Herrero v. St. Louis University Hosp.

• Decision Date: 26 April 1996
• Docket Number: No. 4:95CV123 CDP.,4:95CV123 CDP.
• Citation: Herrero v. St. Louis University Hosp., 929 F.Supp. 1260 (E.D. Mo. 1996)
• Parties: Epifania HERRERO, Plaintiff, v. ST. LOUIS UNIVERSITY HOSPITAL, et al., Defendants.
• Court: U.S. District Court — Eastern District of Missouri

929 F. Supp. 1260

Epifania HERRERO, Plaintiff, v.ST. LOUIS UNIVERSITY HOSPITAL, et al., Defendants.

No. 4:95CV123 CDP.

United States District Court, E.D. Missouri, Eastern Division.

April 26, 1996.

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Steven C. Banton, Partner, Rodney J. Stevens, Quinn and Ground, Manchester, MO, for Epifania Herrero.

Peter H. Ruger, Peter G. Yelkovac, Peper and Martin, St. Louis, MO, for St. Louis University Hospital, Greg Ruppel and Allen Hibbett.

MEMORANDUM AND ORDER

PERRY, District Judge.

This matter is before the Court on defendants' motion for summary judgment and on plaintiff's motion for leave to file her second amended complaint.Plaintiff, a sixty-one-year-old woman of Filipino national origin, was employed in defendant St. Louis University Hospital's ("SLUH") pulmonary function department from 1969 until her termination in 1994.DefendantsAl Hibbett and Gregg Ruppel were both plaintiff's supervisors in SLUH's pulmonary function laboratory when she was terminated, and Ruppel was her supervisor in 1984 when her job title was changed.

Plaintiff's eleven-count first amended complaint alleges that defendants discriminated against her on the basis of her age, race and national origin, both when she was allegedly demoted in 1984 and when she was terminated in 1994; she also alleges that the 1994 termination was retaliation for her previous filing of an EEOC complaint regarding the alleged demotion.Counts I, II and V allege that defendants SLUH and Ruppel violated the following statutes in making the 1984 demotion: the Age Discrimination Employment Act, 29 U.S.C. § 621(ADEA), 42 U.S.C. § 2000e et seq.(Title VII), 42 U.S.C. § 1981, and the Missouri Human Rights Act, § 213.010, R.S.Mo(MHRA).Counts VII and IX also relate to the 1984 demotion and allege that defendant Ruppel is liable for the common-law torts of intentional infliction of emotional distress and tortious interference with contract.Counts III, IV, and VI allege that defendants SLUH, Ruppel and Hibbett violated the ADEA, Title VII, § 1981, and the MHRA in terminating plaintiff in 1994.Counts VII, X, and XI also relate to the 1994 termination and allege that defendants Ruppel and Hibbett are liable for the common-law torts of intentional infliction of emotional distress, tortious interference with contract, and civil conspiracy.

As discussed in more detail below, plaintiff was terminated as part of a reduction in force at SLUH.Her evidence of discrimination consists of her own perceptions of unfairness and mistreatment by her co-workers and superiors, and several comments made over the years by her co-workers and her superiors.The evidence presented shows that there is an absence of any genuine issue for trial, and as a matter of law plaintiff cannot prevail on any of the theories she has presented.Therefore the motion for summary judgment will be granted.Because the proposed second amended complaint does nothing to save plaintiff's claims from summary judgment, and because it was filed months after the deadline for filing such motions set by the Court after consultation with plaintiff's counsel, the request for leave to amend the complaint will also be denied.

I.Facts¹

PlaintiffEpifania Herrero was employed by St. Louis University Hospital in August 1969.SLUH promoted plaintiff to respiratory therapist in 1978, and to "pulmonary laboratory technician" in 1979.Plaintiff' title was changed to "blood gas technician" in February 1984, although her salary and duties remained unchanged.This change coincided with the approximate time that Hibbett was hired as a "pulmonary function technologist."When Ruppel, the department director, told plaintiff in 1984 that her title had been changed, she refused to sign a form showing this change in title to blood gas technician, because she considered it a demotion.Defendants' evidence shows that this refusal was simply noted in the record, but the change in title was effective at that time.Plaintiff testified that defendants concealed the change in title from her, and points to various forms for sick leave (many of which she filled out herself) that show her title as "Pulmonary lab tech."According to plaintiff, she only learned that her title had in fact changed on December 14, 1990, when defendant Hibbett, who by then was the department assistant director, informed her of the change during an evaluation.

