Opinion
No. IP00-0151-C-M/S
March 21, 2001
John D. Papageorge, Sommer Barnard, P.C., Indianapolis, IN
Alan L. McLaughlin, Baker Daniels, Indianapolis, IN
Jerry C Newsome, Hunton Williams, Atlanta, GA
ORDER ON MOTION FOR SUMMARY JUDGMENT
This matter comes before the Court on a motion by the defendants, HealthSouth Corporation and Kokomo Rehabilitation Hospital (collectively "HealthSouth"), requesting that the Court find as a matter of law that all of the claims presented by the plaintiff, Sonya R, Snow ("Snow"), should be dismissed. Snow maintains that HealthSouth's decision to terminate her employment in October 1998 was motivated by one or more impermissible forms of discrimination. Citing both her age and her recent medical problems as the impermissible determining factors, she has brought this action under the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et seq., the Americans with Disability Act ("ADA"), 42 U.S.C. § 12111 et. seq., and the Family Medical Leave Act ("FMLA"), 29 U.S.C. § 2601 et seq. The gist of her complaint is that the corporate "action plan," which was given to her immediately after her return from medical leave, set goals for her that were so unrealistic that she could not possibly have achieved them. She asserts, therefore, that HealthSouth's subsequent decision to terminate her for failure to achieve those goals was, in truth, motivated by one or more illegal forms of discrimination. In addition to seeking summary judgment on the grounds that Snow has failed to present evidence that is sufficient on the merits, HealthSouth also seeks summary judgment on the grounds that Snow is not entitled to relief because she has failed to mitigate her damages. HealthSouth asserts that Snow did not attempt to find another job in hospital administration after she was terminated, but rather chose to pursue an alternative career in real estate.
The Court has fully considered the parties' arguments and, for the reasons discussed below, GRANTS the defendant's motion for summary judgment on the ADEA and ADA claims, but DENIES the defendant's motion for summary judgment on the FMLA claim. In addition, the Court DENIES HealthSouth's motion for summary judgment on Snow's failure to mitigate damages.
I. FACTUAL PROCEDURAL BACKGROUND
The facts in the light most favorable to Snow are these:
Snow began working for Kokomo Rehabilitation Hospital ("Hospital") in October, 1994, as its marketing director. Snow Dep. at 71-72. Snow managed three departments at the Hospital: the telephone system, the intake system, and marketing and admissions. Snow Dep. at 72. The Hospital focuses on rehabilitation and does not maintain its own surgery, obstetrics, or emergency care departments. Declaration of HealthSouth Vice President Terry Maxhimer ("Max. Dec.") ¶¶ 4, 6. As such, it must rely on patient referrals from physicians, hospitals, nursing homes, and others in the community in order to keep its beds filled and its staff paid. Id. Snow's primary responsibility was to cultivate those sources, largely by determining what programs the community needed (in light of the primary health care problems in the community), and by marketing those programs that the Hospital already had in place. Snow Aff. ¶¶ 16-18; Max Dec. ¶ 7; Deposition of current Hospital administrator Stover ("Stover Dep.") at 30. Snow played an instrumental role in helping the Hospital develop a Parkinson's Program, a Second Chance Program, and an Oncology program. Stover Dep. at 33-4.
Snow's job required her to spend time out in the community making "marketing calls", as well as time in the Hospital establishing marketing strategies and helping to develop the Hospital's overall business plan. Snow Dep. at 83, 93. Snow also supervised four marketing liaisons: Melinda Kaufman ("Kaufman"), Dean Vincent ("Vincent"), Lorene Simpson ("Simpson"), and Kitty Kamm ("Kamm"), who were mainly responsible for calling on physicians, hospitals, nursing homes, businesses, civic organizations, and other sources within the community in an effort to obtain patient referrals. Snow Dep. at 80-81; Bailey Dep. at 106; Simpson Dep. at 5-6; Kamm Dec ¶ 13. The marketing liaisons had no supervisory, management, or administrative responsibilities, and were paid a significantly lower salary than Snow. Snow Dep. at 93-4, 97-100.
The primary statistical measure of the success of the marketing department is the average number of patient beds filled each day (average daily census or "ADC"). Snow Dep. at 126-27, 137, 202. The Hospital has from fifty-six to fifty-eight beds available for patients. Deposition of former Hospital administrator David Bailey ("Bailey Dep.") at 78; Snow Dep. at 128. Under Snow's leadership, the annual average for the ADC's progressed from 16 in 1994, to 27.4 in 1995, to 33.2 in 1996, and to 42.7 in 1997. Snow Dep at 166; Simpson Dep. at 55-6 and Ex. 8.
On or about October 29, 1997, HealthSouth acquired the Hospital from its former owner, Horizon/CMS Corporation ("Horizon") and proceeded to implement reforms designed to increase efficiency and lower costs. Max. Dec. ¶¶ 9, 10, 15, and 17; Max. Dep. at 7-8. HealthSouth had its own marketing plans and procedures which it attempted to introduce at the Hospital. Max. Dec. §§ 10 and 11. Although the timing of the implementation was not made clear by either party, it apparently continued through the Spring of 1998.
On separate occasions during this transition period, both HealthSouth's regional director of business Sue Walker ("Walker") and its state director of business development Barb Butler ("Butler") met with Snow and attempted to introduce her to HealthSouth's goals and reporting procedures, as well as to various resources available through HealthSouth. Walker Dep. at 30-1. These resources included field service guides, program manuals, and diagnostic ("DRG") reports. Walker Dec. § 4. The latter are particularly useful in that they list patients by diagnosis, hospital, state, and year, and they tell whether patients returned home or moved to other healthcare or rehabilitation facilities after discharge. Walker Dec. §§ 5-6. Walker provided Snow with a copy of the reports on disk, and Butler provided her with a hard copy. Walker Dec. § 8; Butler Dec. § 10. According to Snow, she used these reports and other marketing materials as best as she was able, but Walker and Butler provided her with little supervision as to how to use them. Snow Aff. § 19.
Both Walker and Butler claim to have formed unfavorable initial impressions of Snow's job performance. Walker Dep. at 31-2; Butler Dec. § 37. Walker thought that Snow was poor at communicating and that she did not have a good understanding of the facility's position in the marketplace. Walker Dep. at 32-3; Walker Dec. § 5. Butler noticed a lack of structure and organization in the marketing department. Butler Dec. § 18. She also thought that Snow did not have an adequate strategy for developing programs in the hospital or identifying new referral bases in order to increase the volume of patients. Butler Dec. § 19.
During the transition period, HealthSouth officials also made a number of comments that arguably expressed prejudice against older workers who might be set in their ways. For example, corporate vice president Maxhimer told Hospital employees that HealthSouth is not for everybody and that older and more experienced workers may not survive the changes. Snow Dep. at 241. And, Walker told Snow that if she (Walker) had had such a poor ADC, she would have resigned already. Snow Dep. at 265. According to Snow, Walker "kind of inferred that I had been around a long time, and it was probably time for me to go." Snow Dep. at 266. Walker also told Snow that at her time in life, she did not need to be working anymore. Snow Dep. at 267.
