Spicer v. Radnet Inc.

CAROLYN SPICER, Plaintiff,

v.RADNET, INC. and RADIOLOGY AND NUCLEAR MEDICINE IMAGING PARTNERS, INC.,Defendants.

CIVIL ACTION No. 10-4024-KHV

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS

Dated: May 31, 2011

MEMORANDUM AND ORDER

Carolyn Spicer brings suit against Radiology and Nuclear Medicine Imaging Partners, Inc. ("RNMIP") under the Age Discrimination in Employment Act, 29 U.S.C. § 623 ("ADEA"), and the Kansas Age Discrimination in Employment Act, K.S.A. § 44-1113 ("KADEA").¹ Plaintiff alleges age discrimination and retaliation for opposing defendant's unlawful discriminatory practices. This matter is before the Court on Defendant's Motion For Summary Judgment (Doc. #51) filed January 20, 2011.

As explained in prior orders, plaintiff did not timely respond to defendant's motion. See Order (Doc. #68) filed May 5, 2011; Order To Show Cause (Doc. #64) filed April 27, 2011. On April 26, 2011, plaintiff filed an untimely response which the Court struck. See Doc. #68. The Court therefore treats defendant's motion as uncontested. See D. Kan. Rule 7.4(b).

Legal Standards

Ordinarily, the Court would grant the motion without further notice, D. Kan. Rule 7.4(b), buta party's failure to respond to a summary judgment motion is not by itself a sufficient basis on which to enter judgment. Reed v. Bennett, 312 F.3d 1190, 1194-95 (10th Cir. 2002). Rather, the Court must determine whether judgment for the moving party is appropriate under Rule 56, Fed. R. Civ. p. Id.

Summary judgment is appropriate if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986); Vitkus v. Beatrice Co., 11 F.3d 1535, 1538-39 (10th Cir. 1993). A "genuine" factual dispute is one "on which the jury could reasonably find for the plaintiff;" it requires more than a mere scintilla of evidence. Liberty Lobby, 477 U.S. at 252. A factual dispute is "material" only if it "might affect the outcome of the suit under the governing law." Id. at 248.

The moving party bears the initial burden of showing that there are no genuine issues of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Justice v. Crown Cork & Seal Co., 527 F.3d 1080, 1085 (10th Cir. 2008). By failing to file a timely response, plaintiff has waived the right to respond to or controvert the facts that defendant asserts in its summary judgment motion. Reed, 312 F.3d at 1195. The Court therefore accepts as true all material facts asserted and properly supported in the summary judgment motion, but will grant summary judgment only if those facts entitle defendant to judgment as a matter of law. Id. (citations omitted). When applying this standard, the Court must view the factual record in the light most favorable to plaintiff, the nonmoving party. Duvall v. Ga.-Pac. Consumer Prods., L.P., 607 F.3d 1255, 1260 (10th Cir. 2010); see Ricci v. DeStefano, 129 S. Ct. 2658, 2677 (2009).

Facts

The following facts are uncontroverted.

Defendant contracts with roughly 30 radiologists at two centers in Topeka, Kansas. Its Calendar Coordinators are responsible for managing the schedules of the radiologists. David Smith Depo. at 9:13-16. Plaintiff began working for defendant on September 27, 1999. Pretrial Order (Doc. #50) filed January 10, 2011 at 4. Before defendant terminated her employment on April 10, 2009 at the age of 62, plaintiff worked as a Calendar Coordinator in the Physician Support Department. Id.

At the time defendant hired plaintiff, it cross-trained at least two employees as Calendar Coordinators so that if one employee was unavailable, another employee could cover. Smith Depo. at 51:2-14. When defendant hired plaintiff, Connie Hiebert cross-trained her as a Calendar Coordinator. Id. at 85:24-86:21. At the time, the task of keeping the calendar was a manual, paper-intensive process. Id. at 51:14-16. In August of 2005, Hiebert retired. At some point shortly thereafter, defendant transferred Kelly Bushey, age 39, from its business office to plaintiff's department and asked plaintiff to cross-train her as a Calendar Coordinator. Pl. Depo. at 11:9-11, 24:18, 24:22; Smith Depo. at 100:16-102:13.

Jim Loveless supervised plaintiff from as early as March of 2005 through March of 2007. On each of plaintiff's performance reviews for 2005 through 2007, Loveless gave plaintiff an overall performance rating of three - "meets expectations" - on a scale of one to five. Doc. #52, Ex. E, G and I.² In each of the reviews he made very positive statements about Plaintiff's performance andability to work well with others.³ On October 11, 2005, however, Loveless e-mailed plaintiff and her co-worker Marcia Miller regarding personnel issues. Doc. #52, Ex. F. Loveless stated that he had drafted a written counseling report but decided not to file it. Id. The e-mail emphasized defendant's policies regarding personal phone calls at work, flex time and breaks. Id. He also asked plaintiff and Miller to put aside their personality conflict and concentrate on their jobs. Id.

