United States District Court, D. Colorado
ORDER DENYING DEFENDANT'S MOTION TO DISMISS AND
MOTION FOR SUMMARY JUDGMENT
WILLIAM J. MARTÍNEZ UNITED STATES DISTRICT JUDGE
Plaintiff
Patricia Harris (“Harris”) sues the Honorable
Robert Wilkie, Secretary of the Department of Veterans
Affairs, in his official capacity (“the VA”),
alleging age discrimination in violation of the Age
Discrimination in Employment Act (“ADEA”), 29
U.S.C. §§ 621 et seq., and retaliation for
exercising her rights under that statute. (ECF No. 69.)
Currently
before the Court is the VA's Motion to Dismiss Claim
Three of the Third Amended Complaint (“Motion to
Dismiss”) (ECF No. 74) and the VA's Motion for
Summary Judgment (ECF No. 86). The issues raised in the
Motion to Dismiss are also addressed, with citations to
evidence, in the Motion for Summary Judgment. In this light,
it would be the height of formalism to address whether Harris
has properly pleaded a claim. Accordingly, the
Motion to Dismiss is denied as moot. And, for the reasons
explained below the Motion for Summary Judgment is denied,
this case remains set for trial, and that trial will be to
the Court, not a jury.
I.
LEGAL STANDARD
Summary
judgment is warranted under Federal Rule of Civil Procedure
56 “if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed.R.Civ.P. 56(a);
see also Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248-50 (1986). A fact is “material” if,
under the relevant substantive law, it is essential to proper
disposition of the claim. Wright v. Abbott Labs.,
Inc., 259 F.3d 1226, 1231-32 (10th Cir. 2001). An issue
is “genuine” if the evidence is such that it
might lead a reasonable trier of fact to return a verdict for
the nonmoving party. Allen v. Muskogee, 119 F.3d
837, 839 (10th Cir. 1997).
In
analyzing a motion for summary judgment, a court must view
the evidence and all reasonable inferences therefrom in the
light most favorable to the nonmoving party. Adler v.
Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir.
1998) (citing Matsushita Elec. Indus. Co., Ltd. v. Zenith
Radio Corp., 475 U.S. 574, 587 (1986)). In addition, the
Court must resolve factual ambiguities against the moving
party, thus favoring the right to a trial. See Houston v.
Nat'l Gen. Ins. Co., 817 F.2d 83, 85 (10th Cir.
1987).[1]
II.
FACTS
The
following factual assertions are undisputed for summary
judgment purposes, unless attributed to a party or otherwise
noted.
A.
Harris's Employment at the Denver CLC
Harris
is a registered nurse and held various jobs in the nursing
administration field from October 2006 to September 2015,
when she was hired as “Nurse Manager” at the
VA's Denver Community Living Center (“CLC”).
(ECF No. 88 at 15-17, ¶¶ 1-9.)[2] A CLC “is
the VA's equivalent of a skilled and long-term care
nursing facility.” (ECF No. 86 at 1, ¶ 2.)
Harris
was 67 years old when she began working as Nurse Manager at
the Denver CLC. (Id. at 2, ¶ 5.) At that time,
her most recent experience providing direct nursing care to
patients had been in 2007. (Id. ¶ 7.)
Harris's job responsibilities included “managing
the day-to-day operations of the Denver CLC, and managing the
unit's financial, human, material, and informational
resources.” (Id. ¶ 8.) She was also
responsible for “performance improvements and
documentation audits.” (Id. at 3, ¶ 11.)
B.
The December 2015 LTCI Audit
The
Denver CLC was subject to both state and federal regulation
by a number of oversight bodies and was also governed by
rules and policies promulgated by the VA itself.
(Id. at 2, ¶ 4.) In December 2015, a
“consulting agency” known as the Long Term Care
Institute (“LTCI”) conducted an unannounced audit
of the Denver CLC and identified four deficiencies that
needed correction: (1) failure to carry out certain
activities necessary to maintain good grooming; (2) failure
to ensure that residents received necessary treatment and
services to treat pressure ulcers; (3) failure to ensure that
that the resident environment was free from hazards (such as
fall hazards); and (4) failure to ensure that employees
adequately implemented the infection prevention and control
program. (Id. at 4-5, ¶¶ 27-29.) The
LTCI's deficiency findings triggered a requirement that
the Denver CLC address those deficiencies through
“action plans” that outlined the remedial steps
the facility would take. (Id. at 5, ¶ 30.) The
CLC was also required to demonstrate progress toward
correcting the deficiencies through regular, thoroughly
documented, internal audits. (Id. ¶ 31.)
C.