In keeping with HealthSouth's marketing system, the title of Snow's position was changed from "marketing director" to "marketing coordinator." Snow Dep. at 167-9. Her job expectations were also increased. Snow Dep. at 169. Whereas Horizon expected Snow to function primarily as an administrator and supervisor, performing most of her duties from inside the Hospital, Snow Dep. at 127, 167-71, 204; Bailey Dep. at 68, 105-6, HealthSouth required Snow also to take responsibility for a marketing territory and to spend more of her time out making marketing calls. Snow Aff. § 13. Snow Dep. at 167. At the same time, two of Snow's marketing liaisons, Kaufman and Vincent, were reassigned by HealthSouth to do marketing in Indianapolis not just for the Hospital but for all HealthSouth facilities in the surrounding areas. Snow Dep. at 85; Stover Dep. at 92, Walker Dep. at 62; Butler Dec. § 3. Snow's new duties presented substantial, albeit temporary, difficulties for her because of the broken leg that she suffered in a snowmobile accident in December of 1997 and the subsequent surgical procedures that she required. Snow Dep. at 187 and Ex. 8. For her first surgery, Snow requested and was granted FMLA leave on December 29, 1997. Snow Dep. at 195 and Ex. 10. She returned to work on February 2, 1998, with temporary restrictions. Id. For a considerable time thereafter, she remained unable to walk or drive without assistance. Snow Dep. at 168-70; Snow Aff. § 9. As a result, she was limited to working within the Hospital, except when she could be driven out into the field by one of the marketing liaisons. Snow Dep. at 168-9. By April, she was able to drive herself again, and by the beginning of May, she was able to walk more comfortably. Snow Dep. at 169-70. However, because her leg did not heal properly, she required a second surgical procedure, for which she was granted a second FMLA leave on May 15. Snow Dep. at 197 and Ex. 11; Swope Dep. at 17-18. How much Snow was expected to increase her direct marketing duties was not made clear to her until she attempted to return to work on June 1 after her second surgery. Snow Dep. at 204-5. Although Snow was temporarily restricted to only non-weight bearing activities, Snow Dep. at 200 and Ex. 14, she felt that she could perform all of her in-hospital tasks as well as some of her other marketing tasks, just as she had after her first surgery, using a specially prepared boot and crutches. Snow Dep. at 169-70. HealthSouth told her, however, that she could not return to work until she was physically able to perform all of her duties. Snow Dep. at 170, 201-2, 204-5; Walker Dep. at 105; Deposition of human resources officer Patricia Swope ("Swope Dep.") at 35-6. According to Walker, that meant Snow must be able to spend 75% of her working hours out in the field pursuing marketing contacts and patient referrals. Walker Dep. at 105. That was the typical expectation for a marketing coordinator under the HealthSouth system. Stover Dep. at 32.
On July 13, Snow's doctor released her to return to work without restrictions. Snow Dep. at 202. In particular, she was authorized to drive (though still needing the crutches and boot), and to resume making marketing calls. Id. at 203. Snow stopped using her crutches some time in September, but still needed a cane (at least when the weather was poor) until the time when she was fired in October. Snow Dep. at 169-70, 184.
While Snow was out on her second FMLA leave, HealthSouth investigated the possibility of discharging her. Bailey Dep. at 110; Swope Dep. at 32-3. HealthSouth officials were concerned that essential duties were not being performed and that, even upon Snow's return, her injury might significantly restrict her ability to do her job. Bailey Dep. at 111; Swope Dep. at 29, 31. Either Walker or Maxhimer suggested that Snow might be terminated based on the "key employee" exception to the FMLA. 29 U.S.C. § 2614(b); Bailey Dep. at 109-10. HealthSouth rejected this option, however, because it decided that Snow did not meet all the criteria for being a key employee. Swope Dep. at 32-3. In the mean time, Bailey performed the standard six month review of Snow's job performance some time at the end of June or beginning of July. Bailey gave Snow a "3" out of "4" in several areas including leadership. Bailey Dep., Ex. 9. Bailey's overall grade for Snow was a "2" out of "4", but he explicitly stated that he considered that to be satisfactory. Bailey Dep. at 63, 68, and Ex. 9. He rated her a "2" because "she didn't get a 3 in all categories, so she scored a 2. I felt her performance was acceptable . . . generally . . . but there were areas that needed improvement." Bailey Dep. at 68. Upon Snow's return after her second FMLA leave, HealthSouth assigned her to a new marketing territory, business and industry (including workers' compensation), with which Snow had little familiarity because Kamm had been marketing it for more than a year. Snow Dep. at 181-2. Walker, who had apparently stepped in while Snow was on leave, continued to run the weekly marketing meetings whenever she was there. Simpson Dep. at 48; Snow Dep. at 178. Walker also made several remarks to Snow and to the marketing staff criticizing Snow for having been absent from meetings. Snow Dep. at 272, 277-80, 292-3; Simpson Dep. at 48.
On July 21, eight days after Snow returned from her FMLA leave, Walker gave Snow a "performance improving action plan" ("action plan"). Snow Dep. at 217-8 and Ex. 17; Walker Dep. at 116. The plan required Snow to double the number of sales calls that she made. Simpson Dep. at 41-2; Snow Dep. at 176; Snow Aff. § 4; Walker Dep. at 116-7 and Ex. 18, 19. It also required her to increase the ADC counts for the Hospital to forty-eight in August, fifty-two in September, and fifty-six in October.
Id. The latter number would have required that the Hospital be filled to 100% capacity for the entire month of October, even though (as Walker knew) the Hospital's ADC's typically hovered around forty each month and had never been as high as forty-eight for an entire month. Walker Dep. at 117-8, 123. The original budget set by Hospital administrator Bailey and Comptroller Bruce Stewart at the beginning of the year called for an annual average ADC of forty-eight for 1998. Bailey Dep. at 78-9; Walker Dep. at 110, 119-20. The actual ADC's for the first six months under Bailey's budget, from February to July 1998, were: 37.6, 40.16, 39.1, 36.26, 32.4, and 42.1. Defendants' Statement of Material Facts 70 (citing Snow Dep. at 134-5, 140-41, 145-51, 153-4), According to HealthSouth, the ADC numbers in the action plan were set so high in order to make up for the lower numbers achieved in the first half of 1998. Bailey Dep. at 78. According to Hospital administrator Bailey, though, the numbers in the action plan were unattainable. Bailey Dep. at 78. Bailey further thought that it was unreasonable to require Snow to obtain them in such a short amount of time. Bailey Dep. at 80. Market conditions also favored declining rather than increasing patient counts. Specifically, the Balanced Budget Act of 1997, 111 Stat 251, which took effect in fiscal year 1998, caused a substantial reduction in Medicare reimbursements. Max Dec. § 14. This resulted in severe financial pressure on the Hospital. Max Dec. § 16. New strategies were needed to raise revenues and maintain viability. Max Dec. § 17. In addition, on July 1, 1998, HealthSouth closed the subacute unit of the Hospital which contained eighteen beds. The impact of this closing was not immediate because the current patients were "transitioned" into acute rehabilitation, but no new subacute patients were admitted. Stover Dep. at 84.
The Court cannot discern any logic to this process beyond the fact that Walker set the numbers in the action plan according to her own judgment. In his deposition, Bailey indicates that he expected, or rather hoped, that the numbers would increase from the beginning of the year to the end. "[W]e budgeted on a sliding scale . . . trying to give us some time to build . . . ." Bailey Dep. at 78. HealthSouth also asserts that Bailey and Stewart had budgeted specific monthly ADC's 41.9, 44.2, 48.4, 45.5, 44.8, and 45.5 for February to July. Defendants' Statement of Material Facts 70 (citing Snow Dep. at 134-5, 140-41, 145-51, 153-4). Presumably, then, Bailey and Stewart budgeted ADC's for the rest of the year too. However, HealthSouth does not say what these were. Therefore, the Court must assume that Walker, not Bailey, is responsible for the ADC's that were in the action plan given to Snow.
Both marketing liaisons Kamm and Simpson were also given similar action plans with the same targeted ADC's for the months of August, September, and October. Snow Dep. at 221; Walker Dep. at 116. When Simpson and Snow complained to Walker that the numbers in their respective action plans were too high, Walker indicated to them that the numbers were only goals, and not quotas which might subject them to disciplinary action. Simpson Dep. at 42-3; Snow Dep. at 217-9. Walker also characterized an ADC of forty as good. Walker Dep. at 101-2.
On September 1, Snow received a second evaluation. Bailey Dep. at 91 and Ex. 13; Snow Dep. Ex. 20. At about the same time, Simpson and Kamm also received second evaluations. Bailey Dep. at 96 and Exs. 14, 15. According to Bailey, Walker prepared these second evaluations. Bailey Dep. at 91-92. Simpson also believed that Walker prepared them. Simpson Dep. at 31-32. However, Walker explicitly denies preparing Snow's evaluation, admitting only that she provided some input. Walker Dep. at 150-1. Maxhimer signed the evaluations and confirms that he reviewed the results with Bailey and/or Walker before signing them, but he denies participating in the evaluation process. Max Dep. at 98. The second evaluations rated the performances of Snow, Simpson, and Kamm unsatisfactory. In particular, Snow was given an overall rating of "1" out of "4". Snow Dep., Ex. 20; Bailey Dep. at 96 and Exs. 14, 15. Although Bailey did not agree with the harsh ratings, Bailey Dep. at 84, 95, HealthSouth decided on the basis of the ratings to put all three women on probation in the beginning of September. Snow Dep., Ex. 20; Bailey Dep., Exs 14, 15. Walker informed them that unsatisfactory progress at any time during the probationary period would result in termination. Id.
