Joyce Glover v. U.S. Healthworks , 326 F. App'x 964 ( 2009 )

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued June 10, 2009
Decided June 16, 2009
Before
ILANA DIAMOND ROVNER, Circuit Judge
DIANE P. WOOD, Circuit Judge
TERENCE T. EVANS, Circuit Judge
No. 08-3531
JOYCE A. GLOVER, Appeal from the United States District
Plaintiff-Appellant, Court for the Northern District of Indiana,
Fort Wayne Division.
v.
No. 07 C 167
U.S. HEALTHWORKS,
Defendant-Appellee. William C. Lee, Judge.
ORDER
Joyce Glover, who was 66 years old at the time, claims she was cut from her job at a
U.S. Healthworks clinic in Fort Wayne, Indiana, in violation of the Age Discrimination in
Employment Act, 29 U.S.C. §§ 621-634. The district court granted summary judgment for
her employer, and Glover appeals.
Glover was hired at the age of 58 as a center manager at U.S. Healthworks’s Fort
Wayne facility in 1998. The clinic contracts with businesses to provide their employees
with health-care services, including physicals, treatment for job-related injuries, and
No. 08-3531 Page 2
physical therapy. Glover’s duties included managing the clinic’s finances and personnel as
well as general oversight of operations. Healthworks, which operates in several states,
began struggling in 2001 in the wake of the financial downturn after 9/11. To cut costs the
company began assigning one manager to two clinics where possible, and for a short time
in 2003 Glover managed both the Fort Wayne clinic and the clinic in Warsaw, Indiana. The
Fort Wayne clinic suffered another setback in 2005 when its biggest client closed up shop.
In addition to the loss of revenue in Fort Wayne, Healthworks anticipated a
significant reduction in revenue in California, the company’s largest revenue-producing
state, when a new law took effect in 2006 that would change how claims for workers’
compensation were paid. Healthworks decided to compensate by cutting costs company-
wide, and a decision was made to eliminate at least 43 jobs nationally. Mark Foster,
regional director of the Midwest region and Glover’s supervisor, worked with Brian Arnds,
the national vice-president of Human Resources, to decide which positions in the Midwest
could be eliminated. Foster and Arnds based their cuts on (1) the job description, (2) the
need for that particular job within the company, (3) the performance of the employee
holding the job, and (4) that employee’s tenure. The two men concluded that the clinic in
Fort Wayne did not warrant a stand-alone manager, and they decided to combine the
management of that clinic with a second clinic. This time, however, Glover was not
selected to run two clinics. Instead, Kelli Becker, a younger employee who managed a
clinic in Elkhart, Indiana, was tasked with the additional responsibility of managing the
Fort Wayne clinic. On June 29, 2006, Foster informed Glover that her position was being
eliminated due to a reduction in force. He assured her that the decision had nothing to do
with her performance and offered her a severance package in exchange for a general release
agreement.
Glover rejected the severance package and instead filed suit, claiming that Foster
and Arnds used the RIF as an excuse to get rid of her because of her age. Glover thought
that her age was a factor in Foster’s decision because the year before, when she turned 65,
he told her that he did not want her to “up and retire and leave [him] without a center
manager,” and therefore her possible retirement was on his mind. Additionally, when
Foster offered her the severance package, he said, “I hope this gets you through to the end
of the year.” Glover assumed he meant that she would have retired anyway and answered:
“I have never given you a notice that I was retiring. I cannot retire. I will have to look for
another job.”
Glover was also suspicious because she was the only center manager out of 100
nationwide whose position was eliminated, she was the only employee terminated in the
Midwest region, and she was the oldest nonphysician employee who was let go. Further-
No. 08-3531 Page 3
more, she was performing her job well, as evidenced by a recent e-mail from Foster’s boss
congratulating her on her outstanding financial performance for the year 2005 and stating
that he believed she would “carry the momentum forward.”
Healthworks denied engaging in age discrimination and at summary judgment
explained its decision to eliminate the management position in Fort Wayne and retain
Becker over Glover. According to the company, Foster and Arnds first concluded that the
clinics in Elkhart and Fort Wayne should be combined under a single manager; the Fort
Wayne clinic was losing money in 2006, while the Elkhart clinic was profitable. Becker, the
Elkhart manager, had worked at Healthworks six years longer than Glover and had
consistently outscored her on performance reviews. For example, on a form allowing a
reviewer to select a rating of unsatisfactory, needs improvement, satisfactory, exceptional,
or outstanding, Becker’s overall performance in 2004 was described as exceptional and as
exceptional/outstanding in 2003 and 2005. And in 2003 she was named one of the best
managers in the Midwest. On the other hand, Glover’s overall performance in 2003 and
2004 was described as needs improvement/satisfactory, and during both reviews she was
told that she needed to improve her organizational skills and communicate better with staff
and clients. Glover showed improvement in 2005, and for that year her overall rating rose
to satisfactory/exceptional, but she still needed to improve her organizational skills.
