ROBERTO A. LANGE, District Judge.
Plaintiff Diane Wade (Wade) filed a Complaint against Defendant Sanford Medical Center (SMC) alleging violations of the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 621 et seq., (Count I), hostile work environment in violation of Title VII (Count II), intentional infliction of emotional distress (Count III), negligent infliction of emotional distress (Count IV), and punitive damages (Count V). Doc. 1. SMC moved for summary judgment, Doc. 14, which Wade opposed, Doc. 24. For the reasons explained below, this Court grants SMC's motion for summary judgment.
Wade began her career with SMC on August 8, 1991, when SMC was known as Sioux Valley Hospital. Doc. 15 at ¶ 1; Doc. 26 at ¶ 1. SMC terminated Wade's employment on September 18, 2014, when Wade was 54 years old. Doc. 15 at ¶¶ 2, 6; Doc. 26 at ¶¶ 2, 6. At the time of her termination, Wade was the lead pediatric cardiac ultrasound sonographer in the pediatric unit, but was dually certified to work in both the pediatric and adult cardiac sonography units. Doc. 15 at ¶¶ 3, 5; Doc. 26 at ¶¶ 3, 5. Wade also was a formal preceptor in the pediatric unit whereby she received additional compensation when she was training new employees, a position which required Wade to undergo additional training. Doc. 15 at ¶ 4; Doc. 26 at ¶ 4.
SMC has an Attendance and Punctuality policy which outlines the expectations for employees of SMC with respect to their attendance and punctuality. The policy states that "[e]mployees have the personal responsibility to ensure that they are at their work station and are ready to work at the starting time of their assigned shift. Reliable and consistent attendance is required for job performance success." Doc. 15 at ¶ 9; Doc. 16-10 at 1. The Attendance and Punctuality policy further establishes that when "an employee does not meet the attendance expectations outlined, they will be subject to the progressive discipline process" and directs employees to reference the Discipline policy. Doc. 16-10 at 3. SMC's progressive discipline procedure begins with an informal process consisting of communication with the employee by the manager, requiring no documentation or involvement of the Human Resources Department. Doc. 16-11 at 2. If attendance and punctuality problems persist, the process progresses from verbal reminders to written warnings, and then to Decision Making Leave (DML) prior to involuntary termination.
During her annual evaluation in May of 2008, Wade's supervisor—at that time Tom Denevan—spoke with Wade about her tardiness and the expectation that SMC employees be clocked in and prepared to work at the start of their scheduled shift.
Wade received a written warning on December 9, 2008, which raised punctuality and productivity concerns. Doc. 15 at ¶ 13; Doc. 26 at ¶ 13; Doc. 16-8 at 28-29. The warning stated that Wade had a tardiness percentage of 80 percent for the 46 in-house shifts for which she was scheduled from September 20 to December 9, 2008. Doc. 15 at ¶ 14; Doc. 26 at ¶ 14. The documents warned Wade that failure to comply with SMC's Attendance and Punctuality policy would result in further disciplinary action. Doc. 15 at ¶ 15; Doc. 26 at ¶ 15. However, in Wade's 2009 annual evaluation her supervisor noted that "Diane['s] attendance is much improved meeting supervisor[']s expectations since our 12/09/08 discussion." Doc. 26 at ¶ 14; Doc. 28-3; Doc. 30-5 at 6. In that evaluation, Wade received a rating of "Exceeds Expectations" or "Outstanding Performance" in every category for which she was rated. Doc. 30-5 at 1-5.
Wade received a second written warning concerning punctuality and productivity on October 28, 2009.
Sandra Josko (Josko) became the Cardiovascular Services (CVS) diagnostic manager in the summer of 2011. Doc. 15 at ¶ 20; Doc. 26 at ¶ 20. As CVS manager, Josko supervised the adult and pediatric cardiac sonography units, making her Wade's direct supervisor as of the summer of 2011 until Wade's termination in 2014. Doc. 15 at ¶¶ 7, 20, 22; Doc. 26 at ¶¶ 7, 20, 22. Josko managed the staff and created the schedules for both the adult and pediatric cardiac sonography units. Doc. 15 at ¶ 22; Doc. 26 at ¶ 22.
Josko spoke with Wade regarding her tardiness percentage for the pay period from November 27 through December 10, 2011. Doc. 15 at ¶ 23; Doc. 26 at ¶ 23. Josko's later email to Wade stated that Wade was late for every shift during that pay period, and for shifts during the prior pay period as well. Doc. 16-8 at 40. However, the tardiness percentage for this time period was recorded at 75 percent in later documentation.
Wade had another conversation with Josko and other supervisors in November of 2012 regarding her tardiness percentages during several previous pay periods. Doc. 15 at ¶ 24; Doc. 26 at ¶ 24. According to SMC business records, Wade had a tardiness percentage of 50 percent from November 19 through November 30; 0 percent for the 2 shifts worked between November 5 and November 16; 80 percent from October 22 through November 1; 50 percent from October 8 through October 19; 40 percent from September 24 through October 5; and 0 percent for the two shifts worked between September 17 and September 21.
On December 5, 2012, Wade was placed on a DML. Doc. 16-8 at 22-23. The DML paperwork stated that "[Wade] has not followed Sanford's guidelines for Punctuality. [Wade] has had many verbal conversations as well as Written Warnings regarding her tardiness. Her tardiness continues to fall outside of Sanford's expectations." Doc. 16-8 at 22. The DML further directed that Wade was to present an action plan when she returned on December 6, 2012, detailing how she would commit to meeting performance expectations or resign her position. Doc. 16-8 at 22. The final paragraph of the DML stated that "[t]his is the final step in the discipline process. If you commit to staying in your position, you need to commit to fully acceptable attendance and punctuality. Failure to meet the Sanford expectation of performance will result in termination of your employment." Doc. 16-8 at 23. The DML documentation was signed by Wade, Josko, and a representative from Human Resources. Doc. 16-8 at 23. Wade also hand wrote an action plan, dated December 5, 2012, indicating she would leave for work 15 minutes earlier and would contact Josko in the event she was delayed on her way to work. Doc. 16-8 at 24.