After the ADC's for the Hospital fell in August and September to 36.4 and 35.2 respectively, Snow Dep. at 156, 158, Snow, at age 66, was discharged by HealthSouth on October 18, 1998. Snow Aff. § 3. Walker told Snow explicitly that she was being fired for not meeting her census goals. Snow Dep. at 270 (admitted by HealthSouth in its Reply to Snow's Additional Material Facts, fact 331). Attaining high ADC numbers for the Hospital was the primary objective of her job. Snow Dep. at 126-7, 137, 202. Despite the fact that Simpson and Kamm were also responsible for the low ADC numbers, they were not fired along with Snow. Stover Dep. at 95-96; Walker Dep. at 81, 132-33. Indeed, the performance ratings of both marketing liaisons were promptly upgraded, and they were taken off probation. Stover Dep. at 104-105 and Ex. 8.; Bailey Dep. 100-1 and Exs 14, 16.
No one was hired immediately to take Snow's place as marketing coordinator. Instead, the new Hospital administrator Stover, who replaced Bailey on October 1, 1998, temporarily assumed the marketing coordinator's duties as well. Stover Dep. at 5. In September1999, almost a year after Snow was discharged, Jill Goss ("Goss"), age fifty-four, was hired to fill the marketing coordinator position. Swope Dec. § 4.
After Snow's termination, Stover decided to lower the Hospital's annually budgeted ADC from forty-eight to forty-three in order "to more accurately reflect the potential for the Hospital as the result of the elimination of the Hospital's subacute unit." Id., par 6; Simpson Dep. at 54 and Ex. 8. Still, the Hospital failed to meet Stover's lowered budget, averaging 35.7 for all of 1999, essentially the same as it did for all of 1998, and much lower than the 42.7 it averaged for all of 1997. Simpson Dep. at 56-57 and Ex. 8. No one was disciplined for this failure to meet the budget. Simpson Dep. at 59. Stover attributed the continuing low ADC numbers to the impact of the closing of the subacute unit. Stover Dep. at 83. The Hospital used to market two levels of care, but after the closing of the subacute unit, it could only market one. Id. at 84. This made referral patterns substantially more difficult because the Kokomo market had "a lot of orthopaedic patients and stroke patients going into a skilled [(i.e. subacute)] level of care, . . . and [the] referral patterns that were driven by physicians and commercial payers and discharge planners had been established . . . . [T]he skilled level of care, although it does not provide as much rehab, or as intensive nursing, is a cheaper level of care. . . . The outcomes for the patient are not as good, but it is a less expensive service." Id. at 84-5. According to Stover, the referral community had to be educated that although subacute units do cost less per day, the length of stay in acute rehab is generally shorter and the outcomes for the patient are often better. Id. at 85. Walker characterized the entire year of 1999 with its low ADC's as a "rebuilding year" for the Hospital. Walker Dep. at 101. Even after Goss took over the marketing department in September of 1999, the Hospital continued to fail to meet its budgeted ADC's, averaging 38.6 from October 1999 through May 2000. Simpson Dep., Ex. 8; Walker Dep., Ex. 13. The ADC's also exhibited a strong downward trend. From January to May, 2000, the ADC's were: 42, 41, 39, 36, and 31 respectively. Walker Dep. at 77 and Ex. 13; Swope Dec. § 5. As of the beginning of June, 2000, no disciplinary action had been initiated as a result of the low numbers. Walker Dep. at 99.
The Court understands this to mean that physicians and discharge planners typically assigned orthopedic and stroke patients to subacute units in order to get them skilled care at less cost. As a result, after July 1, the Hospital was no longer getting those referrals.
Walker was deposed in June, and indicated (at that time) that no such action had taken place.
After the ADC fell to 31 in May, Goss was given an unsatisfactory evaluation in June and then placed on probation. Swope Dec. §§ 5-7. Subsequently, the Hospital's ADC's improved to 41 in June, 40 in July, 39 in August, and an average of 42 from September through November. Id. HealthSouth did not terminate Goss as marketing coordinator. HealthSouth's Reply to Snow's Additional Material Fact # 345.
At the time Snow was fired, she knew that the marketing positions at St. Joseph's Hospital and Howard Community Hospital in Kokomo were not available. Snow Dep. at 58. Because she wanted to stay in Kokomo and because she had prior experience in real estate, she sought a position in that field with Fortune Management in November of 1998. Snow Dep. at 56, 62. Snow earned approximately $30,000 in commissions with Fortune Management in 1969 and approximately $18,000 through July of 2000. Snow Dep. at 65.
II. STANDARDS
A. SUMMARY JUDGMENT
Summary judgment is granted "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). An issue is genuine only if the evidence is such that a jury reasonably could return a verdict for the opposing party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A disputed fact is material only if it might affect the outcome of the suit in light of the substantive law. Id. "In deciding a motion for summary judgment, the court will conclude that there is no genuine issue as to any proposed finding of fact to which no response is set out." Hartley v. Wisconsin Bell, Incorporated 124 F.3d 887, 890 (7th Cir. 1997); Fed.R.Civ.P. 56(e).
The moving party has the initial burden to show the absence of genuine issues of material fact. Schroeder v. Barth, 969 F.2d 421, 423 (7th Cir. 1992). This burden does not entail producing evidence to negate claims on which the opposing party has the burden of proof. See Green v. Whiteco Indus., Inc., 17 F.3d 199, 201 n. 3 (7th Cir. 1994). The party opposing a summary judgment motion bears an affirmative burden of presenting evidence that a disputed issue of material fact exists. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986); Scherer v. Rockwell Int'l Corp., 975 F.2d 356, 360 (7th Cir. 1992). The opposing party must "go beyond the pleadings" and set forth specific facts to show that a genuine issue exists. See Hong v. Children's Mem. Hosp., 993 F.2d 1257, 1261 (7th Cir. 1993), cert. denied, 511 U.S. 1005 (1994). This burden cannot be met with conclusory statements or speculation, see Weihaupt v. American Med. Ass'n, 874 F.2d 419, 428 (7th Cir. 1989), but only with appropriate citations to relevant admissible evidence. See Local Rule 56.1; Brasic v. Heinemann's Inc., Bakeries, 121 F.3d 281, 286 (7th Cir. 1997); Waldridge v. American Hoechst Corp., 24 F.3d 918, 923-24 (7th Cir. 1994). Evidence sufficient to support every essential element of the claims on which the opposing party bears the burden of proof must be cited. See Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
In considering a summary judgment motion, the Court must draw all reasonable inferences "in the light most favorable" to the opposing party. Spraying Sys. Co. v. Delavan, Inc., 975 F.2d 387, 392 (7th Cir. 1992). The Court must review all the evidence in the record, without making credibility determinations or weighing the evidence. Reeves v. Sanderson Plumbing Products Inc., 126 S.Ct. 2097, 2110 (2000). If a reasonable fact finder could find for the opposing party, then summary judgment is inappropriate. Shields Enters., Inc. v. First Chicago Corp., 975 F.2d 1290, 1294 (7th Cir. 1992). Conversely, if the standard embraced in Rule 56(c) is met and the Court determines that a reasonable jury could not find for the party opposing the motion, then summary judgment is mandatory. Celotex Corp., 477 U.S. at 322-23; Shields Enters., 975 F.2d at 1294.
B. THE MCDONNELL DOUGLASS FRAMEWORK
To state a claim for discrimination, a plaintiff must either offer direct evidence of discrimination, or use the indirect, burden-shifting, method of proof described in McDonnell Douglas v. Green, 411 U.S. 792 (1973). In the direct method, a plaintiff must provide evidence that the fact finder reasonably may interpret as the employer's acknowledgment of discriminatory intent. Chiaramonte v. Fashion Bed Group, Inc., 129 F.3d 391, 396 (7th Cir. 1997), cert. denied, 523 U.S. 1118 (1998). Such evidence must demonstrate that the person who made the contested employment decision was motivated to discriminate and that the motive to discriminate was the determining factor in the decision. Id. (citing Cheek v. Peabody Coal Co., 97 F.3d 200, 203 (7th Cir. 1996)).
