Cone v. Longmont United Hosp. Ass'n, 92-1349

Decision Date20 January 1994
Docket NumberNo. 92-1349,92-1349
Parties63 Fair Empl.Prac.Cas. (BNA) 1045, 63 Empl. Prac. Dec. P 42,836 Sharon G. CONE, Plaintiff-Appellant, v. LONGMONT UNITED HOSPITAL ASSOCIATION, a Colorado Corporation, Defendant-Appellee.
CourtU.S. Court of Appeals — Tenth Circuit

Darold W. Killmer (Gilbert M. Roman with him on the brief), of Feiger, Collison & Killmer, Denver, CO, for plaintiff-appellant.

Brett Marshall Godfrey of Gallo & Godfrey, Denver, CO, for defendant-appellee.

Before BRORBY, HOLLOWAY and KELLY, Circuit Judges.

BRORBY, Circuit Judge.

Sharon Cone appeals the district court's order granting summary judgment in favor of the defendant, Longmont United Hospital, 797 F.Supp. 868. Alleging she suffered age discrimination because of disparate treatment under Longmont United Hospital's leave of absence policy, Ms. Cone brought this action pursuant to the Age Discrimination in Employment Act (ADEA), 29 U.S.C.A. Secs. 621-631. We exercise jurisdiction pursuant to 28 U.S.C.A. Sec. 1291 and affirm.

When reviewing the district court's ruling on a summary judgment motion, we review the motion de novo. Applied Genetics Int'l, Inc. v. First Affiliated Sec., Inc., 912 F.2d 1238, 1241 (10th Cir.1990). We must decide We review a summary judgment fully and may affirm on grounds other than those relied on by the district court when the record contains an adequate and independent basis for that result. Swoboda v. Dubach, 992 F.2d 286, 291 (10th Cir.1993). We are not limited to the district court's reasoning in affirming a grant of summary judgment.

whether any genuine issues of material fact are in dispute and, if not, whether the law was correctly applied. We must look at the record in the light most favorable to the party opposing summary judgment, in this case Ms. Cone. Boren v. Southwestern Bell Tel. Co., 933 F.2d 891, 892 (10th Cir.1991). Summary judgment is only appropriate if the moving party is entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986).

The ultimate question is whether Ms. Cone's evidence established an inference the hospital discriminated on the basis of age. If she failed to make out a prima facie case, she cannot avoid summary judgment. In addition, because the hospital's evidence asserted a nondiscriminatory basis for the termination, she must present evidence to create controversy on whether that reason is pretextual.

Ms. Cone has failed to meet this burden. The basic flaw of Ms. Cone's case is she never showed the availability of a suitable job with the hospital. She also failed to show that age was a factor in Longmont United Hospital's decision to apply its leave of absence policy. Since she did not produce specific evidence to create an issue of material fact, there is no reason for the case to go on to trial. Accordingly, Longmont United Hospital is entitled to summary judgment as a matter of law.

BACKGROUND

Sharon Cone had been an employee of Longmont United Hospital for twenty-two years. Although hired in an entry-level position, she worked her way up to her final position of Director of Customer Services. In the fall of 1988, she was forty-six years old.

On September 19, 1988, Ms. Cone requested a leave of absence until February 6, 1989. She made this request by slipping a note under the door of the personnel director, Harry Nevling, after business hours. Attached to her request was a short note from a doctor saying she needed a medical leave of absence. Despite failing to make this request in person, the hospital granted her request for a leave of absence under hospital policy.

Hospital policy allows employees up to one year away from work as a leave of absence. According to the policy, the hospital will try to reinstate the employee if the employee requests a return to work before the year ends. Employees who fail to return to work before a year has expired will be terminated automatically.

When Ms. Cone requested a leave of absence, her supervisor told her the hospital could not hold her position open for her and that they would seek an immediate replacement. Ms. Cone acknowledges the hospital could not leave her position as Director of Customer Services vacant during her absence and that she understood that they would be hiring a replacement. Within two months of her initial request, the hospital hired a new director to replace her.

On February 6, 1989, Ms. Cone requested an extension of her leave of absence until June 6, 1989. Again, Ms. Cone made this request by slipping a note under Mr. Nevling's door when he was not in his office. The hospital granted this extension.

