MEMORANDUM OPINION AND ORDER GRANTING MOTION FOR SUMMARY JUDGMENT
BEFORE THE COURT is the Motion [51] for Summary Judgment filed by Defendant Singing River Health System in this Age Discrimination in Employment Act cáse. The issues have been fully briefed. After due consideration of the parties’ submissions and the relevant law, it is the Court’s opinion that Plaintiff Lay has failed to show there is a question of material fact regarding whether age was a factor in Singing River’s decision to terminate her employment. Accordingly, the Motion will be granted and this case dismissed.
Baokground
Lay was hired in 1999, when she was fifty years old, as Singing River’s Director of Managed Care. (Lay Dep. 7, 17, ECF No. 57-1). In 2014, news of Singing River’s serious financial difficulties was widely publicized on the Mississippi Gulf Coast. Singing River undertook a “plan to restructure the entire leadership team” in which “employees were laid off, positions were eliminated, and departments were restructured.” (Summerlin Aff. 1, ECF No. 54-1). ■
At the time, Lay reported to Chris Morgan, the Vice President of Clinical Integration. Morgan was informed by CEO Kevin Holland that Morgan’s department would have to be restructured. (Morgan Dep. 15, ECF No. 51-4). The decision to terminate Lay’s employment was made by Morgan, with assistance from human resources officer Craig Summerlin, (Sum-merlin. Dep, 16, ECF No. 51-5), and approval from Holland. (Morgan Dep. 17-19; Holland Dep. 13, ECF No. 57-7). Lay met with Morgan and Summerlin on April 22, 2014, when Morgan told her she was “going to have to retire.” (Lay Dep. 27). Sum-merlin explained to her that it would be “a good deal for me to wait until June to retire for the better payout or better benefits.” (Id. at 28-29). At the end of the meeting, she asked Morgan, ‘“Why are you doing this to me?’ and he said ‘We’re looking for people like you who can get the retirement .and make the high salary,’ ” (Id. at 28). Lay asserts that she did not understand that her position was going to be terminated when Morgan told her she was going to have to retire. A few days later, Morgan sent an email to the rest of the department announcing Lay’s retirement. (PI. Resp. Ex. 13, ECF No. 57-13). Lay sent Morgan á memo almost two weeks later, stating that she was not willing to retire. (PI. Resp. Ex. 14, ECF No. 57-14). Lay does not remember having any discussions with Morgan or Summerlin about the memo, (Lay Dep. '43), and her retirement was effective on June 13, 2014.
Morgan’s position was also slated for elimination, and he began working for another employer shortly before Lay’s last day in June. (Morgan Dep. 7-8, 10, 33). Holland gave Morgan and Lay’s job functions to Chief Financial Officer Lee Bond, who “divvied up some of the role’’ to Brian Argo, Executive Director of Finance, and a number of employees who were previously in Lay’s department. (Holland Dep. 19-10; Bond Dep. 31, 33-34, ECF No. 57-8). Bond also incorporated some of Lay’s job functions into a new “Director of Collaborative Care Netwoi-k” position. (Bond Dep. 28). Lay did not apply for the position because of the requirement for a master’s degree,
Lay filed a charge of age discrimination with the Equal Employment Opportunity Commission and received a Notice of Right to Sue. (Compl. Ex. A, B, ECF Nos. 1-1,1-2). This lawsuit followed.
Discussion
Under the ADEA, an employer cannot “discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s age.” 29 U.S.C. § 623(a)(1); see also Rachid v. Jack In The Box, Inc.,
A party that establishes a prima facie case of age discrimination “raises an inference of unlawful discrimination.” Nichols v. Loral Vought Sys. Corp.,
1. Lay’s Prima Facie Case
The parties set out and argue the prima facie elements for a standard ADEA discrimination claim involving termination. However, Lay was clearly terminated as part of a reduction-in-force, and therefore the Court applies the Fifth Circuit’s slightly different prima facie elements for a reduction-in-force case. This requires a party to make out a prima facie case of age discrimination by showing “(1) that he is within the protected age group; (2) that he has been adversely affected by the employer’s decision; (3) that he was qualified to assume another position at the time of the discharge; and (4) ‘evidence, circumstantial or direct, from which a fact-finder might reasonably conclude that the employer intended to discriminate in reaching the decision at issue.’” Nichols,
A prima facie case “is fairly easily made out.” Amburgey,
2. Singing River’s Reasons For Its Decision And Pretext
Singing River has articulated a legitimate, non-discriminatory reason for its
In an effort to demonstrate that the reduction in force was a pretext for age discrimination, Lay points first to the fact that her termination was in the form of a forced retirement, arguing that “telling a person that they must retire is, evidence of age discrimination.” (PL Mem. 17, EOF No. 56). However, the Fifth Circuit has stated that “[t]he word ‘retire,’ does not, by its very use,” establish that age was a motivating factor in termination. Martin v. Bayland, Inc.,
Next, Lay argues that she was an excellent employee. In the context of a reduction In'force, the fact that an employee is qualified for his job is less relevant, as some employees may have to be let go despite competent performance. Walther v. Lone Star Gas Co.,
Lay also asserts that Singing River did not save money by eliminating her position, and there were other options it could have taken, “such as eliminating younger directors whose departments were losing money ... or an across the board pay cut....” (PL Mem. 19, ECF No. 56). Lay can not raise an issue of pretext by questioning Singing River’s business judgment about the best way to manage its financial crisis. LeMaire v. La. Dep’t of Transp. & Dev.,
The ADEA was not intended to be a . vehicle for judicial second-guessing of employment decisions nor was it intended to transform the courts into personnel managers. The ADEA cannot protect older employees from erroneous or even arbitrary personnel decisions, but only from decisions which are unlawfully motivated.