If an employee cannot provide sufficient direct evidence of discrimination, however, he or she may adopt the burden-shifting method of proof first articulated in McDonnell Douglas, and refined in Texas Dept. of Community Aff. v. Burdine, 450 U.S. 248 (1981), St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993), and Reeves v. Sanderson Plumbing Products Inc., 126 S.Ct. 2097, 2108-9 (2000). This approach is founded on the common sense observation that an employee who has been doing well in his or her job would not ordinarily suffer an adverse job action, particularly not a summary discharge. Therefore, if an employee performing satisfactorily is suddenly subjected to more harsh treatment than other comparable employees, the motives of the employer become suspect enough to warrant further explanation.
Burdine, 450 U.S. at 253-4. Using the burden-shifting paradigm, an employee may establish a prima facie case of discrimination by showing:
1. membership in a protected group; 2. satisfactory job performance; 3. an adverse employment action, such as a discharge; and 4. otherwise similarly-situated employees who were treated more favorably.
Chiaramonte, 129 F.3d at 398 (citing O'Connor v. Consolidated Coin Caterers Corp., 517 U.S. 308, 312-3 (1996)). Upon establishing all four elements, the employee will enjoy a rebuttable presumption of discrimination that shifts the burden to the employer to "articulate a legitimate, nondiscriminatory reason" for the adverse employment action. Anderson v. Baxter Healthcare Corp., 13 F.3d 1120, 1122 (7th Cir. 1994). The employer must do so by producing evidence, whether or not persuasive, of a nondiscriminatory motive. Hicks, 509 U.S. at 507.
The McDonnell-Douglas presumption is only a "procedural device" intended to establish an order of proof and production, not a means of deciding the merits. Hicks, 113 S.Ct. at 2755.
Once the employer articulates a legitimate reason, the presumption of discrimination dissolves, and the burden of production shifts back to the plaintiff "to show that the employer's proffered reasons are a pretext for . . . discrimination." Anderson, 13 F.3d at 1122 (citing Weihaupt, 874 F.2d at 426-27). The plaintiff must prove either that the employers proffered reasons are unworthy of credence or that a discriminatory reason more likely motivated the decision. Freeman v. Madison Metropolitan School District, 231 F.3d 374, 379 (7th Cir. 2000). A plaintiff who successfully establishes this need not prove further by direct evidence that the employer's real motive was to discriminate, provided that the trier of fact could reasonably infer the employer's true intent from the failure to give a credible explanation. Reeves, 126 S.Ct. at 2108-9. The ultimate burden of persuasion on the issue, however, always remains with the plaintiff. Id. at 2106.
C. THE ADEA
The purpose of the ADEA, 29 U.S.C. § 621 et seq., is " to promote employment of older persons based on their ability rather than age [and] to prohibit arbitrary age discrimination in employment." 29 U.S.C. § 621(b) The Act provides that "it shall be unlawful for an employer — (1) to discharge any individual or otherwise discriminate against any individual . . . because of such individual's age." 29 U.S.C.A § 623(a)(1).
The Seventh Circuit has adapted the McDonnell Douglass framework (originally intended only for Title VII claims) to apply to age discrimination as well. See McCoy v. WGN Continental Broadcasting Co., 957 F.2d 368, 371 (7th Cir. 1992) (quoting Oxman v. WLS-TV, 846 F.2d 448, 452 (7th Cir. 1988)). Any plaintiff who is over forty years old is a member of the protected group. Chiaramonte, 129 F.3d at 398. In making a prima facie case of age discrimination, the plaintiff must compare to some other employee who was substantially younger, but otherwise similarly situated. Id. The Seventh Circuit has established a presumption that an employee ten years younger than the plaintiff is substantially younger. Hartley v. Wisconsin Bell, Inc., 124 F.3d 887 (7th Cir. 1997)
D. THE FMLA
The Family and Medical Leave Act ("FMLA"), 29 U.S.C. § 2601 et. seq., was passed in 1993 to "help men and women balance the conflicting demands of work and personal life." See Price v. City of Fort Wayne, 117 F.3d 1022, 1024 (7th Cir. 1997). "It does so by recognizing that there will be times in a person's life when that person is incapable of performing [his or her] work duties for medical reasons." Id. The statute makes specific findings about the conditions that prompted the passage of the act, one of which is that "there is inadequate job security for employees who have serious health conditions that prevent them from working for temporary periods." 29 U.S.C. § 2601(a)(4). The stated purposes for the legislation are "to balance the demands of the workplace with the needs of families" and "to entitle employees to take reasonable leave for medical reasons." 29 U.S.C. § 2601(b)(1), (2). The statute provides:
(a)(1) Entitlement to Leave . . . an eligible employee shall be entitled to a total of 12 workweeks of leave during any 12 month period for one or more of the following: * * * (D) Because of a serious health condition that makes the employee unable to perform the functions of the position of such employee. * * * (b) Leave taken Intermittently . . . leave under paragraph (C) or (D) of subsection (a)(1) . . . may be taken intermittently or on a reduced leave schedule when medically necessary.29 U.S.C. § 2612.
A serious health condition is an "illness, injury, impairment, or physical or mental condition that involves — (A) inpatient care in a hospital, hospice or residential medical care facility; or (B) continuing treatment by a health care provider." 29 U.S.C. § 2611(11). Determining whether an employee's condition qualifies as a serious health condition is a legal question, and the employee must demonstrate the seriousness of his or her condition by a preponderance of the evidence. See Haefling v. United Parcel Serv., Inc., 169 F.3d 494, 499 (7th Cir. 1999).
Once the employee has recovered sufficiently to return from FMLA leave, he or she "shall be entitled" to be restored to his or her former position, or an "equivalent position with equivalent employment benefits, pay, and other terms and conditions of employment." 29 U.S.C. § 2614(a). To enjoy this right, the employee must have been both eligible for FMLA leave, and have taken a leave for the intended purpose. Id. Nothing, however, in § 2614 "shall be construed to entitle any restored employee to . . . (B) any right, benefit, or position of employment other than the right, benefit or position to which the employee would have been entitled had the employee not taken the leave." 29 U.S.C. § 2614(a)(3). Unlike anti-discrimination statutes, such as Title VII, the ADEA, and the ADA, these provisions of the FMLA primarily grant substantive rights to eligible employees, creating entitlements the employer must honor. See Diaz v. Fort Wayne Foundry, 131 F.3d 711, 712 (7th Cir. 1997). "The question in a discrimination case is whether the employer treated one employee worse than another on account of [considerations] (race, religion, sex, age, etc.) that a statute makes [illegal]." Id. An employer is not prohibited, however, from treating all employees equally poorly. Id. By contrast, an employer that violates the substantive rights of an employee "may not defend by saying that it treated all employees identically." Id. Laws like the FMLA set "substantive floors," or minimum standards for employment. Id.; see also Hodgens v. General Dynamics Corp., 144 F.3d 151, 159, n. 2 (1st Cir. 1998) (noting that the FMLA is based on the same principle as child labor, minimum wage, and other laws setting minimum standards). However, the FMLA also contains "anti-discrimination" components, one of which makes it unlawful "for any employer to discharge or in any other manner discriminate against any individual for opposing any practice made unlawful under this subchapter." 29 U.S.C. § 2615(a)(2). Courts have construed this portion of the statute to prohibit employers from discriminating against their employees for exercising their rights under the substantive portions of the statute. See Hodgens, 144 F.3d at 160. The regulations implementing the FMLA also make it clear that an employer may not discriminate against an employee who has used FMLA leave. Id. (citing 29 C.F.R. § 825.220(c)). Employers also may not "use the taking of FMLA leave as a "negative factor" in employment actions, such as hiring, promotion, or [discipline]." 29 C.F.R. § 825.220(c).
The most common way to recover under the anti-discrimination provision is for the employee to make a showing similar to that required for a retaliation case under other anti-discrimination statutes. See Hodgens, 144 F.3d at 160, and King v. Preferred Technical Grp., 166 F.3d 887, 891-2 (7th Cir. 1999). The burden falls on the employee to show that the employer has discriminated or retaliated against him or her for exercising rights granted by the FMLA. A plaintiff alleging a retaliatory discharge under the FMLA "must . . . establish that the employer engaged in intentional discrimination." King, 166 F.3d at 892. As in other discrimination settings, the employee usually will be unable to establish direct evidence of the employer's intent to retaliate. Therefore, the Seventh Circuit has endorsed the burden-shifting analysis common to other anti-discrimination cases. See King, 166 F.3d at 892-93 (extending the full McDonnell-Douglas framework to FMLA anti-discrimination cases). The prima facie case, under a burden-shifting analysis, for retaliatory discharge requires the employee to show that:
1. he or she exercised a protected right under the FMLA; 2. he or she was adversely affected by an employment decision; 3. a causal connection existed between the exercise of the protected activity and the adverse employment action.
