United States District Court, D. New Mexico
PROPOSED FINDINGS AND RECOMMENDED
C. YARBROUGH UNITED STATES MAGISTRATE JUDGE
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.
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. 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
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.
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
The Court will not deem Defendant's facts
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.
“[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.
Defendant's statement of facts
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. 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. 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. 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.
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.
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.
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.
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.
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).
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.
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).
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).
Defendant Is Entitled To Summary Judgment On Plaintiffs Claim
Of Age Discrimination.
Plaintiff Cannot Avoid Summary Judgment Under