TUCKER v. ASCENSION HEALTH ALLIANCE, INC.

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF INDIANA

INDIANAPOLIS DIVISION

BARBARA L TUCKER, )

)

Plaintiff, )

)

v. ) No. 1:17-cv-04332-JPH-TAB

)

ASCENSION HEALTH ALLIANCE, INC. )

d/b/a ASCENSION, )

ST. JOSEPH HOSPITAL & HEALTH )

CENTER, INC. )

d/b/a ST. VINCENT KOKOMO )

HOSPITAL, )

)

Defendants. )

ORDER GRANTING IN PART AND DENYING IN PART ASCENSION HEALTH

ALLIANCE’S MOTION FOR SUMMARY JUDGMENT

Barbara Tucker worked for Ascension Health Alliance, Inc. for eight

years. Her position was eliminated due to a company-wide restructuring of the

human resources departments. Ms. Tucker applied for 20 other jobs but was

not offered any position. Ms. Tucker alleges this was because of her age and

sex. Ascension has filed a motion for summary judgment. For the reasons set

forth below, the motion is GRANTED in part DENIED in part. Dkt. [39].

I.

Facts and Background

Because Ascension has moved for summary judgment under Rule 56(a),

the Court views and recites the evidence “in the light most favorable to the non-

moving party and draw[s] all reasonable inferences in that party’s favor.”

Zerante v. DeLuca, 555 F.3d 582, 584 (7th Cir. 2009) (citation omitted).

A. Facts

Ms. Tucker began working for Ascension as its Staff Development

Coordinator at St. Vincent Kokomo Hospital in 2008. Dkt. 40-1 at 5 (Tucker

Dep. 10:12–16). Her position was within the Human Resource Department’s

Learning and Development Division. Id. at 15 (50:21–25). As Staff

Development Coordinator, Ms. Tucker’s job responsibilities included:

overseeing licensing and certifications; conducting orientation programs;

keeping human resource records for certain workers; and creating online

training for staff. Id. at 8–9 (22:15–26:25). In all of Ms. Tucker’s performance

evaluations, Ascension found that she either met or exceeded expectations in

every job category. See dkt. 45-2.

In September 2015, Ascension informed its human resources employees

that it was restructuring the Human Resources Department to centralize

functions and outsource recruiting. Dkt. 40-1 at 15 (Tucker Dep. 50:1–14).

Ascension notified the employees that, in conjunction with the restructuring, it

would be eliminating positions in the Human Resources Department. Id. at 17

(58:9–20). Employees would be given the first opportunity to apply for new

positions. Id. (60:1–5). The restructuring lasted from 2015 to 2016. Dkt. 40-5

at 5 (Patrick Decl. ¶ 25).

Throughout 2016, Ascension posted multiple positions related to human

resources under the new structure. See dkt. 40-6. Ascension required each

applicant to submit a form application and resume for each position. Dkt. 40-

5 at 4 (Patrick Decl. ¶ 20). A recruiter would review the applications, id. (¶ 21),

and then provide the hiring decision-makers with the application materials of

the candidates best qualified for that position, id. (¶ 22). The hiring decision-

makers would then decide which candidates were the most qualified for

interviews, id. (¶ 23), conduct interviews, id., and select the most qualified

candidate or candidates for each position, id. (¶ 24).

Ms. Tucker applied for twenty open positions with Ascension during the

reorganization. See dkt. 40-61. She was not invited to interview for nor offered

any position. Dkt. 40-1 at 22 (Tucker Dep. 80:23–25).

As part of the company’s restructuring, Ascension eliminated Ms.

Tucker’s position in September 2016. See dkt. 40-4. The week prior,

Ascension informed Ms. Tucker that she was being laid off. Dkt. 40-1 at 25

(Tucker Dep. 89:16–17).

Ms. Tucker was fifty-nine years old. Dkt. 45 at 2. Prior to working for

Ascension, Ms. Tucker had experience working in human resources and taught

the subject for several years at a college level. Dkt. 40-1 at 12–13 (Tucker Dep.

