Bhatnagar v. Sunrise Senior Assisted Living, Inc.

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

SHARAD I. BHATNAGAR, )

)

Plaintiff, )

)

v. ) Civil Case No. 11-2281 (RJL)

)

SUNRISE SENIOR LIVING, INC., )

)

De&ndanL )

MEMORAND~N

March~ 2013 [# 9]

Plaintiff, Sharad I. Bhatnager ("plaintiff' or "Bhatnagar"), filed this lawsuit

against his former employer, Sunrise Senior Living, Inc. ("defendant" or "Sunrise"), for

unlawful termination in violation of the Age Discrimination in Employment Act

("ADEA"), 29 U.S.C. § 621 et seq. Compl. '1!12 [Dkt. # 1]. Defendant moved for

summary judgment, alleging that plaintiff failed to identify a genuine issue of material

fact that his termination was motivated by his age. Def. 's Mot. for Summ. J. [Dkt. # 9]

("Def.'s Mot."); Def.'s Mem. in Supp. of Mot. for Summ. J. [Dkt. # 9-2] ("Def.'s Mem.")

at 31. Because plaintiff has failed to identify a genuine issue of material fact as to his

age discrimination claim, the Court GRANTS defendant's Motion for Summary

Judgment.

BACKGROUND

Defendant is the manager of Grand Oaks, a Washington, D.C. assisted living

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facility owned by Sibley Hospital. Pl.'s Resp. to Def.'s Mot. for Summ. J. [Dkt. # 12]

("Pl.'s Opp'n") at 1. Plaintiff worked at Grand Oaks as the Dining Services Director

from May 15, 2006 until his termination on December 16, 2010 at age 61. Dep. of

Sharad Bhatnagar ("Bhatnagar Dep.") [Dkt. # 9-5], Ex. 3 to Def.'s Mot., at 59-60,351.

He reported to Executive Director Paul Kelley ("Kelley") until February 2009, when

Beatriz Van Goethem ("Van Goethem") replaced Kelley as Executive Director and

plaintiffs supervisor. Decl. of Jackie Sollars-Wade ("Sollars Decl.") [Dkt. # 9-6], Ex. 4

to Def.'s Mot.,~ 2. One month later, Perri Holod ("Holod") became Sunrise's Regional

Director of Operations. Decl. of Perri Holod ("Holod Decl.") [Dkt. # 9-3], Ex. 1 to

De f.'s Mot., ~ 3. Plaintiff claims that he had a poor working relationship with both Van

Goethem and Holod. Bhatnagar Dep. at 97-98, 156-57.

1. Plaintiff's Performance

In March 2010, Bhatnagar had his annual performance review with Van Goethem.

Bhatnagar Dep. at 183-84 & Ex. 5. He received an overall rating of"effective," or a

three out of five. !d., Ex. 5. Having received "very effective" ratings prior to this

performance review, he was unhappy with this rating and submitted a rebuttal. !d. at

184. In the review, plaintiff was criticized for "[l]ack of issuing timely disciplinary

actions" to team members. !d., Ex. 5. Plaintiff admitted that he had refused to

discipline or terminate several employees, as instructed by Van Goethem, because he had

disagreed with her instruction. !d. at 185-89.

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In April 2010, Holod conducted another site visit at Grand Oaks. Holod Decl. ~

10. She was "appalled by the conditions" in the kitchen. !d. In her report, she noted in

bold that "[t]he kitchen needs immediate attention and is extremely dirty." !d., Ex. B.

Holod also noted that food cannot be stored on the floor and needed to be dated, labeled,

and rotated. !d. She threw out hundreds of dollars of food that was not properly dated

or labeled, as it presented a health risk to the residents. !d. ~ 10. She also stated that the

stove, oven, grill, burners, and warmer needed to be thoroughly cleaned to remove "the

severe grease build up" and to avoid "a fire hazard." !d., Ex. B. Because plaintiff was

not present during the site visit, Holod enlisted the Director of Facilities to assist with

kitchen sanitation, even though kitchen sanitation was not his responsibility. !d. ~ 11.