Wade left her shift on December 31, 2012, to attend a personal appointment and rescheduled a patient appointment to do so. Doc. 15 at ¶¶ 37-38; Doc. 26 at ¶¶ 37-38. Josko emailed Wade to explain that, because Wade left her shift without prior management approval, her absence would be documented as an unapproved absence, and attached portions of the Attendance and Punctuality policy which establish that employees "must receive prior authorization from their supervisor before leaving Sanford premises during their scheduled work hours." Doc. 16-8 at 50;
On July 30, 2014, Wade submitted a Paid Time Off (PTO) request for September 10 through September 15, 2014. Doc. 15 at ¶ 43; Doc. 26 at ¶ 43. Pediatric cardiac sonographers at SMC are able to submit PTO requests up to six months in advance. Doc. 15 at ¶ 42; Doe. 26 at ¶ 42. Wade requested the PTO to go on a trip with her husband, and her husband had purchased the airline tickets for the trip prior to Josko's August 19, 2014 response to Wade's PTO request. Doc. 15 at ¶¶ 44-45; Doc. 26 at ¶¶ 44-45. On that day, Josko emailed Wade to inform her that she could not grant Wade's request for PTO on September 12, stating that another pediatric sonographer, Sarah Bohnenberger (Bohnenberger), had requested PTO for that same date prior to Wade's request. Doc. 15 at ¶ 46; Doc. 26 at ¶ 46. There were two pediatric cardiologists scheduled to see patients at Sanford Children's Hospital on September 12, 2014, and SMC's policy was to have two pediatric cardiac sonographers available to scan patients on such days. Doc. 15 at ¶¶ 47-48; Doc. 26 at ¶¶ 47-48. SMC required a total of four pediatric cardiac sonographers on September 12, 2014, because in addition to the two required at the Children's Hospital, SMC policy required one sonographer to be on call to cover the hospital and neonatal intensive care unit and an additional sonographer was needed to cover an athletic screening scheduled on that same date. Doc. 15 at ¶¶ 49-50; Doc. 26 at ¶¶ 49-50. At the time Josko denied Wade's request for PTO, SMC employed a total of five pediatric cardiac sonographers. Doc. 15 at ¶ 50; Doc. 26 at ¶ 50.
Wade responded to Josko's email on August 20, 2014, stating "I will start working on it[,] I already have plane tickets." Doc. 15 at ¶ 51; Doc. 26 at ¶ 51. Josko responded that "[t]here are no options for staff. I have a screening scheduled and there is double clinic in the am." Doc. 15 at ¶ 52; Doc. 26 at ¶ 52. Wade contacted Bohnenberger and requested that she cover Wade's shift on September 12, and Bohnenberger indicated she would be willing to do so if she would be allowed to leave during her shift to attend an appointment scheduled for the morning of September 12. Doc. 15 at ¶¶ 53-54; Doc. 26 at ¶ 53-54. After Josko informed Bohnenberger that it was not guaranteed that she would be permitted to leave during her shift, Bohnenberger informed Wade that she could not cover the September 12 shift. Doc. 16-8 at 44.
On August 21, 2014, Wade emailed the other pediatric cardiac sonographers regarding the schedule for September 12. Doc. 16-8 at 49. Wade indicated that she would ask the physicians if Rochelle Boone (Boone), who was still training as a pediatric cardiac sonographer, could do the athletic screening on her own and whether the remaining two sonographers, Ashley Hargreaves (Hargreaves) and Jackie Salzwedel (Salzwedel) would be all right if the two of them were left to cover the double clinic and "inhouse" if the physicians approved. Doc. 15 at ¶ 74; Doc. 16-8 at 49. Pediatric cardiac sonographers often emailed their peers with requests to change the schedule to cover call. Doc. 15 at ¶ 57; Doc. 26 at ¶ 57.
Bridget O'Brien Johnson, at the time Bridget Rients, (Johnson), was Josko's direct supervisor in August of 2014. Doc. 15 at ¶ 8; Doc. 26 at ¶ 8. When Johnson learned of Wade's email, Johnson emailed Human Resources to express concerns that Wade had not included Josko or Johnson on the email to inform them of any such plan; that Boone was still in orientation and the physicians had stated that she could not go on screenings; and that having only two sonographers to cover the Children's Hospital as well as the hospital and neonatal intensive care unit would limit staffing and cause delays, compromising patient care. Doc. 16-8 at 48.
Wade emailed Johnson on September 5, 2014, to inform her that she would not be at work during her shift scheduled for September 12. Doc. 16-8 at 44. Johnson responded on September 8, requesting that Wade and Johnson "touch base" with Josko sometime that day. Doc. 16-8 at 44. Wade emailed Johnson back that afternoon, stating she had been busy in clinic that day and had not yet been able to reach Josko, but would attempt to call her again that day. Doc. 16-8 at 43. Johnson emailed Josko on September 9 regarding the plan for the September 12 shift and inquired whether Wade and Josko had communicated the previous day. Doc. 16-8 at 43. Josko responded to Johnson's email, stating:
Doc. 16-8 at 43. Wade did not work her scheduled shift on September 12, 2014. Doc. 15 at ¶ 70; Doc. 16-13.
Josko sent an email to the pediatric cardiac sonographers on September 3, 2014, which stated that "[d]uring this time—all staff on back up call with [Boone] will need to come in to the hospital when she does. You will need to follow call expectations of 30 minutes bedside after receiving a page." Doc. 16-8 at 51. On September 16, 2014, Wade was on back up call with Boone, who was in training and not off orientation. Doc. 15 at ¶ 74; Doc. 26 at ¶ 74. When Boone contacted Wade on September 16 informing Wade that they had been called to the emergency room, Wade asked Boone if Boone wanted her to come in. Doc. 15 at ¶ 75; Doc. 26 at ¶ 75. Boone did not ask Wade to come in, thus Wade did not accompany Boone to the hospital. Doc. 15 at ¶ 77; Doc. 26 at ¶ 77. When Josko questioned Wade on September 17, 2014, as to why she did not accompany Boone, Wade stated that she had not gotten caught up on her emails since being on vacation and was unaware of Josko's directive to accompany Boone. Doc. 15 at ¶ 78; Doc. 26 at ¶ 78.