39:15–44:20). She has a master’s degree in Business Administration and a

master’s degree in Public Administration in Health Care Administration. Id. at

5 (9:13–10:11). When Ascension hired her in 2008, she was working towards

her doctorate in business administration. Id.

1 Job Openings (“JO”): 72110; 109124; 109650; 111124; 117497; 131523; 138696;

138910; 142312; 144062; 146056; 146492; 146493; 148020; 148021; 148082;

148108; 148193; 150304; 150856. See dkt. 40-5.

B. Procedural

The complaint brings two claims against Ascension: age discrimination in

violation of the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. §

621 et seq. (Count I); and sex discrimination in violation of Title VII of the Civil

Rights Act of 1964, 42 U.S.C. § 2000e, et seq. (Count II). Dkt. 1. Ascension

has moved for summary judgment on both claims. Dkt. 39.

In her response, Ms. Tucker concedes the sex discrimination claim

(Count II). Dkt. 45 at 2 n.1. When a party fails to delineate a claim in her brief

in opposition to summary judgment, that claim is “deemed abandoned.”

See Maclin v. SBC Ameritech, 520 F.3d 781, 788 (7th Cir. 2008). Therefore,

Ascension’s motion for summary judgment is GRANTED as to Count II. See

Franklin v. Randolph Cty. Comm’rs, 1:18-cv-01340, 2019 WL 3037181, at *4

(S.D. Ind. 2019). The Court’s analysis is thus limited to Ms. Tucker’s claim

that her age was the reason she was not selected for any of the twenty

positions for which she applied.

For the first six positions, Ascension argues that Ms. Tucker cannot

demonstrate that Ascension hired someone substantially younger or left the

positions open. Dkt. 40 at 15 (Job Openings 111124, 142312, 144062,

146493, 148020, 138696) (citing dkt. 40-6). For the next six positions, it

argues that Ms. Tucker cannot demonstrate that she was qualified. Id. at 15–

302 (Job Openings 72110, 109124, 109650, 117497, 148193, 150856). Ms.

Tucker does not respond, see dkt. 45 at 7, so Ascension’s motion for summary

2 Citing dkt. 40-7; dkt. 40-8; dkt. 40-9; dkt. 40-10; dkt. 40-17; dkt. 40-19.

judgment with respect to these twelve positions is GRANTED. See Roe-Midgett

v. CC Servs., Inc., 512 F.3d 865, 876 (7th Cir. 2008) (undeveloped argument

constitutes waiver).

II.

Applicable Law

Summary judgment shall be granted “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). The moving party must

inform the court “of the basis for its motion” and specify evidence

demonstrating “the absence of a genuine issue of material fact.” Celotex Corp.

v. Catrett, 477 U.S. 317, 323 (1986). Once the moving party meets this

burden, the nonmoving party must “go beyond the pleadings” and identify

“specific facts showing that there is a genuine issue for trial.” Id. at 324.

In ruling on a motion for summary judgment, the Court views the

evidence “in the light most favorable to the non-moving party and draw[s] all

reasonable inferences in that party’s favor.” Zerante v. DeLuca, 555 F.3d 582,

584 (7th Cir. 2009) (citation omitted).

III.

Analysis

A. The ADEA

The ADEA prohibits an employer from, among other things, failing or

refusing to hire an individual “because of such individual’s age.” 29 U.S.C. §

623(a); see Carson v. Lake Cty., 865 F.3d 526, 532 (7th Cir. 2017). To prevail

on an ADEA claim, a plaintiff must “prove, by a preponderance of the evidence,

that age was the ‘but-for’ cause of adverse employment action.” Carson, 865

F.3d at (quoting Gross v. FBL Fin. Servs., 557 U.S. 167, 177 (2009)); see also

Lauth v. Covance, Inc., 863 F.3d 708, 715 (7th Cir. 2017). The singular

question that matters in an age discrimination case is whether the evidence

would permit a reasonable factfinder to conclude that the plaintiff’s age caused

the adverse employment action. McDaniel v. Progress Rail Locomotive, Inc., 940

F.3d 360, 367 (7th Cir. 2019). One way to present evidence is through the

McDonnell Douglas burden-shifting framework. Id. (citing McDonnell Douglas

Corp. v. Green, 411 U.S. 792 (1973)).