By June 1989, Ms. Cone contacted Mr. Nevling and informed him she wanted to return to work. At that time, she said to him, "I want[ ] my position back, or something substantially similar." Mr. Nevling informed her that her position had been filled and there were no positions available that were substantially similar. However, he told her to check the hospital job-listing board and apply for any job she wanted.

Ms. Cone claims the hospital deliberately stalled her until her one-year leave of absence time had expired, forcing the automatic termination. She admits, however, that only twice did she check the hospital's job-listing On October 2, 1989, Mr. Nevling sent a letter to Ms. Cone informing her that the one-year leave of absence had expired and she was no longer an employee of the hospital. In this letter, he stated that, according to hospital policy, she had been released from employment effective September 19, 1989.

board, on which all jobs are posted, and both times found there were no jobs suitable for her. The record shows and Ms. Cone admits the hospital had no available jobs substantially similar to the position Ms. Cone left. She also says she never applied for any jobs at the hospital during her one-year leave of absence. Ms. Cone has not shown any evidence demonstrating that the hospital deliberately stalled her and caused her to be terminated.

After her termination, Ms. Cone initiated an age discrimination suit against the hospital. She claims her employment with Longmont United Hospital was unlawfully terminated because of her age. The hospital moved for summary judgment on the grounds that Ms. Cone voluntarily left her position with the hospital and was not subject to any adverse action by the hospital. The district judge granted the motion for summary judgment on the ground that the hospital had not discharged Ms. Cone under the terms of the ADEA.

DISCUSSION

Since Ms. Cone brought a disparate treatment case pursuant to the ADEA, the district court applied the McDonnell Douglas burden-shifting analysis. After carefully reviewing the record, the district court decided the hospital's conduct did not amount to a "discharge" of Ms. Cone under the ADEA, and therefore, she could not establish a prima facie case. Ms. Cone appeals, challenging the district court's dismissal on those grounds. We need not address whether an employer's application of policy can be a "discharge" because we affirm the district court's order on other grounds.

The Tenth Circuit uses the three-stage analysis outlined in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04, 93 S.Ct. 1817, 1824-25, 36 L.Ed.2d 668 (1973), and Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 252-56, 101 S.Ct. 1089, 1093-95, 67 L.Ed.2d 207 (1981), to prove discrimination when no direct evidence of age discrimination exists. Cooper v. Asplundh Tree Expert Co., 836 F.2d 1544, 1547 (10th Cir.1988). At the first stage, the plaintiff must prove a prima facie case of discrimination. She must show that (1) she is "within the protected age group"; (2) she "was doing satisfactory work"; (3) she "was discharged"; and (4) her position was filled by a younger person. Denison v. Swaco Geolograph Co., 941 F.2d 1416, 1420 (10th Cir.1991) (quoting Lucas v. Dover Corp., 857 F.2d 1397, 1400 (10th Cir.1988)).

If the plaintiff satisfies the prima facie requirements under the ADEA, then the case enters the next stage. In this second stage, the burden of production moves to the defendant. The defendant has to present a legitimate nondiscriminatory reason for its action. If the defendant articulates a legitimate, nondiscriminatory reason for its action, then the burden of persuasion moves back to the plaintiff. In this third stage of the discrimination analysis, the plaintiff must show that age was a determinative factor in the defendant's employment decision, or show that the defendant's explanation for its action was merely pretext. See Faulkner v. Super Valu Stores, Inc., 3 F.3d 1419, 1424-25 (10th Cir.1993). Failure to come forward with evidence of pretext will entitle the defendant to judgment. See Burdine, 450 U.S. at 256, 101 S.Ct. at 1095; Denison, 941 F.2d at 1421 (evidence of pretext "is crucial in an ADEA case").

"Discharge" by an employer is an essential statutory element of the prima facie case. The Age Discrimination in Employment Act states that,

[i]t shall be unlawful for an employer ... to fail or refuse to hire or to discharge any individual ... because of such individual's age.

29 U.S.C.A. Sec. 623(a)(1). Our precedent, while noting the discharge requirement, has Ms. Cone created the condition that lead to her automatic termination as an employee of the hospital. She knew that her position as Director of Consumer Services would be filled, but she took the leave of absence anyway. She voluntarily left knowing that it was a risk whether a "substantially similar" position would be available when she wanted to return to work. In fact, she does not claim such a similar position was available. She does not claim the hospital hid available jobs from her in any way. No evidence has been presented that the hospital took steps to block her return to work. Instead, she acknowledges that none of the available positions were what she w...

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