Harris v. Hon. Robert Wilkie of Dod, Secretary of Department of Veterans Affairs

          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. ¶ 71.) Knight also discovered that at least one other candidate was a veteran, and another was a ...