There are three steps to the McDonnell Douglas burden-shifting

framework. See 411 U.S. 792 (1973). Step one requires the plaintiff to

establish by the preponderance of the evidence a prima facie case of

discrimination. Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253

(1981). To establish a prima facie case, “a plaintiff must show that: (1) [she] is

a member of a protected class; (2) [she] applied for and was qualified for an

open position; (3) despite [her] qualifications, [she] was rejected for the

position; and (4) a similarly situated person outside [her] protected class was

hired for the position instead, or the position remained open.” Sweatt v. Union

Pac. R.R. Co., 796 F.3d 701, 709 (7th Cir. 2015).

For step two, the burden shifts to the employer “to articulate some

legitimate, nondiscriminatory reason for the employee’s rejection.” Burdine,

450 U.S. at 253 (quoting McDonnell Douglas, 411 U.S. at 802). “This burden is

one of production, not persuasion.” Reeves v. Sanderson Plumbing Prods., 530

U.S. 133, 142 (2000). To meet this burden, the employer must “clearly set

forth, through the introduction of admissible evidence, the reasons for the

employee’s rejection.” Burdine, 450 U.S. at 255. The explanation provided

must be legally sufficient to justify a judgment for the employer. Id.

Lastly, for step three, “the burden shifts back to the plaintiff to present

evidence . . . that the stated reason is a ‘pretext,’ which, if proven, gives rise to

an inference of unlawful discrimination.” McDonnell Douglas, 411 U.S. at 804.

“Although intermediate evidentiary burdens shift back and forth under this

framework, ‘the ultimate burden of persuading the trier of fact that the

[employer] intentionally discriminated against the plaintiff remains at all times

with the plaintiff.’” Reeves, 530 U.S. at 143 (quoting Burdine, 450 U.S. at 253).

B. The positions at issue

For the eight positions at-issue, Ascension does not contest that Ms.

Tucker has established her prima facie case. See dkt. 40 at 16 (“Ms. Tucker

was qualified for some of the job openings, but as to those openings her claims

still fail because she cannot demonstrate pretext.”)3. Rather, Ascension argues

it is entitled to summary judgment because it has come forth with legitimate,

non-discriminatory reasons for why Ms. Tucker was not offered any of the eight

positions. Id. Ascension further argues that Ms. Tucker cannot show pretext

3 See, e.g., dkt. 40 at 18–19 (Job Opening 109650) (“Although Ms. Tucker may have

met the qualifications for the position…”; id. at 26–27 (Job Opening 148108) (“Ms.

Tucker might technically meet the required qualifications…”); id. at 28 (Job Opening

150304) (“Ms. Tucker met the basic qualifications…”). See also id. at 20 (Job Opening

131523); id. at 21 (Job Openings 138910, 146056); id. at 23 (Job Opening 146492); id.

at 25–26 (Job Opening 148082).

because the candidates who were selected for these eight positions were more

qualified than her. Id. at 15–304 (Job Openings 109650; 131523; 138910;

146056; 146492; 148082; 148108; and 150304).

C. Ascension’s burden of production

At this stage, Ascension bears the burden of production to “clearly

expound a legitimate, non-discriminatory reason for its choice.” EEOC v.

Target Corp., 460 F.3d 946, 957 (7th Cir. 2006); see also McDonnell Douglas,

411 U.S. at 802–03. To meet this burden, Ascension “must use admissible

evidence to raise a genuine issue of fact as to whether it rejected [Ms. Tucker]

based on a discriminatory motive.” Target Corp., 460 F.3d at 957 (citing

Burdine, 450 U.S. at 257). Ascension “must explain its claimed reason for

rejecting [Ms. Tucker] clearly enough to allow the court to focus its inquiry on

whether [Ascension] honestly believed that reason, and to allow [Ms. Tucker] to

identify the kind of evidence [she] must present to demonstrate that the reason

is a pretext.” Id. (internal citations omitted); see Burdine, 450 U.S. at 255–56

(the employer must “frame the factual issue with sufficient clarity” so that

the plaintiff has an opportunity to “demonstrate pretext”). The sufficiency of

Ascension’s evidence is “evaluated by the extent to which it fulfills these

functions.” Burdine, 450 U.S. at 256.