On July 19, 2010, Bhatnagar received a Final Warning from Van Goethem for

failing to follow Sunrise's disciplinary policy with employee Martha Reyes and for

inadequate communication with the executive chef about extending another employee's

vacation. Bhatnagar Dep. at 226-28 & Ex. 9. Plaintiff believed that the warning was

issued because Van Goethem was upset that Martha Reyes had called the employee

hotline to complain about plaintiff. !d. at 231-32. Plaintiff took off sick for the next

three days and then asked Holod to meet with him. !d. at 217-18. Plaintiff described

the meeting as one in which Holod was not interested in listening to him and asked him,

"If you don't like it, why [don't] you leave[?]" !d. at 218. At the end of July 2010, Van

Goethem resigned. Holod Decl. ~ 13.

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On August 11, 2010, Regional Director of Dining Services Helene Fletcher

performed an audit of Grand Oaks' Dining Services department. Decl. of Helene

Fletcher ("Fletcher Decl. ") [Dkt. # 9-7], Ex. 5 to De f.'s Mot., ~~ 1, 7). She gave the

department a score of63.99 percent, a grade equivalent of"D." /d.~ 8 & Ex. A.

Similar to Holod's prior assessment, Fletcher found that the "kitchen currently does not

meet our standard for cleanliness and needs an improved process to ensure detailed

cleaning is completed." /d., Ex. A. Fletcher also found milk stored on the floor,

prepared items mixed with raw products, and overstuffed food storage areas. /d. ~ 8&

Ex. A. Around the same time as this audit, Carla Shipley became the new Grand Oaks

Executive Director. Decl. of Carla Shipley ("Shipley Decl.") [Dkt. # 9-4], Ex. 2 to

Def. 's Mot.,~ 4.

On August 30, 2010, Regional Director of Human Resources Jackie Sollars met

with plaintiff and asked him to resign. Bhatnagar Dep. at 277-79. Plaintiff asked for a

few days to make a decision. /d. at 279. The next day, plaintiff sent a letter via e-mail

to three Sibley Hospital executives, stating that he had been asked to resign and was

"tired of Sunrise politics, penny pinching habits, more and more profits for Sunrise." /d.,

Ex. 15.

Doubting the fairness of Fletcher's August 20 10 audit, plaintiff requested a second

audit. /d. at 291. On September 4, 2010, Sunrise's Vice President of Dining Services

Doug Garner conducted a second audit, accompanied by Fletcher. Bhatnagar Dep. at

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291-94; Decl. of Doug Garner ("Gamer Decl.") [Dkt. # 9-8], Ex. 6 to Def.'s Mot., ,-r 3.

Garner gave the department a rating of 58.2 percent, a grade equivalent of"F." Gamer

Dec I. ,-r 4 & Ex. A. He found that the food inventory was "out of control" and the dining

area was unclean. !d. ,-r 4. When Gamer and Fletcher met with plaintiff to discuss their

findings, plaintiff"didn't seem to care," id. ,-r 5, and "made a lot of excuses for why he

couldn't get things done," Fletcher Decl. ,-r 10. Garner recommended terminating

plaintiff immediately. Garner Decl. ,-r 6 & Ex. B.

The day after this audit, plaintiff injured himself and was unable to work for three

months. Bhatnagar Dep. at 322-23, 351. During plaintiffs absence, Sunrise employees

noticed other irregularities in plaintiffs department, including an unprocessed food order,

a large excess supply of food and alcohol, an overpriced contract for laundering dining

room linens, unlocked employee files, untimely performance evaluations, and

unauthorized merit pay increases. Holod Decl. ,-r 18; Shipley Decl. ,-r,-r 11-14. When

plaintiff returned to work on December 16, 20 10, Shipley and Sollars met with plaintiff

and offered him the option to resign; when he did not accept that option, he was

terminated. Holod DecI. ,-r 19; Shipley DecI. ,-r,-r 16-17.