Id. (citing Essex v. United Parcel Serv., Inc., 111 F.3d 1304, 1308-09 (7th Cir. 1997) which delineates the requirements for the establishment of a prima facie case of retaliatory discharge in violation of Title VII); see also Hodgens, 144 F.3d at 161. The burden is on the plaintiff to prove each of these elements by a preponderance of the evidence. Diaz, 131 F.3d at 713.
The "causal link" between the protected activity and the adverse employment action must be such that the employer would not have taken the adverse action "but for" the employee's having engaged in the protected activity. King, 166 F.3d at 892. Temporal proximity between the protected activity and the adverse employment action is the most common means of proving a causal link. Id. at 893. Statements by a supervisor that reveal animus against the employee for exercising a protected right also can suffice. See Geier v. Medtronic, Inc., 99 F.3d 238, 242 (7th Cir. 1996).
The FMLA provides a means for employees who succeed in proving retaliatory discharge to enforce both their substantive and anti-discriminatory rights under the statute:
(a)(1) Any employer who violates section 2615 of this title shall be liable to any eligible employee affected —
(A) for damages equal to —
(i) the amount of —
(I) any wages, salary, employment benefits, or other compensation denied or lost to such employee by reason of the violation; or
(II) . . . any actual monetary losses sustained by the employee as a direct result of the violation . . . .
(ii) the interest on the amount described in clause (I) calculated at the prevailing rate; and
(iii) an additional amount as liquidated damages equal to the sum of the amount described in clause (I) and the interest described in clause (ii), except . . . if an employer . . . proves . . . that the act or omission . . . was in good faith and that the employer had reasonable grounds for believing that the act or omission was not a violation of section 2615. . . .
(B) for such equitable relief as may be appropriate, including employment, reinstatement, and promotion.29 U.S.C. § 2617. In other words, the affected individual is entitled to: (1) backpay, which covers all compensation lost by reason of the violation; (2) liquidated damages, which essentially doubles the backpay award; and (3) equitable relief, where it is appropriate.
E. THE ADA
There are also two broad types of disability claims under the ADA: failure to accommodate claims and discrimination claims. 42 U.S.C. § 12111 et. seq. See e.g. Foster v. Arthur Andersen, LLP, 168 F.3d 1029, 1032 (7th Cir. 1999); Weigel v. Target Stores, 122 F.3d 461, 464 (7th Cir. 1997). The only issue raised in this case, however, is discrimination.
The ADA prohibits an employer from discriminating "against a qualified individual . . . because of the disability of such individual with regard to job application procedures, . . . hiring, advancement, or discharge, [or] other terms, conditions, and privileges of employment." 42 U.S.C. § 12112(a). To establish a prima facie case of disability discrimination, a plaintiff must show that: (1) he is disabled within the meaning of the ADA, (2) he is qualified to perform the essential functions of the job either with or without reasonable accommodation, and (3) he suffered from an adverse employment action because of his disability. 42 U.S.C. § 12111(8); Moore v. J. B. Hunt Transport, Inc., 221 F.3d 944, 950 (7th Cir. 2000).
A disability can take one of three forms: "(A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual; (B) a record of such an impairment; or (C) being regarded as having such an impairment." 42 U.S.C. § 12102(2). Major life activities include "caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working." 29 C.F.R. § 1630.2(i).
The regulations promulgated under the ADA further explain that being "regarded as" having a disability means: (1) ha[ving] a physical or mental impairment that does not substantially limit major life activities but is treated by a covered entity as constituting such limitation; (2) ha[ving] a physical or mental impairment that substantially limits major life activities only as a result of the attitudes of others toward such impairment; or (3) ha[ving] none of the impairments defined in . . . this section but [being] treated by a covered entity as having a substantially limiting impairment. 29 C.F.R. S 1630.2(l). The Supreme Court has explained the criteria in slightly different language. An individual can demonstrate that he falls within the "regarded as" definition of a disability by showing that: "(1) a covered entity mistakenly believes that [he] has a physical impairment that substantially limits one or more major life activities, or (2) a covered entity mistakenly believes that an actual, nonlimiting impairment substantially limits one or more major life activities." Sutton v. United Air Lines, Inc., 527 U.S. 471, 119 S.Ct. 2139, 2149-50, 144 L.Ed.2d 450 (1999).
III. DISCUSSION
A. THE ADEA CLAIM
Applying the McDonnell Douglas framework, it is undisputed that Snow was discharged from her job and that she was sixty-six years old at the time. That leaves only two elements of Snow's prima facie case to consider: (2) whether she was performing her job adequately at the time of her firing; and (4) whether substantially younger employees, in similar positions to her, were treated more favorably by HealthSouth.
1. Satisfactory Job Performance
Snow need only present concrete evidence which, if uncontroverted by the employer, would be enough to persuade a reasonable fact finder that she was performing her job adequately. Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 253-4 (1981). See also Anderson v. Baxter Healthcare Corp., 13 F.3d 1120, 1124-25 (7th Cir. 1994) (requiring specific facts showing satisfactory performance in order to create a genuine issue of material fact).
Snow presents enough evidence to meet this minimal burden. First, she cites her six month evaluation ("first evaluation") performed at the end of June 1998 by Bailey, who was the hospital's chief administrator at the time. Bailey rated Snow's overall performance satisfactory. This indicates that Snow was meeting HealthSouth's expectations as late as July 13 when she returned to work after her second FMLA leave. Second, Snow points to objective evidence that the marketing department had been effective both at helping to develop programs that serve the community and at improving the Hospital's visibility in the community. Specifically, she notes three programs which she helped organize: a Parkinson program, an Oncology program, and a Second Chance program. She also notes that she was instrumental in helping the Hospital win an award from the City of Kokomo just prior to her termination. Snow Aff. § 24; Stover Dep. at 46. Third, Snow cites the fact that the average daily patient census counts ("ADC's"), the ultimate indicator of marketing success, steadily improved during her tenure as marketing director/coordinator, from sixteen in 1994 to an average of about forty for 1997 and the first have of 1998. In July, when Snow received her action plan for alleged poor performance, the ADC count for the month was 42.1.
There is some minor question about the timing of this evaluation, but the Court deems the differences between the parties' views insignificant.
Of course, the question of adequate performance must be analyzed in light of the employer's legitimate expectations. See e.g. Biolochini v. General Electric Co., 167 F.3d 1151, 1154 (7th Cir. 1999). But that does not mean that the employer gets to articulate its particular reasons for finding the employee's performance inadequate at this stage of the McDonnell Douglass argument. Burdine, 450 U.S. at 254. The proper question is whether Snow's argument would suffice "if the employer says nothing." Id. Given the evidence that Snow has presented, and no more, a reasonable trier of fact could be persuaded that Snow was meeting HealthSouth's legitimate expectations.
2. Similarly Situated Employees
Snow must identify some other employee or group of employees who were: (a) substantially younger than Snow; (b) similarly situated to Snow in their employment; and (c) treated more favorably by HealthSouth. Chiaramonte v. Fashion Bed Group, Inc.,129 F.3d 391, 398 (7th Cir. 1997), cert denied, 523 U.S. 1118 (1998). The question of whether two employees are similarly situated depends upon a number of factors such as: (1) whether they were subject to the same standards; (2) whether they engaged in similar conduct for which only one suffered an adverse employment action; and (3) whether they dealt with the same supervisor. Radue v. Kimberly-Clarke Corporation, 219 F.3d 617-8 (7th Cir. 2000). The determination is highly fact sensitive.
Snow makes three colorable attempts to identify similarly situated employees. First, she compares herself to the four marketing liaisons: Simpson, Kamm, Vincent, and Dean. Second, she compares herself to the new hospital administrator Stover who temporarily assumed the marketing coordinator duties after Snow was fired. Third, she compares herself to Goss, who replaced Snow as marketing coordinator, nearly a year after Snow was fired.