4 Citing dkt. 40-9; dkt. 40-11; dkt. 40-12; dkt. 40-13; dkt. 40-15; dkt. 40-16; dkt. 40-

18.

D. Ascension’s designated evidence

Ascension argues it has met the burden of production with evidence

showing the candidates it hired for the eight positions were better qualified

than Ms. Tucker. Dkt. 40 at 16. Ms. Tucker argues that Ascension falls short

of meeting its burden of production because it does not designate evidence

explaining how the decision-maker for each position applied the hiring criteria

when comparing Ms. Tucker’s qualifications to those of other applicants. Dkt.

45 at 8–10. Ascension replies that it met its burden by producing evidence of

(1) the hiring process it used to fill the positions, (2) the criteria used in

selecting employees for each position, and (3) the qualifications of the chosen

candidates as well as Ms. Tucker’s qualifications. Dkt. 46 at 3–6.

Ascension’s designated evidence includes: a declaration from Stuart

Patrick, Senior Director of Human Resources, which outlines Ascension’s

hiring procedure, dkt. 40-5; Ms. Tucker’s resume, dkt. 40-21; a Hiring Details

Chart, which lists each position Ms. Tucker applied for, the names of the hirers

and recruiters, and the names and ages of the hired candidates, dkt. 40-6;

each job posting that Ms. Tucker applied and submitted resumes for, and

applications for each of the hired candidates, see dkt. 40-9, dkt. 40-11, dkt.

40-12; dkt. 40-13; dkt. 40-15, dkt. 40-16, dkt. 40-18.

Ascension’s hiring process involved subjective decision-making by at

least two people in selecting the candidate who was hired for each position.

See dkt. 40-5 (Patrick Decl.). Through the process, the pool of applicants was

winnowed down until a hiring decision made. First, a recruiter reviewed the

applications to determine which applicants were best qualified. Id. at 4 (¶ 21).

Only the applications of the candidates determined by the recruiter to be best

qualified were forwarded to the decision-maker who was responsible for making

the hiring decision. Id. (¶ 22). Second, the respective decision-maker reviewed

the applications identified by the recruiter and determined which were best

qualified and thus offered an interview. Id. (¶ 23). Last, after conducting

interviews, the decision-maker determined which applicants were the best

qualified and thus offered a job. Id. at 5 (¶ 24).

Ascension has not designated evidence that connects the designated

evidence to each hiring decision. Hiring for each position involved three

decision-points where someone at Ascension other than Mr. Patrick

subjectively evaluated applicants’ qualifications to decide who was the best

qualified candidate. But there is no designated evidence: from the recruiter

explaining how he or she evaluated Ms. Tucker’s qualifications against those of

the candidates who the recruiter determined were the most qualified; from the

decision-maker explaining how he or she evaluated the qualifications of the

candidates who were determined to be the most qualified and offered an

interview; from the decision-maker explaining how he or she evaluated the

qualifications of the candidates who were determined to best qualified and

offered a position; or regarding how any recruiter or decision-maker evaluated

the applicants’ qualifications relative to one another. Although the Hiring

Details Chart identifies the recruiters and decision-makers for each position,

dkt. 40-6, Ascension’s designated evidence does not reveal at what stage Ms.

Tucker was determined to not be one of the best qualified, who made that

decision, or the specific reasons for the decision with respect to each position.

Ascension argues it satisfied the burden of production by setting forth

evidence of the process followed in selecting applicants along with evidence of

the applicants’ qualifications and those of Ms. Tucker. Dkt. 46 at 3. But like

the assertion that an applicant gave a “poor interview” was not enough to meet

the burden of production, Ascension’s assertion that Ms. Tucker was not the

“best qualified” is not enough. See Target Corp., 460 F.3d at 957 (citing

Chapman v. AI Transp., 229 F.3d 1012, 1034–35 (11th Cir. 2000)). A generic

statement that the employer hired the best qualified person without any

further explanation does not create a genuine issue of fact as to whether the

employer rejected the applicant based on her age. Target Corp., 460 F.3d at

958. Nor does such a generic statement leave a “full and fair opportunity” for

the employee to rebut the given reason as a pretext. Id.; see also Burdine, 450

U.S. at 258.