2. Plaintiff's Age Discrimination Allegation

Bhatnagar claims that he was terminated due to his age. Pl.'s Opp'n at 18. He

asserts that "age was the only issue [he could] think of' because his work record was

"clean and good." Bhatnagar Dep. at 372-73. Prior to Van Goethem's arrival, plaintiff

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states that he received at least "Overall Effective" ratings on his performance evaluations,

passed District of Columbia health inspections, and was told by management that his

department "looked great." Pl.'s Opp'n at 2; Decl. ofSharad I. Bhatnagar ("Bhatnagar

Decl.") [Dkt. # 11-1], Aff. to Pl.'s Opp'n, ~~ 20-21. Plaintiff also states that he received

bonuses and salary raises each year "in recognition of his service to Sunrise" and

"because [he] was doing a good job." Bhatnagar Decl. ~~ 14, 44. He said that Sibley

Hospital's president and CEO walked through his kitchen multiple times per week and

never had any complaints. !d. ~ 32. He also notes that the Sunrise CEO inspected the

Grand Oaks facility on June 7, 2010 and indicated to plaintiff that he was "very pleased."

!d.~ 41.

After Van Goethem became executive director, plaintiff states that she asked

plaintiff to retire or resign "all the time" and made comments about hiring ''young"

employees. Bhatnagar Dep. at 434-35. Plaintiff also alleges that Holod told him that he

"should retire" because "[i]t looks like it is getting too much for you," and she allegedly

asked him, "Ifyou have so many problems going on, why don't you resign?" !d. at 210,

433-34. Sollars also allegedly told plaintiff that he "should join [his] wife and work with

her and resign from [Sunrise]." !d. at 434. Unspecified Sunrise managers also told

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plaintiff that he was "getting too old" and "things like that." Id. at 433. 1

Plaintiff blames his "poorer performance review" on Van Goethem's desire to

replace plaintiff with her relative, and he claims that her Final Warning to plaintiff was

contrary to Sunrise's disciplinary policy. Bhatnagar Decl. ~~ 27, 37. Plaintiff also states

that Van Goethem refused to let him hire older, more experienced chefs in favor of a

younger applicant. !d. ~ 29. Plaintiff also prepared a list of several Grand Oaks

employees who allegedly were terminated during plaintiffs employment and were born

before 1965. Id.

Plaintiff also recalls a conversation with "a Food and Beverage Director from

[another] Sunrise facility," who allegedly told him that Sunrise management had plotted

to terminate plaintiff "by use of an audit." !d. ~ 3 8. This employee also told plaintiff

that Holod had told Shipley that her "number one job" was to fire plaintiff and that

Sollars planned to have Shipley "finish [the] job" by firing plaintiff. Id.

STANDARD OF REVIEW

Summary judgment is appropriate when the movant demonstrates that no genuine

issue of material fact is in dispute and that the moving party is entitled to judgment as a

1 Suffice it to say, the details surrounding the "getting old" statement are unclear. See

Def.'s Reply to Pl.'s Opp'n to Mot. for Summ. J. [Dkt. # 13] ("Def.'s Reply") at 13 n.7;

Pl.'s Opp 'n at 3; Bhatnagar Dep. at 433-34. In his opposition, plaintiff connects both

Holod and Van Goethem with the "getting old" comment. See Pl.'s Opp'n at 18. But

when plaintiff was asked in his deposition to specifY what Holod said, he did not mention

the "getting old" comment. See Bhatnagar Dep. at 433-34.

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matter oflaw. Fed. R. Civ. P. 56(a). The moving party bears the burden, and the court

will draw "all justifiable inferences" in favor of the non-moving party. Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 255-56 (1986). Nevertheless, the non-moving party

"may not rest upon the mere allegations or denials of his pleading, but ... must set forth

specific facts showing that there is a genuine issue for trial." !d. at 248 (internal

quotation marks and citation omitted). "Thus, if the evidence presented by the opposing

party is 'merely colorable' or 'not significantly probative,' summary judgment may be

granted." Burke v. Gould, 286 F .3d 513, 520 (D.C. Cir. 2002) (quoting Anderson, 4 77

U.S. at 249-50); see also Montgomery v. Chao, 546 F.3d 703, 708 (D.C. Cir. 2008) ("The

possibility that a jury might speculate in the plaintiffs favor ... is simply insufficient to

defeat summary judgment."). Factual assertions in the moving party's affidavits may be

accepted as true unless the opposing party submits its own affidavits, declarations, or

documentary evidence to the contrary. Neal v. Kelly, 963 F.2d 453, 456 (D.C. Cir.