Josko prepared and submitted to Human Resources documentation regarding Wade's missed shift on September 12 and decision not to accompany Boone on September 16. Doc. 15 at ¶ 87; Doc. 26 at ¶ 87. Wade's situation was discussed by Johnson; Patsy Kramer (Kramer), a Human Resources Advisor at SMC; Karla Haugan (Haugan), the vice president of Human Resources at SMC; Kathryn Schuler (Schuler), a vice president at SMC; and Robin Burnley (Burnley), the Director of Human Resources at SMC. Doc. 16-8 at 53-57. Kramer forwarded the documentation prepared by Josko to the group via email on September 17, 2014, asking whether each individual supported termination or a second DML for Wade. Doc. 16-8 at 53. Kramer's email mentions that "[w]e have had a couple other situations within Sanford in which we gave the employees an additional DML if time had passed since the previous. In the two situations that I reviewed there was about 2 years between the two DMLs for the employees."
Doc. 16-8 at 53. Haugan declined to support either option, stating:
Doc. 16-8 at 55. Johnson supported termination, stating:
Doc. 16-8 at 56. Finally, Burnley also supported termination, stating:
Doc. 16-8 at 56.
Kramer notified Josko that the decision had been made to terminate Wade. Doc. 15 at ¶ 89; Doc. 26 at ¶ 89. On September 18, 2014, Wade was informed that she was being terminated. Doc. 15 at ¶ 84; Doc. 26 at ¶ 84. Kramer, Josko, and Johnson were present at the time Wade was informed of her termination, and Kramer and Johnson both signed Wade's termination paperwork. Doc. 15 at ¶ 84; Doc. 26 at ¶ 84. Wade also signed the termination paperwork and provided a handwritten response; Wade's response did not assert that her termination was connected to age discrimination, though she did write that "rules seem to be different for everyone in [Josko's] department." Doc. 16-13 at 3. After Wade was terminated, she was asked to "go to her car." Doc. 15 at ¶ 84; Doc. 26 at ¶ 84. During his deposition, Wade's husband, Doug Wade (Doug), testified that after her termination Wade did not leave the house for a week, was disorganized, and cried more often than usual. Doc. 15 at ¶ 209; Doc. 26 at ¶ 209.
A week after her termination, Wade attended an annual examination with her primary care physician, Dr. Sherri Bostwick (Bostwick). Doc. 15 at ¶¶ 182-83; Doc. 26 at ¶¶ 182-83. During that examination, Wade reported that she "has generally been very healthy." Doc. 15 at ¶ 184; Doc. 26 at ¶ 184. Wade also informed Bostwick of a number of things regarding her health: that she had no chronic medical conditions and took only over-the-counter medications and vitamins; that she had no unexpected changes in weight or fatigue, no abdominal pain or changes in bowel habits, no significant change in appetite, and no nausea, vomiting, diarrhea or constipation; and finally that she did not have chronic headaches nor did she have depression or anxiety. Doc. 15 at ¶¶ 185-87; Doc. 26 at ¶¶ 185-87. Bostwick documented that Wade's blood pressure was normal and that Wade appeared "alert, well appearing, and in no distress." Doc. 15 at ¶¶ 188-89; Doc. 26 at ¶¶ 188-89. Wade also reported that she was not having pain anywhere. Doc. 15 at ¶ 191; Doc. 26 at ¶ 191. At the beginning of the September 25, 2014 examination, one of Bostwick's nurses completed with Wade a Behavioral Health Screening-6 (BHS-6). Doc. 15 at ¶ 192; Doc. 26 at ¶ 192. During the BHS-6, Wade was asked whether over the previous two weeks she had: felt little interest or pleasure in doing things; felt down, depressed, or hopeless; felt nervous anxious, or on edge; or not been able to stop or control worrying. Doc.15 at ¶¶ 193-96; Doc. 26 at ¶¶ 193-96. According to the BHS-6 report, Wade responded "not at all" to each of these questions. Doc.15 at ¶¶ 193-96; Doc. 26 at ¶¶ 193-96.
During Wade's annual examination with Bostwick in November of 2015, Wade reported the same lack of any health problems and responded to the BHS-6 in the same manner as during her September 25, 2014 examination. Doc. 15 at ¶¶ 197-208. Since her termination, Wade has not sought professional treatment or assistance for anxiety, depression, difficulty sleeping, or headaches, nor has she been prescribed medications for any such condition. Doc. 15 at ¶¶ 180-81; Doc. 26 at 180-81. During her deposition, Wade testified that she was not seeking treatment for these conditions because "I didn't want to be tagged with anything. I'm—like I said, I'm a private person. It was a new doctor. These are not things I wanted to talk about." Doc. 16-1 at 14.
Wade filed a complaint with the Equal Employment Opportunity Commission (EEOC) in March of 2015, alleging that she was unlawfully terminated due to her age. Doc. 15 at ¶ 93; Doc. 26 at ¶ 93. Wade claims that Josko was the only person to discriminate against her, and has not claimed that any other Sanford employee harassed or discriminated against her. Doc. 15 at ¶¶ 136-37; Doc. 26 at ¶¶ 136-37. The EEOC mailed a dismissal and notice of suit rights to Wade and SMC on May 18, 2016, stating that it was "unable to conclude that the information obtained establishes violations of the statutes." Doc. 15 at ¶ 178; Doc. 26 at ¶ 178.
SMC adheres to a written Anti-Discrimination and Harassment policy, and Wade was aware of this policy. Doc. 15 at ¶¶ 120-21; Doc. 16-12; Doc. 26 at ¶ 121. Wade completed online training titled "Understanding Workplace Diversity, Harassment and Discrimination" on an annual basis which reviewed this policy on harassment and discrimination, including how to report discrimination or harassment. Doc. 15 at ¶¶ 125-27; Doc. 26 at ¶¶ 125-27. Wade did not complain or report to any person at SMC that she felt Josko was discriminating against her on the basis of her age. Doc. 15 at ¶ 124; Doc. 26 at ¶ 124.
SMC has a policy of having one pediatric cardiac sonographer on call every evening, weekend, and holiday. Doc. 15 at ¶ 170; Doc. 26 at ¶ 170. As a pediatric cardiac sonographer, Wade's duties included covering call. Doc. 15 at ¶ 170; Doc. 26 at ¶ 170. The call schedule was typically set at the beginning of the year, and after Josko had set the call schedule for calendar year 2014, Wade's daughter and her fiancé (now husband) scheduled their wedding on a weekend in August of 2014 when Wade was not scheduled to be on call. Doc. 15 at ¶¶ 171-72; Doc. 26 at ¶¶ 171-72. Subsequent to Wade's daughter scheduling her wedding for the weekend in August of 2014, two pediatric cardiac sonographers left the department, requiring the call schedule to be revised to provide for complete call coverage for the calendar year. Doc. 15 at ¶ 173; Doc. 26 at ¶ 173. When Josko revised the schedule, she scheduled Wade to cover an athletic screening on the day of her daughter's wedding, though Wade was able to work with her colleagues to switch coverage and attended the wedding. Doc. 15 at ¶ 174; Doc. 26 at ¶ 174.
