Johnson v. Group Health Plan, Inc.

• Decision Date: 04 June 1993
• Docket Number: No. 92-3181,92-3181
• Citation: 994 F.2d 543
• Parties: 61 Fair Empl.Prac.Cas. (BNA) 1591, 61 Empl. Prac. Dec. P 42,274 Lucille B. JOHNSON, Appellant, v. GROUP HEALTH PLAN, INC., doing business as Group Health, Inc., a Minnesota non-profit corporation, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 543

994 F.2d 543

61 Fair Empl.Prac.Cas. (BNA) 1591,

61 Empl. Prac. Dec. P 42,274

Lucille B. JOHNSON, Appellant, v. GROUP HEALTH PLAN, INC., doing business as Group Health, Inc., a Minnesota non-profit corporation, Appellee.

No. 92-3181.

United States Court of Appeals,

Eighth Circuit.

Submitted March 17, 1993.

Decided June 4, 1993.

Robert Brill, Minneapolis, MN, argued (Robert S. Brill and Patrick J. Kelly, on the brief), for appellant.

James Dawson, Minneapolis, MN, argued (James M. Dawson and Penelope J. Phillips, on the brief), for appellee.

Before MAGILL, Circuit Judge, LAY and HEANEY, Senior Circuit Judges.

MAGILL, Circuit Judge.

Lucille Johnson appeals from the district court's grant of summary judgment in favor of defendant Group Health Plan, Inc. (GHI). Johnson alleged GHI discharged her from her job in violation of the Age Discrimination in Employment Act and the Minnesota Human Rights Act. We hold that Johnson has raised genuine issues of material fact and GHI was not entitled to judgment as a matter of law. We reverse and remand for further proceedings.

I. BACKGROUND

Johnson, who presently is fifty-nine years old, was employed in 1952 by Physicians Clinic and worked for Physicians Clinic in a variety of clerical positions until 1981. In 1981, Johnson was promoted to the position of business manager for the clinic. GHI purchased Physicians Clinic as a going concern January 1, 1989, and Jane Siegal hired Johnson as the GHI clinic manager. Johnson served in this position from January 1, 1989, until she was terminated in May 1990. Johnson was replaced by a younger male employee.

Johnson's daughter, Cynthia Fuller, was also employed by Physicians Clinic, having been hired in 1976. When GHI purchased Physicians Clinic, it hired Fuller as the clinic systems supervisor. Johnson supervised Fuller before GHI purchased the clinic, and continued to supervise her in her new position with GHI. When Siegal, Johnson's supervisor for GHI, learned that Fuller was Johnson's daughter, she informed Johnson of GHI's no-nepotism policy which prohibits one relative from supervising another. Siegal negotiated with Fuller for Fuller to remain in her position as clinic systems supervisor for one year, during which time she could look for another position at GHI. Fuller remained in that position until February 1990. When Fuller left the clinic, Johnson took over Fuller's duties.

Johnson's niece, Jennifer Fossing, was hired by Physicians Clinic in 1987 as a summer receptionist, and became a permanent receptionist in November 1988. GHI hired Fossing in January 1989 when it purchased the clinic. Johnson did not directly supervise Fossing at that time. Fuller did supervise Fossing, however, and when Johnson assumed Fuller's duties in February 1990, Johnson began supervising Fossing.

In the early part of 1989, Johnson took on the responsibility of opening the clinic each day, and arranged for herself to be reimbursed for this task. Siegal told Johnson this reimbursement was against the code of conduct and Johnson stopped the practice. Because of problems the clinic experienced in 1989, GHI hired a consultant to identify the cause of the problems and make suggestions. This consultant filed a report in August 1989 (the Keiser Report). Johnson is not mentioned in this report, nor is her position as clinic manager mentioned.

In January 1990, Siegal filed a written appraisal of Johnson's performance. In preparation for this appraisal, Siegal obtained written comments about Johnson from one of the clinic doctors, Dr. Klevan. Klevan expressed trust in Johnson's abilities and praised her. The performance appraisal authored by Siegal contains no negative comments regarding Johnson's performance, and contains many very positive comments. The appraisal states that in 1989, the clinic suffered problems of stress, disorganization, and poor morale. However, Siegal blames these problems on the takeover by GHI, and attributes the current stability of the clinic to Johnson. Siegal praises Johnson for her efforts to communicate with others in the clinic, her vision for the clinic, effective problem solving, resource management, loyalty, and dedication. Siegal states that Johnson "deserves nothing but congratulations." After this appraisal, Johnson received a pay increase.