1992). Supporting or opposing affidavits must be made on the basis of personal

knowledge and must set out facts that would be admissible in evidence. Fed. R. Civ. P.

56(c)(4).

ANALYSIS

Plaintiff alleges a violation of the ADEA, which prohibits employers from

"discharge[ing] any individual or otherwise discriminat[ing] against any individual ...

because of such individual's age." 29 U.S.C. § 623(a)(l). "To establish a

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disparate-treatment claim under the plain language of the ADEA, ... plaintiff must prove

that age was the 'but-for' cause of the employer's adverse decision." Gross v. FBL Fin.

Servs., Inc., 557 U.S 167, 176 (2009). Unfortunately, for plaintiff, he has failed to

present sufficient evidence to overcome defendant's motion for summary judgment.

Much of plaintiffs evidence is inadmissible or self-serving testimony-which, even

when taken to be true, does not support a claim of age discrimination.

1. Direct Evidence of Discrimination

To prove age discrimination under the ADEA, plaintiff may present direct

evidence of age discrimination. See Chappell-Johnson v. Powell, 440 F .3d 484, 488

(D.C. Cir. 2006). Direct evidence of discrimination is "evidence that, if believed by the

fact finder, proves the particular fact in question without any need of an inference [and]

includes any statement or written document showing a discriminatory motive on its face."

Davis v. Ashcroft, 355 F. Supp. 2d 330, 340 n.2 (D.D.C. 2005) (emphasis in original)

(citations and internal quotation marks omitted). Direct evidence may also include "a

statement that itself shows racial or gender bias in the decision" to terminate plaintiff.

Vatel v. Alliance ofAuto. Mfrs., 627 F.3d 1245, 1247 (D.C. Cir. 2011).

As "direct evidence" of discrimination, plaintiff cites two pieces of evidence.

First, he relies upon the alleged comments from Sunrise managers that he was getting

"old" and should "retire" or "resign." Pl.'s Opp'n at 18 (citing Pl.'s Opp'n at 3-4).

Certainly, asking an employee to resign does not, by itself, constitute direct evidence of

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age discrimination. See Faherty v. Lockhart, 751 F. Supp. 994, 1006 (D.D.C. 1990)

(employer asking for resignations of employees over 40 was not sufficient to prove age

discrimination). Even when the employer replaces the word "resign" with "retire," such

a comment does not clearly demonstrate discrimination based upon age. See Perry v.

Shinseki, 783 F. Supp. 2d. 125, 138 (D.D.C. 2011) (citing Shipman v. Vilsack, 692 F.

Supp. 2d 113, 118 & n.5 (D.D.C. 2010) for proposition that supervisor's inquiries about

retirement are not sufficient evidence of discriminatory intent). As for the "getting old"

comment, plaintiff does not clearly identify who made that comment. Without evidence

that the speaker participated in the decision to terminate plaintiff, plaintiff cannot rely

upon that comment as evidence of discrimination, either direct or circumstantial. See

Carter v. George Washington Univ., 387 F.3d 872, 880 (D.C. Cir. 2004). 2

Second, plaintiff cites his own testimony that Van Goethem insisted that Sunrise

hire a "young" executive chef. Pl.'s Opp'n at 4, 9, 18 (citing Bhatnagar Dep. at 435).

