judgment proceedings.” Id. at 1110 (internal quotation marks and alterations omitted). A “pro se plaintiff should be advised of his right to file counter-affidavits or other responsive material and alerted to the fact that his failure to so respond might result in the entry of summary judgment against him.” Id. (internal quotation marks and alterations omitted). “In addition, pro se litigants are to be given reasonable opportunity to remedy the defects in their pleadings.” Id. at 1110 n.3. In this case, Plaintiff has filed a sworn affidavit, and he has verified his Response to Defendant's Motion for Summary Judgment, his Surreply, and his Motion for Summary Judgment. Doc. 40 at 8; Doc. 42; Doc. 55 at 11; Doc. 56 at 3. I recommend that Plaintiff not be strictly held to the Local Rule requiring him to specifically controvert Defendant's Facts in numbered paragraphs with citations to the record. Given this recommendation, I will discuss the factual background in this case with reference to Defendant's Facts as well as to any statements by Plaintiff in his affidavit or briefs disputing those facts.

         2. Defendant's statement of facts

         Plaintiff is a former employee of Defendant who worked as an RN On-Duty House Administrator. As a condition of employment, Plaintiff signed an employment contract acknowledging that he was “subject to termination without cause or non-renewal” of the contract.[2] Doc. 37 at 2 ¶¶ 1-2; Doc. 37-1 at 1. Plaintiff's supervisor and Executive Director of Clinical Services, Moschell Billingsley, decided not to renew Plaintiff's contract and hand delivered his notice of contract non-renewal during a meeting on April 29, 2016. Doc. 50-2 ¶ 5.[3] She decided not to renew Plaintiff's contract because he resisted changes she implemented, did not commit to helping execute the initiatives she implemented, and refused to adapt to how his role as an administrative supervisor was changing due to the new directives. Doc. 50-1 ¶ 8.[4] One such initiative was the transfer of low acuity patients to other hospitals so they could obtain speedier care and a hospital bed. Id. at ¶ 7. Another was to organize patient movement throughout the different hospital departments to ensure that patients were being treated in the most efficient manner. Id.

         Defendants assert Plaintiff was also terminated because Ms. Billingsley received complaints regarding Plaintiff's refusal to perform various aspects of his job during the three-month time period when Ms. Billingsley was his supervisor. Id. ¶ 9. Ms. Billingsley received a complaint that, after a multicar accident, Plaintiff did not expedite placement of child accident victims in hospital rooms as his job duties required. Id. ¶ 10. Instead, he left the children in the Emergency Room all night before they were eventually placed in rooms. Id. Ms. Billingsley received another complaint that Plaintiff refused to facilitate a patient transfer between two departments. Id. ¶ 11. The accepting department had requested that an employee sit with the transferring patient because he had orders to be on 1:1 observation for suicide risk. Id. Plaintiff refused or failed to prearrange for the necessary accompanying employee to facilitate patient movement between departments. Id. Plaintiff refused to resolve the issue in person, as required by his position, and instead told each department to deal with the issue on their own. Id.

         Ms. Billingsley received several emails from UNMH employees complaining about Plaintiff's failure to facilitate a patient transfer between two departments and failure to expedite placement of children who were victims of the accident into hospital rooms in pediatrics. Id. ¶ 12. Ms. Billingsley observed that Plaintiff had a disengaged attitude about his position at UNMH and he had a poor relationship with members of the RN Supervisory staff. Id. ¶ 13. Ms. Billingsley thus chose not to renew Plaintiff's contract due to his poor performance as a supervisor and refusal to perform basic aspects of his position. Id. ¶ 15.

         In his Complaint, Plaintiff referred to four other individuals in his group over the age of 60 who were terminated. Doc. 1-1 at 1. Defendant identifies them as G.V.S., P.N., I.S., and J.B., with full names redacted for privacy. Doc. 36 ¶ 16 & n.1. Ryan Randall, the Director of Employee & Labor Relations for UNMH, reviewed the personnel records for three of the four employees. Id. ¶¶ 16-17. He determined that G.V.S. voluntarily retired from his RN On-Duty House Administrator position effective December 20, 2012; he was not terminated or non-renewed by UNMH. Id. ¶ 18. Effective October 5, 2012, P.N. resigned from her RN On-Duty House Administrator position in lieu of discharge for misconduct. Id. ¶ 19. I.S. retired from her position of Manager RN On-Duty House Administrator (the position that manages the RN On-Duty House Administrators) after receiving notice on March 27, 2014 that her employment contract would not be renewed. Id. ¶ 20. Out of ten RN On-Duty House Administrators currently employed by UNMH, all of whom are supervised by Moschell Billingsley, one of the current incumbents is 67 years old and has worked in the same position since April 2007. Id. ¶ 21.[5]