The Court does not need to discuss Snow's attempted comparison to Stover in any detail. Stover was primarily the administrator of the Hospital, even if she did take on some marketing duties. Her job was obviously not comparable. The Court can also dispense with consideration of Vincent and Kaufmann, if for no other reason than that they had a different supervisor, Butler rather than Walker, making the relevant job decisions. Different employment actions taken by different supervisors, even under very similar circumstances, cannot suffice to raise an inference of intent to discriminate, absent a showing that the actions being compared were somehow linked or coordinated. Radue, 219 F.3d at 617-8. Snow asserts that corporate vice president Maxhimer may have been the true decision maker, linking the two supervisors. But she has not established facts sufficient to support that theory.
As for Simpson and Kamm, both of whom are substantially younger than Snow, the essence of Snow's argument is that under HealthSouth management: (1) Snow became just another marketing liaison, despite her job title; (2) all three marketers had the same supervisor making the relevant employment decisions; (3) all three marketers were put on probation for failing to achieve sufficient ADC's; but (4) only Snow was fired. These assertions, however, are only partially supported by the facts in the record. It is true that Walker, acting in a supervisory role, made the pivotal decision to put all three marketers on probation. This is significant towards finding that the three were similarly situated, but not determinative because it does not address the other Radue factors, such as whether their actual duties were substantially similar and whether they were subject to the same standards in overall job performance. Even if the Court assumes, taking the facts in the light most favorable to Snow, that Snow spent 75% of her time doing the exact same marketing tasks as Simpson and Kamm, the fact remains that Snow was expected to spend the other 25% of her job performing a variety of administrative and planning duties that Simpson and Kamm did not have to perform. Snow has failed to provide evidence (as she must) that what she did with that remaining 25% of her job was so insignificant as to leave her prima facie inference of similarity in every important respect but age undisturbed. In fact, quite to the contrary, Snow touts some of her achievements, such as developing the Hospital's Parkinsons, Oncology, and Second Chance programs and defends some of her other activities such as her use of the various strategic marketing tools that HealthSouth provided for her. Obviously, establishing marketing plans and helping to develop Hospital programs that would fill patient beds were an important part of Snow's job. By contrast, the evidence only shows that Simpson and Kamm were responsible for direct marketing: calling on physicians, hospitals, nursing homes, businesses, community organizations, and other possible sources of patient referrals.
All of this strongly suggests that HealthSouth paid Snow a substantially greater salary than Simpson and Kamm for a reason: it expected her to take on significantly greater responsibilities. Indeed, Snow acknowledges that she remained, at all times, the leader of the marketing department. Therefore, once HealthSouth made a determination that the marketing department was performing poorly, it was only natural that it decided to hold Snow, as leader of that department, primarily accountable. No reasonable inference of discrimination can be drawn from that decision. The marketing coordinator and marketing liaison positions simply are not comparable.
In her brief, she only disputes HealthSouth's claim that she was an ineffective leader.
Snow's attempted comparison to Goss is more on target, even if her approach is not. Citing Hoffman v. Primedia Special Interests Publications, 217 F.3d 522 (7th Cir. 2000), Snow seeks to apply the specialized replacement-hire form of the McDonnell Douglass prima facie case. Because Snow was sixty-six at the time she was fired and Goss was fifty-four when she was hired, Snow merely asserts that the "[ten year] presumption of substantially younger set forth in Hartley v. Wisconsin Bell, Inc., 124 F.3d 887 (7th Cir. 1997)" has been met. Snow Response Brief at 6.
The Court agrees that if the replacement-hire paradigm were appropriate for this case, Snow would have met her prima facie burden. But, Goss was not a replacement-hire in the sense intended by Hoffman and Hartley because she was hired more than eleven months after Snow was fired. During the intervening period, at least some of the circumstances relating to the job of marketing coordinator presumably would have changed. Therefore, the burden is on Snow to show that Goss was similarly situated to her but treated more favorably, even in light of the likely changed circumstances and expectations for the marketing coordinator job.
Although Snow seems to have thought that the replacement-hire prima facie case would suffice, her brief does point to certain key facts suggesting that Goss was similarly situated to her in other important respects as well: (A) Goss was hired to perform the same basic marketing coordinator duties as Snow had been performing; (B) Goss likewise failed to meet the Hospital's budgeted ADC goals; (C) Goss failed to achieve ADC numbers any higher than Snow was achieving at the time she was fired; and (D) Goss's ADC numbers deteriorated sharply from January to May of 2000.
When considered in light of Radue, Snow's additional facts amount to an argument that the three factors identified by the Radue court are satisfied in this case: (1) Goss was subject to the same standard of performance as Snow in terms of the ADC counts; (2) Goss engaged in the same undesirable conduct as Snow, namely failing to meet her ADC goals; and (3) the same supervisor, Walker, who had disciplined Snow was in a comparable position to discipline Goss. If a trier of fact could believe all three of these points, the trier of fact could certainly infer, based on Radue, that Snow and Goss were similarly situated despite the gap between the time when Snow was fired and the time that Goss was hired. Of course, Snow needs to do more than merely point out, as she does in one of her two arguments, that Goss did not achieve ADC counts any higher than Snow had achieved prior to being fired. A business is not required to keep its marketing targets unchanged over time. Goss was hired almost a year after Snow was fired. In that time, marketing conditions presumably would have changed, and HealthSouth's expectations presumably would have changed accordingly. Snow has provided no evidence to the contrary. On the other hand, HealthSouth has pointed to both the closing of the subacute unit of the Hospital and the dramatic reduction in Federal Medicare dollars available to the Hospital as having a strong negative impact on patient beds filled. Even if this negative impact already had begun to affect Snow's ADC numbers before she was fired, it is clear that HealthSouth perceived the problem to be more serious afterward. In fact, the new hospital director Stover, who had nothing to do with the decision to terminate Snow, decided to lower the annually budgeted ADC's from forty-eight to forty-three almost immediately after Snow was fired. She cited the more difficult marketing conditions as the reason for her decision. Snow's alternative argument — that Goss did not come close to achieving the lowered ADC targets either — is more on point. In principle, the annually budgeted ADC numbers ought to incorporate any changes in market conditions. Therefore, once they are set at whatever level management deems appropriate, the marketing department should be expected to achieve them if they are treated as quotas, or at least come close to achieving them if they are treated as goals. It follows that a reasonable trier of fact could find an underlying similarity between Goss and Snow in that both fell substantially short of their annually budgeted ADC's.
Of course, it is possible to quibble that Goss came closer to her targets then Snow did to hers. But the fact is that, through May, Goss had consistently missed hers by a substantial amount too. Moreover, her numbers were dropping off rapidly, going from forty-two in January to thirty-one in May. HealthSouth stressed in its brief that the most important measure of a marketing coordinator's success is the ADC counts and volume development, and that "[because of her failure to meet the census goals . . . [Snow] was given an Action Plan in July 1998 . . . ." HealthSouth Brief at 3. Therefore, a reasonable trier of fact could conclude that essentially the same discipline ought to have been applied to Goss for essentially the same reasons.
But it is not enough to show that Goss was similarly situated to Snow as of June, 2000. Snow must also show that she was treated differently. During the period from October, 1999 (when Goss was hired) through May of 2000, the Hospital's actual ADC's averaged 38.6, even though the budget set by Stover targeted 43. The time period is comparable to the period from December 1997 (when HealthSouth first began imposing its new management style on the marketing department) through July 1998 (when Snow was first disciplined). Not achieving the budgeted goal of 48 caused Snow to be put on an action plan in which new quotas were set for her that she could not achieve.
By contrast, Snow points out that, as of June 1, 2000, Goss had not been subjected to any form of discipline. According to Snow, this shows that Goss was treated more favorably than her for no apparent reason other than their age difference. The Court presumes that, at the time Snow argued this, she was unaware of the facts regarding Goss's discipline that were pointed out by HealthSouth in its Reply Brief and supporting documents. Nevertheless, Snow did not avail herself of an opportunity to file a Surreply either questioning the validity of these facts or arguing that they were not important. Therefore, the Court will take these facts as undisputed. On June 1, Goss received an evaluation that rated her overall performance as unsatisfactory. Consequently, she too was given an action plan and placed on probation by HealthSouth. After Goss received her action plan, the Hospital's ADC's immediately improved, from the low of 31 in May to an average of 41 over the next six months. It is true that Snow was fired and Goss was not. But this fact, alone, does not show that they were treated differently. To the contrary, Snow and Goss seem to have been treated the same up to the point of being put on probation. It is just that Goss's performance, as measured by the ADC's, dramatically improved, whereas Snow's did not. The Court cannot speculate. If the facts are not as they seem on their face, the burden is on Snow to show otherwise. This, she has failed to do.