Additionally, Becker had previously received high marks when she temporarily managed
the clinics in Elkhart and Muncie at the same time, but Glover had struggled when she was
given the additional task of managing the Warsaw clinic. Becker had earned a bachelor’s
degree in exercise science and an associate degree as a physical therapy assistant, while
Glover had only a high school diploma. Finally, Healthworks pointed out that, although
Glover was the only center manager terminated in the RIF, the company also terminated
two area managers, both of whom were over 40, and an area manager is similar to a center
manager but oversees more than one clinic.
Glover claimed that Healthworks’s reasons were pretextual and that she was in fact
fired because of her age. First, she contended that the company purposely
mischaracterized her performance record in order to paint her in a bad light. For example,
she asserted that her performance managing the Fort Wayne and Warsaw clinics was not
indicative of future performance because Healthworks assigned her to both clinics even
though they knew that the Fort Wayne clinic was growing and changing and needed her
there on a daily basis. Additionally, she said that Fort Wayne lost its biggest client because
the company closed, not through any fault of hers, and the resulting operating loss also was
not her fault because Foster did not allow her to budget for it. Additionally, she said her
mediocre performance reviews should not be held against her because at those times she
had to cover open positions at the clinic, positions that Foster did not let her fill. Finally,
No. 08-3531 Page 4
she asserted that area managers are different from center managers because an area
manager does more than just manage the clinics, leaving her as the only center manager to
be fired.
On appeal Glover argues that at summary judgment she presented enough
circumstantial evidence to create, under the direct method, a “convincing mosaic”
depicting intentional discrimination. Glover also contends that her evidence was sufficient,
under the indirect method, to make out a prima facie case and to refute as pretext the
assertion by Healthworks that she was let go because of the RIF.
The ADEA prohibits employers from terminating workers over 40 based on age, but
it does not protect older employees from being fired for legitimate reasons. See Cerutti v.
BASF Corp., 349 F.3d 1055, 1062 (7th Cir. 2003). An employee suing under the ADEA can
proceed using either the direct or indirect method of proof.
With the direct method, if the employee does not have what amounts to an
admission of discrimination, she may use circumstantial evidence creating a “convincing
mosaic” that points directly to a discriminatory reason for the decision. See Petts v.
Rockledge Furniture LLC, 534 F.3d 715, 720 (7th Cir. 2008). Circumstantial evidence could
include ambiguous statements by the decisionmaker about age, the decisionmaker’s
treatment of other employees over the age of 40, or other bits and pieces leading to an
inference of discriminatory intent. See Nagle v. Vill. of Calumet Park, 554 F.3d 1106, 1114 (7th
Cir. 2009); Henry v. Jones, 507 F.3d 558, 566 (7th Cir. 2007).
In contrast, the indirect method of proof, see McDonnell Douglas Corp. v. Green, 411
U.S. 792 (1973), requires the plaintiff to first establish a prima facie case of discrimination.
See Filar v. Bd. of Educ., 526 F.3d 1054, 1059-60 (7th Cir. 2008). Where, as here, the plaintiff
was an over-40 employee who was discharged as part of a RIF, she can make out a prima
facie case by presenting evidence that she was performing her job adequately, and yet her
job was eliminated and her duties absorbed by another employee under age 40. Hemsworth
v. Quotesmith.com, Inc., 476 F.3d 487, 492 (7th Cir. 2007). But even if the plaintiff satisfies
this initial burden, she must still overcome the employer’s reliance on the RIF as the basis
for her termination by raising an inference that the RIF really was pretext for covering up
age discrimination. See Rummery v. Ill. Bell Tel. Co., 250 F.3d 553, 556-57 (7th Cir. 2001);
Schuster v. Lucent Techs., Inc., 327 F.3d 569, 574-75 (7th Cir. 2003). In the context of a RIF,
however, “it is not pretextual to terminate an individual perceived to be a weak performer
in an organization even if that individual’s performance could also be characterized as
satisfactory or adequate.” Merrillat v. Metal Spinners, Inc., 470 F.3d 685, 694 (7th Cir. 2006).