Ashley Hargreaves was a pediatric cardiac sonographer working in the pediatric cardiac sonography unit at SMC in the summer of 2014. Doc. 15 at ¶ 100; Doc. 26 at ¶ 100. Hargreaves had been employed at Sanford as a pediatric cardiac sonographer since March 10, 2003, and was under 40 years old in the summer of 2014. Doc. 15 at ¶¶ 99, 115; Doc. 26 at ¶ 112. On May 2, 2014, Hargreaves emailed Josko requesting PTO for a period which included June 23 through June 27, 2014. Doc. 16-9 at 10. Josko responded to Hargreaves, informing Hargreaves that another employee already had vacation that week, and asked if Hargreaves could work on June 26 and 27, 2014. Doc. 16-9 at 10. Hargreaves emailed Josko again on May 27, 2014, asking whether Josko could grant her PTO request for June 26 and 27, indicating that two physicians would be on vacation at that time. Doc. 16-9 at 11-12. Josko responded the following day and informed Hargreaves that her PTO request could not be accommodated. Doc. 16-9 at 11. Hargreaves emailed Josko back later that day indicating that Hargreaves's husband had already purchased plane tickets. Doc. 16-9 at 11. Josko emailed Hargreaves back, explaining that one sonographer's vacation was already approved and two others were committed to a screening. Doc. 16-9 at 11. Hargreaves inquired as to whether the screenings could be rescheduled but Josko indicated that "[W]e are committed to the screening on this date." Doc. 16-9 at 11, 42. Hargreaves emailed Josko again on June 10, 2014, in an attempt to propose ideas that would allow her PTO request to be accommodated, but was unsuccessful. Doc. 16-9 at 41-42.
According to Josko, Hargreaves called Josko on June 25, 2014, to call in ill for her shift on June 26. Doc. 16-9 at 16, 40. Josko reported that Hargreaves was still in Tennessee and had not purchased a plane ticket home and that Hargreaves reported her son and husband were both throwing up, necessitating her presence. Doc. 16-9 at 40. Hargreaves was issued a written warning on July 11, 2014, for missing her June 26, 2014, shift. Doc. 16-9 at 14-16. Hargreaves's July 11 written warning documents three prior verbal warnings regarding Hargreaves's attendance and punctuality, specifically on December 17, 2013, January 2, 2014, and March 26, 2014. Doc. 16-9 at 14. Hargreaves was required to complete skill builders and submit certificates of completion to Josko as well. Doc. 16-9 at 16. Hargreaves provided a written response which severely criticized Josko's management and record keeping. Doc. 16-9 at 17-19. Hargreaves contended that Josko treated employees differently based on whether Josko liked or disliked that employee. Doc. 16-9 at 19. When Hargreaves voluntarily resigned her position with Sanford on January 6, 2016, she completed an exit survey and again criticized Josko's management. Doc. 15 at ¶¶ 117-18; Doc. 16-19 at 9.
Before Wade's termination on September 18, 2014, some of the pediatric cardiologists complained to Human Resources about Josko's management of the pediatric cardiac sonography unit. Doc. 15 at ¶ 131; Doc. 26 at ¶ 131. At least one pediatric cardiologist complained directly to Josko regarding her management of the department. Doc. 15 at ¶ 132; Doc. 26 at ¶ 132. In addition, the pediatric cardiologists have complained to their clinic director regarding Josko's management of the department. Doc. 15 at ¶ 133; Doc. 26 at ¶ 133. After Wade was terminated, at least one pediatric cardiologist expressed concern that losing a skilled pediatric cardiac sonographer such as Wade would hinder Sanford's ability to provide adequate coverage for pediatric cardiac patients. Doc. 15 at ¶ 134; Doc. 26 at ¶ 134. One pediatric cardiologist, after Wade was terminated, expressed disagreement with the decision to terminate Wade as she was a skilled pediatric cardiac sonographer, indicated that Josko was a "bad manager," and expressed an uncertainty as to why Sanford would terminate a skilled technician for a policy violation. Doc. 15 at ¶ 135; Doc. 26 at ¶ 135.
Under Rule 56(a) of the Federal Rules of Civil Procedure, summary judgment is proper when "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). On summary judgment, the evidence is "viewed in the light most favorable to the nonmoving party."
The ADEA forbids discrimination against employees, age forty and over, because of their age. 29 U.S.C. §§ 623(a)(1), 631(a). To prove her claim under the ADEA, Wade must show by a preponderance of the evidence that age was the "but-for" cause of the adverse employment action.
The Eighth Circuit has explained that direct evidence in this context "is not the converse of circumstantial evidence . . . [but] is evidence showing a specific link between the alleged discriminatory animus and the challenged decision, sufficient to support a finding by a reasonable fact finder that an illegitimate criterion actually motivated the adverse employment action."
Wade argues that she has presented direct evidence of discrimination on the part of Josko with evidence of: 1) Wade's history of positive annual performance evaluations; 2) Josko's treating younger sonographers more favorably than Wade; 3) Josko "setting Wade up" prior to the missed shift on September 12, 2014, by indicating that Wade did not need to worry about the absence; and 4) cardiologists' concern about Josko's management of the CVS department. Doc. 24 at 13. None of this constitutes direct evidence of discrimination because a fact finder would be required to infer from this evidence that age was the motivating factor behind Wade's termination.
The annual performance evaluations indicate Wade was an able cardiac sonographer who was often praised for her technical skills, but they do not provide "evidence of a discriminatory attitude" on the part of Josko or a "discriminatory animus in the decisional process" to terminate her employment.
Doc. 16-1 at 25. Allegations that Josko treated Wade differently than other employees but did not make discriminatory comments toward Wade do not "clearly point to the presence of an illegal motive" behind Wade's termination.