Moss v. BMC Software, Inc.,
Lay next states that she told Elaine Hiers, the retirement specialist in the human resources department, that she was being let go because of her age. Hiers responded that she sees that all the time. Lay contends this is an admission of a party opponent and therefore admissible evidence of pretext. Lay does not contend that Hiers was involved in the decisión to terminate her employment.
The applicable rule excludes from the definition of hearsay a statement “offered against an opposing party ... made by the party’s agent or employee on a matter within the scope of that relationship and while it existed.” Fed. R. Evid. 801(d)(2). Where alleged statements concern an employee’s termination, the declarant must have been involved in the decision to terminate the employee. See Ramirez v. Gonzales,
Next, Lay asserts that “of the ninety-seven (97) employees let go, almost two-thirds was over the age of forty (40).” (PI. Mem. 19, EOF No. 56). The Fifth Circuit has explained that such statistical evidence usually cannot rebut the employer’s articulated nondiscriminatory reasons.
[Gjross statistical disparities resulting from a reduction in force or similar evidence may be probative of discriminatory intent, motive or purpose. Such statistics might in an unusual case provide adequate circumstantial evidence that an individual employee was discharged as part of a larger pattern of layoffs targeting older employees. This is not to say that such statistics are enough to rebut a valid, nondiscriminatory reason for discharging a particular employee. Generally, they are not.... [PJroof of pretext, hence of discriminatory intent, by statistics alone would be a challenging endeavor.
Tex. Instruments Inc.,
Lay simply attaches a list of the ninety-seven terminated employees with associated identifiers such as job title, age, race, sex and years.of service. (PI. Resp. Ex. 20, ECF No. 57-20). However, there is no similar information about the population from which this list was generated. Without some indication that there is a “gross statistical disparity” between the entirety of the pool of Singing River employees and the employees selected for the reduction in
Lay next attempts to show a culture or pattern of discriminating against older workers through evidence of two other employees. The first is fifty-year-old Sandra Murray, who was the interim IT director for two years, but not selected for the permanent IT director position. Murray complains that the decision maker, Larry Shoemaker, promoted a younger male into the position instead. (Murray Dep. 20, ECF No. 57-21). The second is sixty-nine-year-old Hattie Williams, who worked part time as a benefits specialist in the human resources department. Her supervisor, Craig Summerlin, eliminated her position in the reduction in force. (Williams Dep. 9, ECF No. 57-23).
In the Fifth Circuit, attempting to show pretext through an employer’s treatment of employees in the same protected group requires that the comparators be similarly situated.
Anecdotes about other ' employees' cannot establish that discrimination was a company’s standard operating procedure unless those employees are similarly situated to the plaintiff. This court and others have held that testimony from former employees who had different supervisors than the plaintiff, who worked in different parts of the employer’s company, or whose terminations were removed in time from the plaintiffs termination cannot be probative of whether age was a determinative factor in the plaintiffs discharge,
Wyvill v. United Cos. Life Ins. Co.,
Finally, Lay attempts to show pretext .through certain age- and gender-based comments purportedly made by Holland. Lay presented deposition testimony from Windy Taylor, in which Taylor related comments Holland made sometime in 2005,
Assuming Holland, as CEO, was a decision-maker regarding Lay’s termination, his remarks can be probative of discriminatory conduct if there is other evidence of pretext. See Palasota v. Haggar Clothing Co.,
Without other evidence of pretext, the Court cannot consider Holland’s comments, almost ten years past, to be evidence of - discrimination. See Bugos,
Conclusion
Lay has failed to provide competent summary judgment evidence supporting her allegations that Singing River Health System terminated her employment because of age. Because Singing River has shown there is' no question of material fact for the jury, summary judgment should be granted and this case dismissed.
IT IS THEREFORE ORDERED AND ADJUDGED that the Motion [51] for Summary Judgment filed by Singing River Health System is GRANTED. Plaintiffs claims are DISMISSED.
SO ORDERED AND ADJUDGED this the 2nd day of June, 2016.
Notes
, Ms. Taylor worked as an administrative assistant for Holland from 2005 until 2014. Although she references several instances during that period when he commented negatively about women over 40, she generally did not testify about the dates the comments were made.