Therefore, the Court holds that while Goss and Snow may have been similarly situated, they were not treated differently. Because all of Snow's other attempted comparisons were also unavailing, the Court must conclude that, despite Snow's sense that she was treated unfairly, she cannot establish a prima facie case of age discrimination under the McDonnell Douglass framework.
B. THE FMLA CLAIM
In a separate claim, Snow alleges that HealthSouth discharged her in retaliation for her having taken twelve weeks of medical leave during the first seven months of 1998. HealthSouth argues that Snow is not entitled to relief because, just as in the ADEA claim, she cannot point to anyone who was similarly situated to her. But, as pointed out above in the discussion of legal standards, the FMLA is not an anti-discrimination statute. It grants a substantive right to each employee to take as much as twelve weeks of leave for a serious medical condition without having to face retaliation from the employer. Therefore, HealthSouth's similarly situated argument is inapt. If an employer retaliates against an employee for taking a legitimate FMLA leave, the employer has violated that employee's rights and is subject to legal sanction regardless of how the employer treats other workers in similar situations.
HealthSouth does not contest that Snow's medical leave was statutorily protected. She suffered a serious injury which required surgery (twice) and a significant time to heal. Rather, HealthSouth contends that Snow's medical leave was not a factor in its decision to terminate her. However, Snow claims that her medical leave was the determinative factor and cites evidence to support her argument. First, she notes that HealthSouth investigated whether it could use the key employee exception to the FMLA to lawfully terminate her while she was on leave. HealthSouth ultimately decided that the exception did not apply. But there is no suggestion that HealthSouth did not truly believe that Snow was a key employee whose absence would cause serious harm to the Hospital's marketing program. It follows that a reasonable fact finder could not infer from the mere fact of HealthSouth's having investigated its legal options that it was motivated by a desire to retaliate illegally against Snow for using her FMLA leave. Second, Snow notes that HealthSouth forced her to take her full twelve weeks of FMLA leave, even though Snow thought she was ready to return much sooner after her second surgery. But this only shows that HealthSouth did not think she was physically ready to perform her duties yet, not that it wanted to fire her when she did return. Taken together, this evidence is insufficient to establish directly that HealthSouth was motivated by a desire to retaliate. Therefore, Snow rightfully chooses to employ the McDonnell Douglass burden- shifting approach. To establish a prima facie case of retaliatory discharge, Snow must show that: (1) she exercised a protected right in taking her FMLA leave; (2) she subsequently suffered an adverse employment decision (being discharged); and (3) she would not have been discharged, but for her having taken her FMLA leave. King 166 F.3d at 892-3.
The only element of her prima facie case challenged by HealthSouth is the causal link between Snow's having taken her legally protected medical leave and its decision to fire her. HealthSouth argues that Snow's discharge occurred approximately three months after her return to work, a delay long enough that the inference of retaliation cannot readily be drawn. See e.g. Hughes v. Derwinski, 967 F.2d 1168 (7th Cir. 1992) (Disciplinary letter received four months after exercise of statutorily protected right does not raise a reasonable inference of retaliation.). Snow responds by arguing that the discharge was the culmination of a "pattern" of retaliatory acts that began on July 13 when her marketing call responsibilities were doubled, continued with her receiving the action plan eight days later that set forth objectively unreasonable ADC goals, was followed by her receiving on September 1 a trumped up evaluation designed to justify putting her on probation, and culminated with her being fired on October 18 for failing to meet the goals set forth in the action plan during her probationary period.
Snow further notes other aspects of the timing that were suspect. Her required marketing calls were doubled at a time when she had just returned to work after her second FMLA leave and when she was severely limited in her ability to make marketing calls because she was still on crutches. The action plan with its unrealistic quotas was given to her less than a month after the Hospital closed its eighteen bed subacute unit, making it more difficult to solicit patients. In addition, the second evaluation, which rated her performance unsatisfactory, followed so closely upon the heals of her regular six month evaluation, which rated her performance satisfactory, that its credibility is questionable. Therefore, Snow cites Hunt-Golliday v. Metropolitan Water Reclamation District of Greater Chicago for the proposition that an inference of retaliation can be drawn from the temporal proximity and continuing nature of the allegedly hostile acts. 104 F.3d 1004, 1015 (7th Cir. 1997) (Six month period before firing was not too long to raise an inference of retaliation for statutorily protected activity, when employee was confronted by supervisor with hostility on the day she returned to work, then had her workload doubled, and then was suspended for chronic absenteeism pending final decision on firing.).
HealthSouth argues that it already had raised the marketing expectations for Snow long before she returned to work after her second FMLA leave in July of 1998 (even if Snow did not fully realize it yet). According to HealthSouth's analysis, this proves that the FMLA leave could not have been the cause of the heightened expectations. The Court does not see how it proves any such thing. Snow's leg was shattered at the end of 1997. HealthSouth concedes in its brief that "[p]laintiff's expectations were raised in late 1997 or early 1998 . . . ." HealthSouth Reply Brief at 27. Viewing that concession in the light most favorable to Snow, the Court assumes that even in HealthSouth's view, expectations were raised in early 1998, perhaps even right after Snow took her first FMLA leave. Therefore, a genuine issue of material fact has been raised.
HealthSouth denies that any of its acts were motivated by retaliation. According to HealthSouth, they entailed ordinary business decisions which were part of its plan to revitalize a marketing department that it believed was operating poorly. See e.g. Testerman v. EDS Tech. Prod. Corp., 98 F.3d 297, 305 (7th Cir. 1996) (The issue is the employer's motive, not its wisdom.). See also Johnston v. Olin Corp., No. IP98-1456-C-B/S, 2000 WL 1468480, *16 (S.D.Ind., Sept. 29, 2000) (Contesting the factual basis for employer's decision without contesting employer's honesty is not enough.). HealthSouth contends that there is no evidence that its motives were not genuine.
However, the Court believes that Snow has presented enough evidence regarding the unreasonable nature of the whole sequence of acts as to raise a genuine issue concerning HealthSouth's true motivation. The action plan, which effectively became a quota after the negative second evaluation, required Snow to increase the monthly ADC's at the Hospital from about 70% of capacity to 100% in less than three months. This had to be accomplished under circumstances (the closing of the subacute unit and the effect of the Balanced Budget Act) that all parties agree favored declining rather than increasing patient counts. A rational trier of fact could infer, therefore, that HealthSouth deliberately set goals which it knew Snow could not achieve, as part of a planned program of retaliation.
HealthSouth's reliance on Hughes for the proposition that Snow cannot draw a prima facie inference of retaliation after three months is misplaced. In Hughes, the first retaliatory act did not occur until four months after the statutorily protected activity. But, if Snow's allegations are true, the plan to retaliate against her was implemented the day she received her action plan, a mere eight days after she returned to work. Similarly, HealthSouth's reliance on Hite v. Viomet Inc., 38 F. Supp.2d 720, 743 (N.D.Ill. 1999) (two months is too long to draw a logical inference) is misplaced. Hite violated a clear and longstanding company policy, not a policy that might have been instituted just to trip her up. Nor was there a pattern of allegedly retaliatory acts leading up to the company's ultimate decision to fire her. The case is simply not analogous. The Hunt-Golliday case cited by Snow is much closer to the mark. It establishes that a continuing chain of retaliatory acts, if provocative enough, can suffice to draw an inference that the ultimate discharge is also retaliatory.
HealthSouth insists in its brief that, in order for Snow to establish the causal element of her prima facie case, Snow is obligated to refute its contention that she was not performing her job adequately. But satisfactory job performance is not even an element of the plaintiff's prima facie case in a retaliation claim. Nor does Snow have the burden of anticipating HealthSouth's non-retaliatory explanations and refuting them one by one. Establishing a prima facie case under McDonnell Douglass is not such an onerous task. Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981) (The facts presented by the plaintiff in a prima facie case need only be such that, if unexplained, they would make it more likely than not that the defendant had an impermissible motive). Therefore, it is enough that Snow has raised a genuine issue of material fact as to whether the pattern of actions noted above were triggered by her taking FMLA leave and designed by HealthSouth to lead inexorably to her ultimate discharge.