Piper Knight
In May
2016, the VA hired Piper Knight, also a registered nurse, to
be the Chief Nurse of Geriatrics and Extended Care for
several facilities in the VA's Eastern Colorado
Healthcare System, including the Denver CLC. (Id. at
3-4, ¶¶ 18-19, 22.) In this role, Knight became
Harris's direct supervisor. (Id. at 3, ¶
18.) Knight's duties included ensuring that each of the
programs she oversaw was in regulatory compliance and
prepared for unannounced site visits by oversight bodies.
(Id. at 4, ¶ 23.)
From
the outset, Knight treated Harris very poorly, including by
frequently criticizing her (at times in front of other staff
members), frequently speaking in a rude and demeaning way to
her, and speaking over her while she (Harris) was attempting
to speak to her staff. (ECF No. 88 at 26, ¶¶ 45,
47.) Harris says that Knight would provide Harris with
instructions but later deny having given such instructions,
and sometimes, later still, criticize Harris for failing to
follow those previously-disavowed instructions. (ECF No. 86
at 31, ¶ 261; ECF No. 88 at 20, 22, 25, ¶¶ 21,
31, 41, 43.) Harris further asserts that, by contrast, Knight
treated Harris's subordinates mostly respectfully. (ECF
No. 86-2 at 187-90.) Harris's staff was mostly under age
40, although “[m]aybe a third” were in their 40s
and one or two were in their 50s. (Id. at 191.)
In
September 2016, Harris complained about Knight to Keith
Harmon, whose title is “Nurse Executive, ” and
Harris believes she accused Knight of nonspecific
“discrimination.” (ECF No. 86 at 30, 33,
¶¶ 256, 276-78.) Harris says that on this occasion,
or perhaps on a second occasion, Harris's assistant
manager accompanied Harris to express similar concerns, but
Harmon seemed not to care. (See ECF No. 88 at 10.)
Knight
soon told Harris that she knew about the meeting with Harmon,
but she herself did not care. (ECF No. 86 at 33, ¶ 280.)
Knight continued to criticize and demean Harris.
(Id. ¶ 279.)
Around
this same time, Knight made several statements to Harris
about the Denver CLC and her intentions for it, including:
• she (Knight) had been hired “to fix the
CLC” which was “falling apart”;
• the Denver CLC looked good according to some metrics
but “she could dig and find issues”;
• she would “continue to micro manage until the
culture of the CLC changed”;
• “no one [at] the CLC respects her [Knight's]
authority”;
• she planned to “build her own team, this would
take about a year, but it will happen”; and
• “if the CLC closed, the staff would have jobs in
the hospital, and [Knight] would have a job because she
managed 3 other departments, but [Harris] would be out of a
job.”
(Id. at 29-30, ¶¶ 248-51, 254.) Harris and
Knight also had a conversation in “the fall of
2016” in which Knight told Harris “that she would
not be able to operate in the environment [Knight] was going
to create.” (Id. at 32, ¶ 269.) Knight
used the term “fast-paced” or
“dynamic” to describe that environment, although
Harris cannot remember precisely which of those terms Knight
used. (Id.)
D.
Harris's Potential Violation of Hiring Rules
In
early October 2016, Knight observed one of Harris's
immediate subordinates giving a tour of the Denver CLC to an
unknown individual. (Id. at 8, ¶ 60.) Knight
asked Harris who this person was, and Harris responded that
she was the daughter of one of the nurses in Harris's
unit, and someone whom she was interested in hiring
(“the Candidate”). (Id. ¶ 61.)
Harris said she had already contacted the relevant
nurse's union to see if the Candidate could be hired.
(Id. ¶ 62.)
Knight
then investigated further by accessing a computer program
known as “Selection Manager” that the VA uses for
tracking hiring decisions. (Id. at 9, ¶¶
63-64.) Knight discovered that Harris had already designated
the Candidate as “selected” in Selection Manager,
but there was no information or documentation supporting this
choice. (Id. ¶¶ 65-66.) Moreover, for
Harris to have hired someone on her own would have
contravened numerous VA procedures that required each
employment candidate to be scored according to a
“grid” of relevant factors and then interviewed
and further scored by a panel of staff members. (Id.
at 8, ¶¶ 54-59.)
Knight
asked Harris to turn over Harris's copies of the resumes,
references, interview notes, and hiring grids for all
candidates currently being considered. (Id. at 9,
¶ 67.) Only the Candidate's hiring grid had been
filled out. (Id. ¶¶ 68-69.) Although other
candidates had been interviewed, only the Candidate had been
given an interview score. (Id. ¶ 70.) Moreover,
Harris had written “selected” in the
“Notes” field for the Candidate's hiring
grid. (Id. ΒΆ 71.) Knight also discovered that
at least one other candidate was a veteran, and another was a
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