Wade also alleges that Josko made comments about Wade's higher salary. Doc. 16-1 at 26-27; Doc. 28 at ¶ 30. Wade testified during her deposition that Josko twice commented that Wade was paid a higher salary than Josko, one comment being made prior to Josko becoming Wade's supervisor. Doc. 16-1 at 26-27. Wade does not allege that either comment was made in connection with the decision to terminate her employment, so such comments do not constitute direct evidence of discrimination.
Likewise, Wade's allegations that Josko set her up are not direct evidence of age discrimination. During her deposition, Wade testified that when she asked Josko about the consequences of missing the September 12, 2014 shift, Josko told Wade "it would be considered an unexcused absence, and [Josko] said, [']but you don't miss much work, don't worry about it.['] There was no talk about disciplinary action." Doc. 16-1 at 20. Viewing the facts in the light most favorable to Wade, this Court assumes Josko did tell Wade "not to worry about it" prior to Wade missing her September 12, 2014 shift. However, Josko telling Wade not to worry about an unexcused absence, and Wade subsequently being terminated, does not establish that Josko was motivated by an age-based discriminatory animus. Once again, a fact finder would have to infer the motive for Josko's actions, and when evidence requires such an inference it does not constitute direct evidence of discrimination.
Finally, evidence that the cardiologists at SMC expressed concern about Josko's management of the CVS department is not direct evidence that Josko discriminated against Wade on the basis of her age. Some cardiologists expressed their dissatisfaction with Josko's management of the CVS department prior to Wade's termination. Doc. 15 at ¶¶ 131-33; Doc. 26 at ¶¶ 131-33. After Wade's termination, one cardiologist, Dr. William Waltz (Dr. Waltz), wrote a letter sharply criticizing Josko and her management of the CVS department. Dr. Waltz described Josko as "vindictive with [Wade]" and claimed "[Josko's] plan to have [Wade] fired was apparent for years." Doc. 28-13 at 1. Dr. Waltz further described how Josko "continued to harass and intimidate [Wade]" and "created and still maintains a hostile work environment" which continued even after Wade's termination. Doc. 28-13 at 1. Nevertheless, Dr. Waltz's letter does not constitute direct evidence of age-based discrimination on the part of Josko. Indeed, Dr. Waltz provided an affidavit stating that "Josko did not do or say anything that led me [to] believe that the harassment, intimidation, and hostile environment I referenced in the letter I wrote at Wade's request was based on Wade's age." Doc. 35 at ¶ 5. A fact finder would have to infer that Josko's allegedly poor management of the CVS department and behavior toward Wade was the result of discriminatory animus, so Wade has failed to provide direct evidence of discrimination.
Under the burden-shifting framework set forth in
Wade unquestionably was over forty years old and suffered an adverse employment action. SMC initially argued that Wade had failed to meet her burden of establishing the fourth prong of the prima facie case, but does not provide evidence disputing that Wade was replaced by someone substantially younger. Wade alleges that she was replaced by a sonographer "in his thirties" in an affidavit submitted as part of her opposition to SMC's motion for summary judgment. Doc. 28 at ¶ 33. This is sufficient evidence to meet her burden on this prong.
Wade argues that her annual performance evaluations, lack of salary-related penalties for attendance issues, and references from various physicians in Sanford's pediatric cardiac unit establish that she was meeting her employer's legitimate expectations. Doc. 24 at 14. However, Wade does not address her history of violating SMC's Attendance and Punctuality policy and the progressive discipline she faced for those infractions. Wade's reliance on her annual performance evaluations is unconvincing. SMC does not dispute that Wade was a capable sonographer and does not suggest that Wade was terminated for some issue with her technical skills. Doc. 17 at 15 n.3. Rather, SMC argues that Wade's termination resulted from her unexcused absence from her September 12, 2014 shift after a history of infractions of the Attendance and Punctuality policy, as well as failing to follow Josko's directive to attend screenings with Boone.
SMC's Attendance and Punctuality policy establishes that when "an employee does not meet the attendance expectations outlined, they will be subject to the progressive discipline process." Doc. 16-10 at 3. SMC's Discipline policy outlines the progressive discipline process, which progresses from verbal to written reminders, then to a DML, and culminates in termination. Doc. 16-11 at 3. The Discipline policy provides that employees placed on a DML "must decide during this leave whether they can commit to Sanford's expectations or choose to resign their position." Doc. 16-11 at 3. The Discipline policy further states that "[a]n employee may be terminated due to the frequency or nature of his or her violation of policies and/or continued failure to meet the performance expectations of their position." Doc. 16-11 at 3 (emphasis added). Wade received a verbal warning for violations of the Attendance and Punctuality policy in May of 2008, written warnings in December 2008 and October 2009, more verbal warnings in December of 2011 and November of 2012, and was placed on a DML in December of 2012.
While it appears that Wade fails to establish this prong of her prima facie case, one material factual dispute prevents this Court from granting SMC's motion for summary judgment at this phase of the
SMC also argues that Wade was not meeting the legitimate expectations of her employer when she failed to accompany Boone to a screening on September 16, 2014. It is undisputed that Wade told Josko she was not aware of the directive to accompany Boone because she was behind on reading her emails, Doc. 15 at ¶ 78; Doc. 26 at ¶ 78, and Wade also alleges that Dr. Theresa Stamato (Dr. Stamato) informed Wade that she did not need to accompany Boone that day, Doc. 28 at ¶ 67. SMC has provided evidence to establish that the pediatric cardiologists, such as Dr. Stamato who work at Sanford Clinic, do not schedule, hire, fire, discipline, or complete performance evaluations for the pediatric cardiac sonographers employed by SMC. Doc. 31 at ¶ 6. Rather, Wade was an employee of SMC and Josko was her supervisor. Doc. 15 at ¶ 82. In her Response to Statement of Genuine Disputes of Material Facts, Wade maintains that Dr. Stamato did have authority to excuse Wade from accompanying Boone, but Wade cites to no record evidence to support this assertion. Doc. 26 at ¶ 83. Josko testified during her deposition that Dr. Stamato had previously mandated that Boone was not to scan on her own without another sonographer present. Doc. 16-5 at 13. If Dr. Stamato had authority to require that Boone be accompanied, there is at least a fact question whether Dr. Stamato also had authority to excuse a sonographer from accompanying Boone. Taking the facts in the light most favorable to Wade, there is a question of fact whether Wade was excused from accompanying Boone and thus was meeting her employer's legitimate expectations, so Wade has established a prima facie case of age discrimination under the
Because Wade has established a prima facie case of age discrimination, the burden shifts to SMC to articulate a legitimate, nondiscriminatory reason for terminating Wade's employment.