In February 1990, Siegal received the results of a fall 1989 employee climate survey which contained negative comments. This survey does not mention Johnson by name, nor does it mention her title. In April, Siegal was told that Johnson had lent a GHI typewriter and transcription equipment to her daughter. On May 2, 1990, Siegal gave Johnson a memorandum stating that she had serious concerns about her ability to serve as clinic manager, and asked for her resignation. Johnson was then terminated.

Johnson brought this action alleging, inter alia, that GHI terminated her in violation of the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 621 et seq., and the Minnesota Human Rights Act, Minn.Stat. § 363.01 et seq. GHI moved for summary judgment and the district court granted GHI's motion on all claims. Johnson appeals, claiming the court erred in granting summary judgment with respect to her claims that GHI violated the ADEA and the Minnesota Human Rights Act.

II. DISCUSSION

We review the district court's grant of summary judgment de novo, United States ex rel. Glass v. Medtronic, Inc., 957 F.2d 605, 607 (8th Cir.1992), and we apply the same standards used by the district court, Thelma D. by Delores A. v. Board of Educ., 934 F.2d 929, 932 (8th Cir.1991). We affirm only when the record shows there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(c); Osborn v. E.F. Hutton & Co., 853 F.2d 616, 618 (8th Cir.1988). We view all the evidence in the light most favorable to the nonmoving party, Johnson, and give Johnson the benefit of all reasonable factual inferences. See Simmons v. Diamond Shamrock Corp., 844 F.2d 517, 519 (8th Cir.1988). Johnson does not need to prove in her favor an issue of material fact; she need only show evidence of a material factual dispute. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50, 106 S.Ct. 2505, 2510-11, 91 L.Ed.2d 202 (1986).

To bring an age discrimination claim under the ADEA, the plaintiff first must establish a prima facie case of discrimination. ¹ If the employer furnishes a legitimate nondiscriminatory reason explaining why the plaintiff was terminated, the plaintiff must offer evidence that the reasons given by the employer are pretextual. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 804, 93 S.Ct. 1817, 1825, 36 L.Ed.2d 668 (1973). To rebut the employer's asserted justification, the plaintiff does not need to persuade the court that a discriminatory reason more likely motivated the employer; the plaintiff needs only to discredit the proffered reasons. MacDissi v. Valmont Indus., Inc., 856 F.2d 1054, 1059 (8th Cir.1988).

To establish a prima facie case, Johnson must establish the following four elements: (1) she was between forty and seventy years old at the time of her termination; (2) she was performing her job at a level that met GHI's legitimate expectations; (3) she was terminated; and (4) her employer attempted to replace her with someone providing the same service. See McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. at 1824; see also Raschick v. Prudent Supply, Inc., 830 F.2d 1497, 1499 (8th Cir.1987), cert. denied, 485 U.S. 935, 108 S.Ct. 1111, 99 L.Ed.2d 272 (1988). GHI admits that Johnson is within the protected age group, she was terminated, and she was replaced by a younger person who provided the same service. However, GHI contends Johnson was not performing her job at a level which met GHI's expectations, and thus has failed to establish a prima facie case.

Johnson has submitted evidence that her performance was satisfactory to GHI in January 1990. The performance appraisal written by Siegal in January was overwhelmingly positive, Dr. Klevan's written evaluation indicated Johnson's performance was at least satisfactory, and Johnson received a pay increase following the January performance appraisal. GHI contends that this evidence does not demonstrate Johnson's performance was satisfactory after January. ² However, Johnson was dismissed a scant four months later, and the record contains no evidence predischarge to indicate that Johnson's performance was less than satisfactory during those four months.

GHI contends that it received in February the results of an employee attitude survey taken in the fall of 1989, and this survey contained negative comments regarding morale, favoritism of relatives, lack of leadership, lack of training, and the need to change top management at the clinic. However, Johnson argues this attitude survey is not legitimate evidence that her work was unsatisfactory after her January performance appraisal. To support this...