An employer can meet its burden of production by articulating

a legitimate non-discriminatory reason through the affidavit or testimony of

the decision-maker. See, e.g., Oliver v. Joint Logistics Managers, Inc., No. 4:15-

cv-04014-SLD-JEH, 2017 WL 736873, at *4 (C.D. Ill. Feb. 24, 2017), aff’d, 893

F.3d 408, 413 (7th Cir. 2018); Hague v. Thompson Distribution Co., 436 F.3d

816, 826 (7th Cir. 2006). Additionally, the employer may use other admissible

evidence, such as a decision-maker’s memorandum, detailing reasons for his or

her hiring decisions. See, e.g., Rudin v. Lincoln Land Cmty. Coll., 420 F.3d 712,

725 (7th Cir. 2005). Either way, the “employer must articulate reasonably

specific facts that explain how it formed its opinion of the applicant in order to

meet its burden under Burdine.” Target Corp., 460 F.3d at 957.

Ascension’s proffered reasons why other candidates were selected over

Ms. Tucker, such as more familiarity with the department or relevant work or

educational experience, see dkt. 40 at 20–23, do not suffice because they are

not supported by designated evidence. Burdine, 450 U.S. at 255 n.9 (an

employer cannot meet its burden by argument of counsel). For example,

Ascension asserts that it offered Rebecca Cook the “In Market Learning and

Development SME” position because she was the better candidate. Dkt. 40 at

22. Ms. Cook and Ms. Tucker were counterparts at St. Vincent and had the

same responsibilities. Dkt. 40-1 at 16 (Tucker Dep. 53:25–54:7). While

Ascension’s brief offers some explanation for the decision, the explanation is

not supported by designated evidence. Putting explanations such as this aside,

Ascension’s designated evidence is not sufficient to create a genuine issue of

fact as to whether Ascension rejected Ms. Tucker because of her age so it does

not satisfy the burden of production. Target Corp., 460 F.3d at 958.

Ascension argues there is no evidence from which a factfinder could find

that Ms. Tucker was not offered any of the eight positions because of her age.

Dkt. at 46 at 2. Not so. The facts that establish the prima facie case of

discrimination under McDonnell Douglas are sufficient to support an inference

of discrimination. See McDonnell Douglas, 411 U.S. at 802; McDaniel, 940 F.3d

at 368 (“All things being equal, if an employer takes an action against one

employee in a protected class but not another outside that class, one can infer

discrimination.”) (quoting Filar v. Bd. of Educ., 526 F.3d 1054, 1061 (7th Cir.

2008). Ascension correctly states that it need not persuade the Court at this

stage that it did not discriminate. Target Corp., 460 F.3d at 957. But it must

designate admissible evidence sufficient to meet its burden of production. Id.

It has not done that here.

IV.

Conclusion

Ascension’s motion for summary judgment on Count I is DENIED and on

Count II is GRANTED. Dkt. [39].

SO ORDERED.

Date: 11/8/2019

Slam ruck lbanlove

Distribution: James Patrick Hanlon

istribution: United States District Judge

Samuel Mark Adams Southern District of Indiana

JOHN H. HASKIN & ASSOCIATES, LLC

sadams@jhaskinlaw.com

Zachary A. Ahonen

JACKSON LEWIS PC (Indianapolis)

zachary.ahonen@jacksonlewis.com

Drew Christopher Ambrose

JACKSON LEWIS PC (Indianapolis)

drew.ambrose@jacksonlewis.com

John H. Haskin

JOHN H. HASKIN & ASSOCIATES, LLC

jhaskin@jhaskinlaw.com

Michael W. Padgett

JACKSON LEWIS PC (Indianapolis)

padgettm@jacksonlewis.com

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