SMC has met this burden. As the previous section details, SMC maintains that Wade both violated SMC's Attendance and Punctuality policy and failed to follow the instructions of her supervisor to accompany Boone while Wade was on back up call. Wade has a documented history of discipline for tardiness, as prescribed by SMC's progressive discipline process, which includes verbal and written warnings, as well as a DML.
Because SMC has provided legitimate, nondiscriminatory reasons for terminating Wade's employment, the burden shifts back to Wade to establish pretext. Although there are multiple ways to demonstrate pretext, plaintiffs typically do so by offering evidence that the employer's rationale is "unworthy of credence . . . because it has no basis in fact" or that "a [prohibited] reason more likely motivated the employer."
Wade has not met her burden. To argue that SMC's proffered reasons are pretextual, Wade relies heavily on her history of good annual performance evaluations. Wade asserts that because she "never received any negative reviews in her annual reports for tardiness" and that her performance evaluations "all indicate that she met, or exceeded, Sanford's expectations[,]" there are genuine issues of fact as to whether SMC's proffered justifications are pretext. Doc. 24 at 15-16. Wade cites to this Court's opinion in
Wade's case is distinguishable from
Wade has also failed to present evidence which "creates a reasonable inference that age was a determinative factor" in the decision to terminate her employment.
Wade asserts that Josko discriminated against her due to her age and treated younger technicians more favorably and that Josko complained to Wade about the difference in their salaries and ages, as well as disliking supervising someone who was older. Doc. 24 at 13; Doc. 28 at ¶ 30. However, Wade's contentions are refuted by her own deposition testimony. During her deposition, Wade was specifically asked about Josko's alleged comments regarding age:
Doc. 16-1 at 25. In her affidavit opposing SMC's motion for summary judgment, Wade stated that "I don't recall the specific representations that she made, but I do recall feeling that she did not like the fact that I was older than she was or that I had as much experience as I did in the unit." Doc. 28 at ¶ 30. As an initial matter, Wade may not rest on an affidavit or a contention in her brief alleging Josko made age-based discriminatory comments when her deposition testimony directly contradicts that allegation.
Josko's alleged comments about Wade's higher salary also fail to establish pretext on the part of SMC in terminating Wade's employment. As explained in Part III.A.1 above, comments about salary are not direct evidence of discrimination.
In further support of her contention that Josko discriminated against her, Wade alleges that Josko "set her up" by 1) making her feel like a DML was of little consequence by telling Wade that she, Josko, had received a DML herself prior to being promoted and 2) telling Wade "not to worry" about missing her scheduled shift on September 12, 2014. Doc. 24 at 13. During her deposition, Wade testified that at some point after being placed on a DML in December of 2012 she called in to work—pursuant to her action plan—to inform Josko that she would be late due to snow. Doc. 16-1 at 18. Wade further testified that Josko told her at that time it was no longer necessary to call in and that Josko "had been through the decision-making leave herself for tardiness and not to worry about it."
Doc. 16-1 at 20-21. Despite Wade's contention that Josko was setting her up, Wade's testimony makes clear that Josko informed Wade that missing her shift would be considered an unexcused absence and that Josko said nothing about whether Wade would be disciplined. Even considered in the light most favorable to Wade, these facts do not support an inference of discrimination.
Wade also alleges that younger sonographers were treated more favorably by Josko. In her Response to Statement of Genuine Disputes of Material Fact, Wade cites to paragraph 54 of her affidavit in alleging that younger sonographers were routinely tardy and did not receive a DML. Doc. 26 at ¶¶ 29-36. That paragraph in the affidavit alleges that Hargreaves was routinely tardy for work and also missed work on several occasions for personal reasons, yet did not receive a DML. Doc. 28 at ¶ 54. In her brief in opposition to SMC's motion, Wade alleges that "all the technicians in the pediatric unit were routinely tardy for clocking into work." Doc. 24 at 16. Wade has provided no evidence that the other sonographers in the pediatric cardiac unit were routinely tardy and not disciplined, thus she cannot rely on this conclusory allegation to avoid summary judgment.
The only concrete example of disparate treatment Wade provides is the written warning Hargreaves received in the summer of 2014 for missing a scheduled shift. As detailed in Part I.B above, Hargreaves was issued a written warning on July 11, 2014, for missing her scheduled shift on June 26, 2014. At that time, Hargreaves had received three prior verbal warnings, but no written warnings and no DML. Doc. 16-9 at 14. This fact is fatal to Wade's contention that Hargreaves's written warning is evidence of pretext. "At the pretext stage, `the test for determining whether employees are similarly situated to a plaintiff is a rigorous one[,]' [and Wade] must show that she and [Hargreaves] were `similarly situated in all relevant respects.'
Beyond the above analysis, there is additional evidence in the record which undermines Wade's assertion that she was treated less favorably than the younger pediatric cardiac sonographers. Hargreaves—who was under forty years old—made very similar complaints about Josko's management when she received her written warning and at the time of her voluntary resignation from SMC as Wade has alleged in this case.
The evidence Wade has presented establishes that she was a skilled pediatric cardiac sonographer who was valued by the physicians with whom she worked. Wade has also presented evidence that Josko may have been a poor manager and unreasonably rigid in failing to explore options to accommodate the vacation requests of various employees under her supervision. However, Wade has not presented evidence which suggests that SMC's rationale for terminating Wade is mere pretext, and this Court is not empowered to punish SMC for making poor business decisions.
To prove a claim of hostile work environment based on age, Wade must show "(1) [she] belongs to a protected group[;] (2) [she] was subjected to unwelcome harassment based on age . . . [;] (3) the harassment affected a term, condition, or privilege of [her] employment; (4) [her] employer knew or should have known of the harassment;
"The Supreme Court has cautioned courts to be alert for workplace behavior that does not rise to the level of actionable harassment."
Wade's hostile work environment claim weaves together the allegations of discrimination by Josko as discussed above, with several actions by Josko allegedly intended to undermine Wade's position in the pediatric cardiac sonography unit. The allegations of discrimination discussed above do not create a reasonable inference of discriminatory animus based on age and need not be reanalyzed here. In order to consider the "totality of the circumstances" in evaluating Wade's hostile work environment claim, however, this Court does consider those allegations, along with Wade's allegations that Josko worked to undermine her position.