Plaintiff's title was changed to "pulmonary function assistant" on April 25, 1991, but plaintiff again refused to sign a change in status form because she felt that "function technician"² was her appropriate title and that she was not an "assistant."On November 2, 1993, plaintiff filed a charge with the EEOC alleging that she had been denied raises and bonuses because of her age and national origin, and raising both the 1984 and 1991 changes in title as examples of this discrimination.³

Early in 1994, SLUH began a process to reduce its forces.The RIF implementation policy provided for the selection of employees to be laid off on the basis of job classification, employment status, prior job performance, seniority, and licensure and/or certification.David C. Miller, Director of Affirmative Action, testified by affidavit that plaintiff was selected for termination solely on the basis of the first factor (job classification).Sanford Deitch, Assistant Administrator — Hospital Services Administration, who was Ruppel's supervisor, testified by affidavit that after the Clinical Chemistry Laboratory agreed to do blood gas testing, he decided to transfer all blood gas testing from the Pulmonary Function Department to that department, and that he"recommended to the Hospital administration that the blood gas technician and pulmonary function assistant positions be eliminated."He further testified that the "final decisions concerning personnel and positions to be eliminated" were made by "upper level Hospital and University administrators."Miller's affidavit also states that a major portion of plaintiff's responsibilities — blood gas testing — was transferred to the clinical chemistry department, and that the blood gas technicians previously employed in the pulmonary function department were therefore laid off during the 1994 RIF.This resulted in four people being laid off and only four employees remaining in the pulmonary function department.Plaintiff, age 60 at the time of the RIF, was the oldest person in the department.The remaining employees were department director Ruppel, assistant director Hibbett, pulmonary function technologist Sue Borosh, and department secretary Kate Spellman Hahn.Sue Borosh is a white female who was approximately forty years old at the time of the RIF.

On April 29, 1994, SLUH's chief executive officer Herbert Schneiderman sent a memo to affected employees titled "Reduction in Force: Notice of Layoff", which informed the recipients that:

Effective June 30, 1994, your position will be eliminated and your employment with Saint Louis University Hospital will end.Along with the elimination of your position and your employment with Saint Louis University Hospital, a total of 91 other positions will be eliminated.⁴

Plaintiff, who was on vacation at the time the April 29 memo was sent to her, learned of her termination by telephone at some later date and, on May 5, 1994, received the memo in a meeting attended by her, her lawyer, and Affirmative Action Director Miller.

The position of "pulmonary function technologist" was retained, while "blood gas technicians" and "pulmonary function assistants" were eliminated.Miller testified that the position of pulmonary function technologist was retained "because a person holding that position could perform more advanced pulmonary testing, and more comprehensively interpret results, than a person in a lower classification."Plaintiff never held the title "pulmonary function technologist" and never performed all the duties of that position.She provided evidence that she can and has performed thirteen of the fourteen "basic duties" and two of the six "special duties" of a pulmonary function technologist.The pulmonary function technologist who was retained, Susan Borosh, had passed a national certification exam, which plaintiff never took.Among the duties that plaintiff did not do but Borosh did were drawing blood gasses, conducting exercise training, running quality assurance for pulmonary function studies, troubleshooting for specialized equipment, and drawing blood from an arterial line catheter.

Plaintiff testified that she was unable to perform those additional duties because of her lack of specialized training.She argues that she was not provided the training or the opportunity to advance because of discrimination, but conceded in her deposition that Ruppel told her, in 1991, that she could take the certifying test, that it would increase her pay, and that it was not required by SLUH.Plaintiff complains that Ruppel did not actively encourage her to obtain the certification.

Plaintiff also testified that she was excluded from office parties, given the "silent treatment" by Ruppel after she filed her 1993 EEOC complaint which accused him of discrimination, was not informed of changed test procedures, was not given the proper amount of overtime, was not helped to catch up on tests, was monitored more closely than other employees by her supervisors, and was subjected to derogatory remarks by co-workers due to her age, national origin, and race.Plaintiff testified that Ruppel was "sociable with all the caucasians, especially the younger, pretty ones."The specific derogatory comments and comments showing bias to which she testified are: (1) When she came to work with her hair down, at some time in the 1990s, Hibbett said, "your hair gives me goose bumps."(2) When she and Hibbett were discussing their children, he stated "You are as old as my mother, or older," to which p...