This evidence is clearly not "direct" evidence of age discrimination, since it has nothing

to do with plaintiff. See Simpson v. Leavitt, 437 F. Supp. 2d 95, 105 (D.D.C. 2006)

(employer's comment that we "need to bring in younger people" is not direct evidence of

2 Cf Stone v. Landis Const. Corp., 442 Fed. Appx. 568, 569 (D.C. Cir. 2011) (employer's

comment that applicant was "old" when rejecting his application constituted direct

evidence of age discrimination). Notably, Carter prevents plaintiff from relying upon

Van Goethem' s actions or statements as evidence of age discrimination against him, since

she resigned five months prior to plaintiffs termination. And tellingly, plaintiff admits

that Shipley, who replaced Van Goethem and demanded plaintiffs resignation, did not

discriminate against him on the basis of age. Bhatnagar Dep. at 353, 356.

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age discrimination because it is not specific to plaintiff). At best, it is circumstantial

evidence that cannot overcome summary judgment. !d. at 105-06.

2. Circumstantial Evidence of Discrimination

If plaintiff cannot provide direct evidence, he instead can establish discrimination

with circumstantial evidence through the burden-shifting framework of McDonnell

Douglas Corp. v. Green, 411 U.S. 792 (1973). See Chappell-Johnson, 440 F.3d at 488.

Under the traditional framework, discrimination claims proceed in three steps: "(1) the

plaintiff must prove a prima facie case of discrimination; (2) if the plaintiff does so, then

the burden shifts to the defendant to articulate some legitimate, nondiscriminatory reason

for the action in question; and (3) if the defendant meets that burden, the plaintiff must

show that the defendant's proffered reasons were not its true reasons, but were a pretext

for discrimination." Ponce v. Billington, 679 F.3d 840, 844 (D.C. Cir. 2012) (citations

and internal quotation marks omitted). 3 However, when plaintiff has suffered an adverse

employment action and defendant has asserted a non-discriminatory reason for the action,

a court need not decide whether plaintiff proved a prima facie case of discrimination.

Brady, 520 F .3d at 494. Instead, when considering a motion for summary judgment, a

3In a case involving termination, a prima facie case typically requires evidence of the

following: "(i) the employee belongs to a protected class; (ii) the employee was still

qualified for the position; (iii) despite still being qualified, the employee was fired,

demoted, or otherwise adversely acted upon; and (iv) if the employee was removed, either

someone else filled the position or the employer sought other applicants." Brady v.

Office ofSergeant at Arms, 520 F.3d 490, 493 n.l (D.C. Cir. 2008).

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court simply must determine whether "the employee produced sufficient evidence for a

reasonable jury to find that the employer's asserted non-discriminatory reason was not the

actual reason and that the employer intentionally discriminated against the employee."

!d.

Here, defendant has alleged a clear, non-discriminatory reason for terminating

plaintiff: "the two failed audits of his dining department, his imprudent letter to senior

executives at Sibley Hospital, and other instances of poor judgment." Def.'s Reply at 16.

Plaintiff, however, has utterly failed to present sufficient evidence that this reason was

pretextual for intentional discrimination. How so?

Plaintiff fails to adequately rebut the sizeable evidence of his poor job

performance. In response to the site visit and audits that found serious problems in the

kitchen, plaintiff responds with anecdotal evidence that others told him that the kitchen

"look[ed] great" or praised him for his work. Pl.'s Opp'n at 12. Even if this hearsay

were admissible, these casual comments do not rebut the weighty and detailed concerns in

the site visit and audits. Plaintiff notes that his kitchen consistently passed District of

Columbia health inspections, Pl.'s DecI. at 4, but does not show that these health

inspections addressed the same issues as Sunrise's visit and audits. 4 He also complains

that management did not give him "time ... to get ready" for the audits-hardly an

4 Indeed, evidence suggests that the city health code inspection standards are less

stringent than Sunrise's standards. See Supplemental Decl. of Helene Fletcher ("Fletcher

Supp'l Decl.") [Dkt. 13-3], Ex. C to Def.'s Reply,~ 4.