Josko's actions allegedly taken to undermine Wade's position can be categorized as either favoring younger technicians or otherwise acting vindictively toward Wade. As to the first category, Wade alleges that Josko treated younger sonographers more favorably and created a hostile work environment, Doc. 28 at ¶¶ 31-32, that Josko would "disregard" Wade and give other employees leadership roles despite Wade being lead tech, Doc. 28 at ¶ 34, and that Josko would "bypass [Wade] on new developments" and would instead go to younger sonographers, Doc. 28 at ¶ 36. Wade's allegations that younger techs were treated more favorably are not substantiated by any evidence in the record, and such "unsubstantiated and conclusory allegations" are insufficient to satisfy her burden of showing she was harassed on the basis of her age.
As to being disregarded and passed over for leadership roles, Wade points primarily to Salzwedel being tasked with training the other sonographers in the pediatric cardiac unit in maternal fetal medicine (MFM). Doc. 16-1 at 29. Salzwedel had obtained a certificate in fetal echocardiography that none of the other sonographers possessed. Doc. 16-9 at 49. Nevertheless, Wade asserts that being the formal preceptor in the unit, the task of training the other pediatric cardiac sonographers in MFM should have fallen to her instead. Doc. 16-9 at 29. Wade testified that the preceptor's duty was to train new employees of the pediatric unit, for which she received additional compensation during the time she was training. Doc. 15 at ¶ 4; Doc. 26 at ¶ 4; Doc. 16-1 at 29. Salzwedel did not receive additional compensation to conduct this internal MFM training and was training current, not new, employees. Doc. 16-1 at 29. Thus, the decision to have a sonographer who possessed a specific certification to conduct internal MFM training of the pediatric cardiac sonography unit without additional compensation did not affect a "term, condition, or privilege" of Wade's employment.
Wade also points to quality assurance projects and the development of a peer review process—apparently tasked to other, younger sonographers—as examples of being bypassed for leadership roles. Wade testified that Salzwedel was tasked with the pediatric cardiac sonography unit's quality assurance projects, and that Wade and other younger sonographers sought to be trained to do quality assurance projects while Salzwedel was on maternity leave. Doc. 16-1 at 6, 29. According to Wade, neither she nor any of the younger sonographers who requested that training received it. Doc. 16-1 at 6, 29. Importantly, Wade testified that when this training request was made, "[Salzwedel] said no, and [Josko] didn't push it at all." Doc. 16-1 at 6. This allegation fails to support a hostile work environment claim for two reasons. First, it was apparently Salzwedel that rejected the request by Wade to be trained to complete quality assurance projects, not Josko, who is the only individual at SMC that Wade alleges discriminated against her. Second, there is no disparate treatment between Wade and the younger sonographers who also did not receive this requested training. As for the peer review process, Wade testified that although Bohnenberger was tasked with developing the peer review process, SMC "didn't ever start doing the peer reviews for pediatrics." Doc. 16-1 at 6. Wade's hostile work environment claim cannot withstand summary judgment on the basis that a younger sonographer, rather than Wade, was tasked with developing a peer review process that was apparently never used at SMC, for such an allegation, even if true, did not affect a "term, condition, or privilege" of Wade's employment.
Finally, Wade's allegations that Josko would "bypass" her on new developments and instead go to younger sonographers are refuted by the record evidence and would not amount to harassment sufficient to satisfy a hostile work environment claim even if the allegations were true. Wade contends that Josko would intentionally schedule Wade in the adult lab at the same time Josko scheduled the pediatric cardiac sonography unit meetings where she typically disseminated information on new developments. Doc. 16-1 at 29; Doc. 28 at ¶ 37. However, Wade could not identify any specific meetings from which she was excluded during her deposition, and SMC has produced the minutes from 11 pediatric cardiac unit meetings that took place between 2011 and 2014, which show Wade either attended the meeting, had the day off, or was scheduled to work in the pediatric cardiac unit. Doc. 16-9 at 65-82. Wade was not scheduled to work in the adult lab during any of these meetings. Moreover, during her deposition Wade specifically denied lacking the knowledge and information necessary to perform her job because of these alleged missed meetings, and she admitted that she was never disciplined for not attending a meeting, her pay was not impacted for missing any meetings, and she was able to complete all of her continuing education requirements. Doc. 15 at ¶ 161; Doc. 16-1 at 29-30; Doc. 26 at ¶ 161. Therefore, even assuming Wade did miss some pediatric cardiac sonography unit meetings because she was scheduled in the adult lab, she cannot claim that this "unreasonably interfere[d] with [her] job performance."
The allegations Wade makes regarding Josko's behavior, which this Court characterizes as Wade's allegations of vindictive treatment by Josko, include three primary contentions: 1) that Josko "refuted" Wade's ideas for developments and procedures in the pediatric cardiac sonography unit, Doc. 28 at ¶ 38; 2) that Josko rarely scheduled Wade for lead tech time, hindering her ability to accomplish her job, Doc. 28 at ¶ 62; and 3) that Josko frequently changed the call schedule which required Wade to switch with coworkers to accommodate vacation days Wade had requested months in advance, Doc. 28 at ¶ 39. None of these arguments however establish a viable hostile work environment claim.
During her deposition, Wade was unable to identify any ideas she had brought forth regarding developments or procedures for the pediatric cardiac unit which the physicians at Sanford supported but Josko rejected. Doc. 15 at ¶ 163; Doc. 16-1 at 30; Doc. 26 at ¶ 163. To support her allegation, Wade submitted an email, dated December 12, 2013, in which Wade requested that Josko schedule her for more lead tech time in order to work on various projects for the physicians. Doc. 28-14. Josko's response to Wade is "[t]hanks for bringing those issues up, Diane. You have my complete support." Doc. 28-14. While this email demonstrates that Wade had designs to work on what can be characterized as procedures and developments for the pediatric cardiac unit, it does not demonstrate that Josko "refuted" these ideas. To the contrary, Josko replied that Wade had her "complete support" in accomplishing these tasks. The email does not constitute evidence of a hostile work environment, and unsubstantiated allegations by Wade that Josko "refuted" her ideas do not suffice to prevent summary judgment.
