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Fired nurse-supervisor advances cat’s paw bias claims based on ageist remarks

By Joy P. Waltemath, J.D.

Although a 54-year-old supervisory nurse was fired at the end of her “introductory period” by the same actor who hired her 90 days earlier, and all the other nurse-supervisors with whom she worked were over 40 years old, her age discrimination and retaliation claims survived summary judgment on the strength of age-biased remarks made by the nurse supervising her. A federal district court in Mississippi ruled that given the fired nurse’s cat’s paw theory of liability—based on ageist remarks by her direct supervisor—the same actor inference was at best premature for summary judgment and at worst immaterial. It also found no fault with her use of the same or similar evidence to support a prima facie case to show pretext. Her retaliation claim survived summary judgment as well, as she showed that her complaint about the ageist comments to a clinical director who supervised her supervisor was protected activity, and there were factual disputes about circumstances that could show the decisionmaker (or the cat’s paw) knew about her protected activity. Timing was also suspect, said the court (Vaughan v. Anderson Regional Medical Center, October 4, 2018, Reeves, C.).

Ageist comments. After the 54-year-old nurse was hired by the VP of Nursing, she was one of 10 supervisors, all over age 40; four were older than she was and of the five who were younger, three were within five years of her age. During their first shift together, the nurse said that her supervisor made the following age-related comments: “Just how old are you?” “We need someone who isn’t as old as you are, you weren’t interviewed by us and they couldn’t ask you during the interview;” “Just because you have experience doesn’t mean you can do this job. It is pretty physical. Hope you can keep up;” and “I don’t know why Matt hired you. You’re pretty old to be a part of this team, and we needed someone younger.” The comments continued, the nurse claimed, over the next month, including her supervisor and another nurse telling her she was “kinda old and gray headed.”

Complaint. According to the nurse, she met with the clinical director over her supervisor the next day to complain. He allegedly replied “You just have to get to know [her], but I will talk to her. She probably doesn’t mean anything by it.” However, the nurse then was able to arrange her schedule so that she did not work with that supervisor again. Three weeks later (and two months into her 90-day “introductory period”), the nurse met with the hiring VP and the supervisor for a performance evaluation. Although the parties disputed what was discussed at the meeting, her evaluation report at the time displayed only “good” and “fair” scores under each category, including “attitude toward supervisor.”

Fired. Nonetheless, the nurse was fired at the end of 90 days; the medical center’s stated legitimate nondiscriminatory reasons were her alleged refusal to work cooperatively with other nursing supervisors, her persistent attempts to impose her former employer’s nursing practices, and her inability to accept constructive criticism and suggestions from other supervisors. She exhausted administrative remedies and sued under the ADEA for discrimination and retaliation, and her employer moved for summary judgment, which the court denied.

Stray remarks. Because it was undisputed the nurse was discharged, was qualified for the position, and was over 40 years old, the first issue was whether she was discharged because of her age as evidenced by her supervisor’s alleged age-related comments. Her employer argued that even if true, those comments were mere “stray remarks” insufficient to create an inference of age discrimination to defeat summary judgment. But citing Fifth Circuit precedent, the court looked as whether the comments showed discriminatory animus by a person either primarily responsible for termination or one with influence or leverage over the relevant decisionmaker. Although the VP was the ultimate decisionmaker, he assigned the nurse’s supervisor, and she reported the nurse’s work performance directly to the VP. Thus, these comments were not mere stray remarks.

Same-actor inference. The court also was unconvinced that the same-actor inference should apply here, even though the VP hired and then fired the nurse within 90 days. Looking at the evidence as a whole, and questioning whether the same-actor inference might be premature at the summary judgment stage, the court found that the cat’s paw theory advanced by the nurse rendered the same-actor inference immaterial. She averred that her supervisor exhibited age bias by her direct statements to that effect and that her supervisor had influence over the VP. In fact, she showed that the VP met with her only three times during her employment: when he hired her, during her 60-day evaluation, and when he fired her. His conclusions about her performance “could only reasonably be supported by reports” from that supervisor.

Pretext. Arguing that the employer’s first reason for firing her was false and pretext for age bias, the nurse noted that her lack of cooperation with other supervisors could only have come from reports to the VP from her purportedly biased supervisor, since he only met with her on those three occasions; during her 60-day evaluation, her supervisor was also present. Her written evaluation rebutted the contention that her “attitude towards supervisor” was inappropriate. The employer’s second reason, that she persistently attempted to impose her former employer’s nursing practices in her position was rebutted by the employer’s own evidence that she only mentioned her former employer’s practices twice—and once was allegedly during the 60-day evaluation, which the employee denied. At any rate, neither could be considered “persistent” or of an “imposing” nature, said the court. Finally, the rationale for firing her (her inability to accept constructive criticism) was something she also met with evidence of a positive performance evaluation.

Retaliation. Her retaliation claims also would advance, said the court. Although the employer said it had no record of any complaints by the nurse (HR so testified; the nurse asserted she had complained to the clinical director), the nurse argued that notes made by the VP about the 60-day review meeting—which she also contended he never spoke at the meeting—which said the VP told her that she should not “stir the pot” or “degrade or bad mouth Administration” could reasonably be interpreted as proof he knew of her complaints. Similarly, the supervisor’s assertion that her performance was poor at the time of termination, when that supervisor had not worked with her for over a month, could be considered evidence that the supervisor knew of the nurse’s complaint. Finally, a causal link could be shown, said the court, by the relatively short time (about six weeks) between the nurse’s complaint and her termination. Where her employer did not offer a legitimate, nondiscriminatory reason that explained the timing, nor any additional evidence to support the VP’s belief that the nurse’s performance was deficient other than reports from the allegedly biased supervisor, the nurse’s age discrimination and retaliation claims would not be dismissed on summary judgment.