At some point in 2006, the East Coast Chief of Operations for RadNet Management, Inc. instructed defendant to look for ways to reduce expenses by cutting personnel wherever possible.⁴ Ruth Wilson Depo. at 11:12-12:22. As a result, Plaintiff's superiors were constantly looking for ways to eliminate staff. See id.; Smith Depo. at 76:19-24; Myla Matney Depo. at 10:6-10. This policy was the basis for a reduction in force ("RIF") pursuant to which defendant terminated plaintiff's position.

In late 2007, Loveless left defendant and Myla Matney took his place as Plaintiff's supervisor. Shortly thereafter, Matney began instituting changes in the Physician Support Department. See Doc. #52, Ex. R. Matney required her employees, including plaintiff and Bushey, to cross-train oneach other's jobs so that they could cover for each other when necessary. Matney Depo. at 13. During the cross-training process - some time in early 2008 - Matney noticed that her employees had "excess downtime." Id. She attributed the downtime to advancements in the calendar program which automated certain Calendar Coordinator responsibilities. Id. Plaintiff agreed that she did not always have enough work to fill her time, but testified that down time was "unusual." Pl. Depo. at 15:10-16:3. Matney observed that plaintiff "allow[ed] existing work to fill time" instead of being "as efficient as possible to increase productivity." Doc. #52, Ex. O. At the time, Matney noted that defendant no longer needed two Calendar Coordinators. Id.

In January of 2008, shortly after Matney took over as plaintiff's supervisor and began instituting changes to the Department, plaintiff contacted Ruth Wilson, the Human Resource Director at RadNet Management. Doc. #52, Ex. J; Pl. Depo. at 13-14. Around the same time, plaintiff also had a phone conversation with Wilson. Pl. Depo. at 13-14. In the e-mail and phone conversation, plaintiff expressed concerns that Matney and David Smith, the Practice Administrator, were discriminating against her based on age. Doc. #52, Ex. J; Pl. Depo. at 13-14. Specifically, plaintiff told Wilson that she had "considerable anxiety" regarding the departure of Loveless, and concerns about the management style of Matney and Smith. Doc. #52, Ex. J. Plaintiff told Wilson that she was uneasy about some of the changes which Matney and Smith were making, and that she was anxious because she knew that a co-worker was interested in taking her position. Id. In the email, plaintiff mentioned that she was 60 years old and that she had a good work performance record. Doc. #52, Ex. J; Spicer Depo. at 13-14. Plaintiff also stated that she suspected Matney and Smith of trying to replace her with a younger employee - Bushey - by withholding information from plaintiff and shifting some of her duties to Bushey. Id. In addition, plaintiff mentioned that she wasroughly five years away from retirement. Pl. Depo. at 13:23-14:2. In response to Plaintiff's charge of age discrimination, Wilson undertook an investigation to determine whether Plaintiff's allegations had merit. See Wilson Depo. at 73.

In January of 2008, plaintiff committed at least two scheduling errors. On January 7, 2008, plaintiff mistakenly scheduled a radiologist to do "outreach" and to work late, which was against company policy. See id. On January 21, 2008, plaintiff apologized to a radiologist for a scheduling error. See Doc. 52, Ex. M.

In late February of 2008, Matney asked plaintiff to give her office to Bushey and to move into a shared office with a Diana Vance. Doc. #52 Ex. N. Matney initially asked plaintiff, Bushey and Vance to work out the office arrangements among themselves. Pl. Depo. 48:4-49:24. The three agreed that Bushey would share an office with Vance and that plaintiff would stay in her office, which was traditionally reserved for the "lead person." Id. 48:20-23. Matney intervened, however, and decided that Bushey should have her own office because her role in the Materials Management department generated distracting phone and foot traffic that Plaintiff's job and Vance's job did not. See Doc. #52, Ex. N. Ms. Matney asked Ms. Vance to move into Plaintiff's office, but discovered that Plaintiff's office would not accommodate computer cables and phone lines for two people. Id. Matney therefore asked plaintiff to move out of the "lead" office and to share Vance's office. Id.; Pl. Depo. 48:4-49:24. Plaintiff was unhappy with the decision. See Doc. #52, Ex. N.

On March 21, 2008, Matney gave plaintiff an overall performance rating of two - "below expectations" - on a scale of one to five. Doc. #52, Ex. O.⁵ On Plaintiff's evaluation, Matney commented that plaintiff must "demonstrate a more positive outlook," "be more consistentlysupportive of...