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excuse for poor kitchen maintenance. Pl.'s Opp'n at 12. He claims that Fletcher "lied"

in her audit report and that, when she handed him the audit results, she apologized to him

because "she knew they were not right." Bhatnagar Decl. ~~ 42, 44; see also Bhatnagar

Dep. at 245. 5 But he provides nothing more than his own affidavit to support these

speculations. Cf Waterhouse v. Dist. ofColumbia, 124 F. Supp. 2d 1, 7-8 (D.D.C. 2000)

(plaintiffs own opinion as to his job performance is not relevant), abrogated on other

grounds by Mastro v. Potomac Elec. Power Co., 447 F.3d 843, 850 (D.C. Cir. 2006).

Further, plaintiff fails to provide any explanation whatsoever for his inflammatory letter

to the Sibley Hospital executives, one of defendant's cited reasons for his termination.

Def.'s Reply at 16. He also admits that he refused Van Goethem's directives to

discipline employees, the key behavior underlying his weak March 2010 performance

review. See Bhatnagar Dep. at 184-89 & Ex. 5.

Moreover, certain key elements of plaintiffs evidence are inadmissible or

incomplete. For example, plaintiff provides a list of61 individuals that defendant

allegedly terminated when they were over 50 years old. See Bhatnagar Decl. ~ 29.

Several names on this list lack last names. See, e.g., id. ("Santos S, Sarpong G," and

"Yamba P"). Despite admitting that he does not know all of the people on this list,

plaintiff insists that they "were not fired for any legitimate performance or disciplinary

5In fact, what plaintiff recalled Fletcher saying to him was, '"I'm sorry.' That's all. I

have to do this."' Bhatnagar Dep. at 245.

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reason." !d. ~ 30. When describing the basis for this knowledge, he cites conversations

with "some" of the terminated employees; he also claims that he spoke to Sunrise

managers about the terminations but was "told that it was none of [his] business." !d.

Even if this hearsay evidence were admissible, it does not demonstrate that plaintiff had

personal knowledge of the reasons for the other employees' terminations. See Fed. R.

Civ. P. 56(c)(4) ("An affidavit or declaration used to support or oppose a motion [for

summary judgment] must be made on personal knowledge, set out facts that would be

admissible in evidence, and show that the affiant or declarant is competent to testifY on

the matters stated."). Similarly, plaintiff states that he received bonuses and salary raises

"in recognition of [his] service to Sunrise" and "because [he] was doing a good job,"

Bhatnagar Decl. ~~ 14, 44, but he fails to state how he has personal knowledge that these

pay increases were connected to job performance.

In sum, much of plaintiffs evidence is either hearsay or double hearsay. Plaintiff

additionally cites several rumors he heard through another Sunrise employee-that

Sunrise managers planned to use audits to fire him, that Van Goethem's "number one

job" was to fire him, and that Shipley would "finish [the] job" by firing him. !d. ~ 38.

While plaintiff appears sheepishly to acknowledge the evidentiary concerns surrounding

these rumors when he suggests that the rumors "may be considered as a statement made

to Plaintiff even if not accepted for the truth of the statement," Pl.'s Opp'n at 20 n.l, the

bottom line remains the same: these rumors cannot serve as evidence that plaintiff was

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terminated due to his age. Similarly, plaintiffs assertion that his performance reviews

had been "always ... very effective" prior to his March 2010 review, Bhatnagar Dep. at

184, is hearsay, absent the actual performance reports that he fails to produce. Curiously,

plaintiff revises that description of his performance reviews in his opposition brief, saying

that the reviews,were "at least ... 'Overall Effective"' prior to 2010. Pl.'s Opp'n at 2.

Amazingly, plaintiff changes his tune yet again in his declaration, claiming that his

reviews were "excellent" prior to 2010. Bhatnagar Dec!.~ 27. This self-serving

recollection of second-hand information is exactly the type of behavior that the hearsay

rules were designed to protect opposing parties from.

In sum, plaintiff has failed to produce sufficient evidence for a reasonable jury to

find that defendant's reasons for his termination were pretextual and that defendant

intentionally discriminated against him due to his age.

CONCLUSION

For the foregoing reasons, the Court GRANTS defendant's motion for summary

judgment. An Order consistent with this decision accompanies this Memorandum

Opinion.

I'

rz~

RICHARD J:.-~ ON

United States District Judge

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