         LEGAL STANDARD

         “The court shall grant summary judgment 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 non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In other words, a dispute is genuine “if there is sufficient evidence on each side so that a rational trier of fact could resolve the issue either way, ” and it is material “if under the substantive law it is essential to the proper disposition of the claim.” Becker v. Bateman, 709 F.3d 1019, 1022 (10th Cir. 2013) (internal quotation marks omitted). In reviewing a motion for summary judgment, the Court views the evidence and all reasonable inferences therefrom in the light most favorable to the non-moving party. S.E.C. v. Thompson, 732 F.3d 1151, 1156-57 (10th Cir. 2013) (internal quotation marks omitted). Initially, the party seeking summary judgment has the burden of showing that there is no genuine dispute as to any material fact. See Shapolia v. Los Alamos Nat'l Lab., 992 F.2d 1033, 1036 (10th Cir. 1993). Once the moving party meets its burden, the non-moving party must show that genuine issues remain for trial. Id.

         Under the ADEA, it is illegal for an employer to discharge or otherwise discriminate against any individual who is at least 40 years of age “because of such individual's age.” 29 U.S.C. §§ 623(a)(1), 631(a). The ADEA does not authorize a mixed-motive age discrimination claim; an ADEA plaintiff must show that his or her age was “the ‘reason' that the employer decided to act.” Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 176 (2009). A plaintiff must prove by a preponderance of the evidence (which may be direct or circumstantial) that his age was the “but-for” cause of the adverse action. Id. at 176-78. “The burden of persuasion does not shift to the employer to show that it would have taken the action regardless of age, even when a plaintiff has produced some evidence that age was one motivating factor in that decision.” Id. at 180. A plaintiff does not have to prove that age was the sole motivating factor or that the reasons offered by the defendant are false “if he proves that age was also a reason, and that age was the factor that made a difference.” Wilkerson v. Shinseki, 606 F.3d 1256, 1266 (10th Cir. 2010).

         An employee claiming disparate treatment under the ADEA may survive summary judgment by providing circumstantial rather than direct evidence of discrimination as set forth in McDonnell Douglas. See Jones v. Okla. City Pub. Sch., 617 F.3d 1273, 1278 (10th Cir. 2010) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973)). To make out a prima facie case of age discrimination, the plaintiff must prove: (1) he is over 40 years old; (2) he suffered an adverse employment action; and (3) the challenged action occurred under circumstances giving rise to an inference of discrimination. Bennett v. Windstream Commc'ns, Inc., 792 F.3d 1261, 1266 (10th Cir. 2015). Although McDonnell Douglas shifts the burden of production, throughout the process the burden of persuasion remains with the plaintiff to show that the defendant discriminated on an illegal basis. Jones, 617 F.3d at 1278.

         If a plaintiff establishes a prima facie case of discrimination, the burden shifts to the defendant to offer a legitimate, non-discriminatory rationale for the adverse employment action. Crowe v. ADT Sec. Servs., Inc., 649 F.3d 1189, 1194-95 (10th Cir. 2011); Wilkerson, 606 F.3d at 1266. If the defendant meets his burden, the burden of production returns to the plaintiff to show that the defendant's proffered rationale is pretextual, or that age was a determinative factor in the employment decision. See Crowe, 649 F.3d at 1195; Wilkerson, 606 F.3d at 1266. Pretext can be shown through evidence of weaknesses, implausibilities, inconsistencies, or contradictions in the employer's proffered reasons that a reasonable jury could rationally find to be unworthy of credence; through direct evidence that the proffered reason is false; through evidence that the employer acted contrary to a policy or practice when making the adverse employment decision; or through evidence that the plaintiff was treated differently from similarly-situated employees. Crowe, 649 F.3d at 1196; Kendrick v. Penske Transp. Servs., Inc., 220 F.3d 1220, 1230 (10th Cir. 2000). The court does “not ask whether the employer's reasons were wise, fair or correct; the relevant inquiry is whether the employer honestly believed its reasons and acted in good faith upon them.” Riggs v. AirTran Airways, Inc., 497 F.3d 1108, 1118-19 (10th Cir. 2007).

         Although the court must construe all facts favorably to the plaintiff, in evaluating pretext arguments, the court must consider the facts as they appeared to decision-makers. Bennett, 792 F.3d at 1268. To survive summary judgment, the plaintiff must come forward with evidence that would persuade a reasonable jury that the defendant's proffered reason was merely pretext for age discrimination. See Turner v. Public Serv. Co. of Colo., 563 F.3d 1136, 1143-44 (10th Cir. 2009). “Consequently, once a plaintiff presents evidence sufficient to create a genuine factual dispute regarding the veracity of a defendant's nondiscriminatory reason, we presume the jury could infer that the employer acted for a discriminatory reason and must deny summary judgment.” Jones, 617 F.3d at 1280 (internal quotation marks omitted).

         DISCUSSION

         I. Defendant Is Entitled To Summary Judgment On Plaintiffs Claim Of Age Discrimination.

         A. Plaintiff Cannot Avoid Summary Judgment Under ...


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