No. 08-3531 Page 5
As a preliminary matter, Glover does not dispute that the RIF was economically
necessary. Her theory, instead, appears to be that Foster and Arnds chose to eliminate the
management job in Fort Wayne and then terminated her, rather than Becker, because of her
age.
As for the direct method, Glover cites the following as circumstantial evidence that
Foster and Arnds terminated her because of her age: (1) she was the oldest nonphysician
employee terminated in the RIF, (2) she was the only employee terminated in the Midwest
region, (3) she was the only center manager terminated out of 100 nationwide, (4) Foster
had mentioned “retirement” to her a few months before the RIF, and, (5) in her view, she
was just as qualified, if not more so, than Becker at running a clinic, but Foster set her up to
fail by preventing her from freely managing the clinic. The fifth point, however, is simply
Glover’s opinion, not a fact, and the remaining four points do not add up to proof of
discrimination.
Out of the 43 employees terminated in the RIF, 21 were under 40 and 22 were over
40 years of age. In light of the range of ages on the list, Glover needs to point to more than
her place near the top of the range. See Luks v. Baxter Healthcare Corp., 467 F.3d 1049, 1054
(7th Cir. 2006). Additionally, although Glover complains about being the only Midwest
employee terminated, she did not present any evidence about the employees who were
retained, who, for all we know, could be older than Glover. Being the only terminated
center manager also does not help Glover without more information about the center
managers that remained and how they and their clinics compared to Glover and her clinic.
And narrowly focusing on just center managers in the RIF or distinguishing between
physicians and nonphysicians obfuscates that a variety of positions, both professional and
nonprofessional, were included in the RIF and that Glover’s position does not stand out.
Furthermore, the inquiry is not whether Glover (or the judges on this panel) believes that
retaining her would have been a better choice. The question is whether Foster and Arnds
honestly believed that keeping Becker was the best decision, whether or not that decision
proved correct in the end. See Atanus v. Perry, 520 F.3d 662, 674 (7th Cir. 2008). And,
finally, the only reasonable inference arising from Foster’s comment about retirement is
that he wanted Glover to stay, not leave, and anyway, the comment was too remote in time
to infer that it played a role in the termination decision. See Hemsworth, 476 F.3d at 491;
Markel v. Bd. of Regents, 276 F.3d 906, 910 (7th Cir. 2002) (explaining that allegedly
discriminatory comments made two months before plaintiff was fired were too remote in
time to give rise to inference of discrimination).
Turning to the indirect method, Glover curiously emphasizes that her duties were
absorbed by a person under 40, but that fact has never been in dispute. The only element of
No. 08-3531 Page 6
the prima facie case questioned by the district court is whether Glover was performing up
to expectations, and the court resolved that issue in Glover’s favor. The real issue, then, is
whether Glover produced enough evidence to raise a jury question about the veracity of
Healthworks’s explanation that she was let go only because of the RIF. See Petts, 534 F.3d at
726. Regardless of the wisdom of the decision, all that matters is whether Foster and Arnds
honestly believed that Fort Wayne no longer should have its own manager and that Becker
was better suited to take on managing a second clinic. See id.Glover insists that the RIF was pretextual because, in her view, the only valid means
of accomplishing a RIF in this situation would be to eliminate the position of center
manager in every facility across the country. See Tubergen v. St. Vincent Hosp. & Health Care
Ctr., Inc., 517 F.3d 470, 472 (7th Cir. 2008) (noting that company’s RIF of every person
holding position of medical director, regardless of age, made it highly unlikely that age
played factor in decision to terminate plaintiff). This contention is frivolous. Healthworks
was not looking to revamp its business model; rather, it wanted to eliminate unnecessary
positions. To that end, it determined that Fort Wayne did not need its own manager, an
unsurprising decision given that only a short time before Glover had been assigned to
manage two clinics simultaneously.
Additionally, Glover argues that her performance was so good that the only reason
for her termination must have been age discrimination. But, “[i]n a reduction in force,
someone has to go.” Fairchild v. Forma Scientific, Inc., 147 F.3d 567, 573 (7th Cir. 1998).
Glover was not terminated for deficiencies in her performance; she was terminated because
Becker’s performance was believed better by Foster and Arnds. Her own evaluation of
their comparative worth does not create a genuine issue of material fact. See Petts, 534 F.3d
at 726.
Accordingly, we AFFIRM the grant of summary judgment for Healthworks.