In support of the allegation that Josko would not schedule her sufficient lead tech time, Wade points to the December 12, 2013 email and a conversation with Munce which resulted in Josko completing a Hogan Management Assessment. Doc. 16-1 at 23. Wade testified at her deposition that the December 2013 email was sent because the physicians she worked with "were not happy [Wade] wasn't getting things done" that they wanted her to complete, which Wade attributed to not being scheduled adequate lead tech time. Doc. 16-1 at 23. Wade further testified that Salzwedel and Bohnenberger were scheduled time to complete the quality assurance projects and peer review process. Doc. 16-1 at 23. SMC has produced evidence that after Wade's email, she was scheduled for lead tech time on December 31, 2013, and again in 2014 on January 3, February 4, March 11 and 24, and on April 1. Doc. 16-9 at 43-44, 58-60. When Wade spoke to Munce, she did not directly tell that Josko was failing to schedule Wade for enough lead tech time, but instead told Munce that "[Josko] had put us between a rock and a hard place and that it was very hard to do the things needed in the peds program." Doc. 16-1 at 28. Munce's affidavit states that he did not require Josko to complete the Hogan Management Assessment because of any complaints by Wade of discrimination or harassment. Doc. 31 at ¶ 13. However, even when taking the facts in the light most favorable to Wade, the allegations that Josko impeded Wade's ability to do her job by scheduling her insufficient lead tech time do not support a claim for hostile work environment because this is not harassment that "was so intimidating, offensive, or hostile that it poisoned the work environment."
Finally, while Wade alleges that Josko "frequently" changed the call schedule, she attempts to substantiate this claim only with the call schedule revision from 2014. As detailed in Part I.B above, two cardiac sonographers left the pediatric cardiac sonography unit after Josko had set the 2014 call schedule and Wade's daughter had scheduled her wedding for a weekend in August of 2014 when Wade was not originally scheduled to be on call. Doc. 15 at ¶ 173; Doc. 26 at ¶ 173. This necessitated a revision of the call schedule because SMC has a policy of having one pediatric cardiac sonographer on call every evening, weekend, and holiday. Doc. 15 at ¶ 170; Doc. 26 at ¶ 170. Wade does not deny that two pediatric cardiac sonographers left SMC after the 2014 call schedule was originally set, necessitating a new call schedule. Wade maintains that she had requested PTO on that weekend and that Josko instructed her that she would need to find someone to work her shift if she wanted to attend her daughter's wedding. Though insensitive and heartless, Josko's actions and response do not establish a hostile work environment claim. Wade was able to switch with a coworker and attend her daughter's wedding. Doc. 16-1 at 8. Even taking the facts in the light most favorable to Wade and assuming Wade had requested PTO and that Josko was callously indifferent to the scheduling conflict, such "rude or unpleasant" conduct is "not severe enough to affect the terms, conditions, or privileges of [Wade's] employment."
In addition to the allegations made in her affidavit and complaint, Wade also contends in her brief in opposition to SMC's motion for summary judgment that Josko "subject[ed] [Wade] to ridicule." Doc. 24 at 9. Wade makes no specific allegations about being subjected to ridicule, and thus she cannot support her hostile work environment claim with this contention.
Under the totality of the circumstances, Wade's hostile work environment claim does not survive summary judgment because none of the harassment to which she was allegedly subjected was motivated by her age or affected a term, condition, or privilege of her employment. There is evidence in the record that Josko and Wade had workplace issues and that Josko may at times have made Wade's life difficult. However, this type of frustrating work situation does not constitute harassment sufficient to maintain a hostile work environment claim, but is rather akin to the "ordinary tribulations of the workplace" which the stringent hostile work environment standards are meant to "filter out" from federal court claims.
Wade alleges intentional infliction of emotional distress in Count III of her Complaint. Under South Dakota law, a plaintiff alleging intentional infliction of emotional distress must show four elements: "(1) extreme and outrageous conduct by the defendant; (2) that the defendant intended to cause severe emotional distress; (3) there must be a causal connection between the wrongful conduct and the emotional distress; and (4) severe emotional distress must result."
To support her claim, Wade argues that Josko "clearly sabotaged" her career by telling her "not to worry about missing work" and then misrepresenting this conversation in the report Josko prepared and submitted to Human Resources about the incident. Doc. 24 at 21. While this issue has been exhaustively addressed above, this Court will note again that even if Josko did tell Wade "not to worry" about missing the September 12, 2014 shift (as this Court must assume at this stage as Wade is the nonmoving party), Wade testified that she did not ask Josko whether missing the shift would result in any discipline and Wade did understand that it would be considered an unexcused absence. Doc. 16-1 at 21. Thus, even assuming that Josko presented "half-truths" in her report to SMC by deceptively omitting that she told Wade "not to worry" about missing her shift, this conduct fails as a matter of law to meet the "rigorous benchmark" required to prove extreme and outrageous conduct on the part of SMC.
Wade further argues that summary judgment on this claim is inappropriate because she has presented evidence of a hostile work environment fostered by Josko, because this abusive treatment was witnessed by others, including Dr. Waltz, and because Wade "was subject to intimidation, adverse personnel action, humiliation, and spite." Doc. 24 at 21. The allegations which Wade asserts to support a claim of a hostile work environment are addressed above and do not constitute the type of "extreme and outrageous conduct" necessary to support a claim of intentional infliction of emotional distress.
Wade cites to the Supreme Court of South Dakota's decision in
Wade's claim is distinguishable from the
To sustain a claim for negligent infliction of emotional distress, Wade must establish three elements: "(1) negligent conduct on the part of [SMC], (2) emotional distress suffered by [Wade], and (3) physical manifestations suffered by [Wade] from the distress."
Wade argues that SMC "had a duty to refrain from abusive conduct toward" her and that SMC, through Josko's conduct, failed to perform this duty. Doc. 24 at 21. Wade cites to no statutory or case authority establishing the particular duty which she alleges SMC breached. As an employer, SMC owes a general duty of reasonable care to its employees to furnish a safe workplace.
Because Wade has pointed to no statutory or common law duty which SMC owed to her and failed to perform—other than her own assertion that SMC "had a duty to refrain from abusive conduct"—SMC is entitled to summary judgment on Wade's claim for negligent infliction of emotional distress.
As SMC is entitled to summary judgment on all of Wade's claims and no cause of action remains, Wade's claim for punitive damages (Count V) is dismissed as well.
For the reasons stated above, it is hereby
ORDERED that SMC's motion for summary judgment, Doc. 14, is granted.