Still, HealthSouth's argument that it discharged Snow because she was incompetent remains at the center of the dispute. It explains HealthSouth's motives in giving Snow an action plan and ultimately firing her for failing to meet the plan's objectives. As such, it represents the second stage in the McDonnell Douglass framework, providing a legitimate, non-retaliatory reason for HealthSouth's actions, and destroying all presumptions and burdens raised in the first stage. Reeves v. Sanderson Plumbing Products, Inc., 120 S.Ct. 2097, 2106.
That moves the argument to the third (pretext) stage of the McDonnell Douglass framework. The sole remaining issue is retaliation. Id. Snow must prove by a preponderance of the evidence that HealthSouth did not truly believe that she was performing her job inadequately, and that the real reason that she was fired was in retaliation for exercising her FMLA rights. In effect, there are two aspects to a successful showing. First, she must prove by a preponderance of the evidence that the reasons proffered by HealthSouth for discharging her were not genuine, with the accompanying inference that some other unstated motive must explain the action. Then, she must prove by a preponderance of the evidence that it is more likely than not, based upon the facts in the record, that HealthSouth's unstated motive was to retaliate against her for taking her legitimate FMLA leave. Id. at 2108-9. Although the plaintiff's burden of persuasion at trial always requires a proof of both elements, pretext and the true motive, the Supreme Court has noted that the burden of production may only require that the plaintiff present evidence of pretext. Id. This is because, in many cases, the mere finding of pretext can suffice to imply the forbidden motive. Id.
Again, the relevant question is not whether Walker misjudged in her assessment of Snow's performance, but whether Walker, acting for HealthSouth, truly believed that Snow was performing poorly. However, Snow does not even attempt to impeach Walker, or other decision makers, as to their true beliefs. Rather, Snow tries to prove indirectly that the proffered reasons are not credible. A proof that the employer's reasons are not credible can include any combination of: (1) evidence that the reasons are without basis in fact; (2) evidence that the reasons did not actually motivate the challenged action; and (3) evidence that the reasons were insufficient to motivate the challenged action. Freeman v. Madison Metropolitan School District, 231 F.3d 374, 379 (7th Cir. 2000)
Snow presents evidence of two kinds. First, she attempts to show that she was performing her job satisfactorily, suggesting that HealthSouth's claims to the contrary are not well founded in fact. Second, she attempts to show that HealthSouth created standards of performance for her that they could not possibly have expected anyone to achieve. This also casts doubt on the credibility of HealthSouth's claims about her particular job performance because the primary basis for HealthSouth's judgment about the quality of her work seems to have been her failure to fill patient beds to a high enough level. As noted above, Snow expends most of her effort on an attempt to prove that she was, in fact, performing her job adequately. HealthSouth contests this point just as vigorously. Viewing the facts in the light most favorable to Snow, the Court assumes that she was performing her job in a satisfactory fashion. But that does not tend to prove, even indirectly, that HealthSouth did not perceive her as performing her job poorly. In order to prove, by this kind of evidence, that HealthSouth's claim that it perceived her to be performing poorly was not credible, she would have to prove that she was performing her job so well that a reasonable employer could not help but have recognized it. The totality of the evidence on record, even when viewed in the best light for Snow, does not show that she was performing her job that well. In particular, Snow's overall grade of two out of four on the first evaluation by Hospital administrator Bailey, which Snow herself uses as evidence of her adequate performance, is hardly overwhelming. By itself, it does not tend to show that HealthSouth's proffered explanation is dishonest, rather than just inaccurate.
However, Snow's argument about the standard by which she was judged is more persuasive. The bottom line for HealthSouth, in measuring Snow's performance, seems to have been that the census counts under her leadership were too low. "[Snow]'s own admissions regarding her failure to meet census goals, standing alone, warrant summary judgment." HealthSouth Reply Brief at 6. Yet Snow provides clear statistical evidence that the Hospital never achieved ADC figures even close to the levels that were required by her action plan, neither before the plan was given to her, nor after she was discharged. There may be many explanations for this. But in terms of the credibility of HealthSouth's proffered explanation that Snow was not performing her job adequately, the key question is whether the goals set forth in the action plan were objectively reasonable. Snow presents significant evidence tending to show that they were not. HealthSouth fails to provide any uncontested evidence that they were. For example, HealthSouth does not say whether it enforced comparably strict quotas to for its marketing coordinators at other hospitals. Nor does it point to any other hospital where it used a similar management approach to change the hospital's fortunes.
All of HealthSouth's answers focus on issues, such as business judgment and changed circumstances, that are peripheral to the main question here. While the Court will not question the wisdom of HealthSouth's management policies, the Court must consider the credibility of its claim that they are legitimately held policies when that credibility has been cast into doubt.
HealthSouth cites the case of Robin v. Expo Eng'g Corp. as being strikingly similar. 200 F.3d 1081 (7th Cir. 2000) (analyzed in HealthSouth Reply Brief at 1-2). Robin was a senior account executive who was fired after he failed to meet the $1.5 million sales quota set for him by his company. Id. at 1087. Like Snow, he claimed that his employer did not seriously expect him to meet the quota and that his employer had used the unreasonable quota as a pretext in order to fire him. Also like Snow, Robin failed to achieve his quotas in part because he was undergoing treatment for colon cancer (which the employer knew) and in part because he had a more difficult market in which to sell than other senior account
According to HealthSouth, Robin stands for the proposition that when an employer sets goals or quotas for an employee, the trier of fact cannot find those goals to be so unrealistic as to question their genuineness. The holding of the case was not that broad, however. Robin never made the claim that the sales goals set by his employer were unrealistic in an objective sense. He could not have, because all of the other senior account executives were achieving sales goals of $2 million and more. Id. at 1091. Indeed, before his cancer problems, Robin had achieved as high as $1.4 million in annual sales. It would not have been a big step to reach $1.5 million, especially in a market that was characterized as rapidly growing. Id. Robin's complaint was that the quotas were unreasonable to him, given his personal circumstances. The Court simply refused to impose a moral stricture on employers requiring them to take into account their employees' personal difficulties when setting business objectives. Id. at 1092. By contrast, Snow does not raise any issue about her personal difficulties, aside from her FMLA leave which is legally (not merely morally) protected. What she argues is that no marketing coordinator could have achieved the quotas given to her in her action plan. She has presented concrete evidence, both statistical and anecdotal, to support her argument. Therefore, the Court believes that a genuine issue of October. Even Hospital administrator Bailey admitted that these numbers were unattainable.
The ADC's for 1996, 1997, 1998, and 1999 were, respectively 33.2, 42.7, 35.2, and 35.7. Yet the action plan called for Snow to achieve unprecedented ADC's of 52 in September and 56 in executives. Id. at 1091. Still, when Robin returned to work while taking weekly chemotherapy, he told his employer that he was "presently fully able to continue [his] duties." Id. at 1086. Although Robin insisted, and the Court did not doubt, that his employer knew he could not achieve the sales goals, the Court rejected as a matter of law the inference that the goals were a mere pretext for an illegal plan to fire him.
material fact exists as to whether the targets set forth in the action plan given to Snow were objectively reasonable. The Court further believes that if the goals in the action plan were not objectively reasonable, as must now be assumed for the purpose of this summary judgment ruling, then the credibility of HealthSouth's proffered reason for discharging Snow is in doubt. For, if HealthSouth's articulated reasons are to be believed, the action plan was not designed to cause Snow to fail, but rather to light a fire under her. If she had achieved her goals, or even made substantial progress toward achieving those goals, the implication is that HealthSouth would not have discharged her. By presenting evidence that these goals were not objectively reasonable, however, Snow has effectively cast doubt on whether HealthSouth honestly could have believed that even the most effective marketing director (as distinct from Snow) would achieve them. Therefore, a rational trier of fact could find that HealthSouth knew Snow would fail and that its proffered reasons about her poor performance were most likely pretext.
Even so, the burden still remains with Snow to persuade the finder of fact that the real reason for Snow's dismissal was retaliation for her use of FMLA leave. The Reeves ruling establishes that the mere finding of pretext can be, but is not necessarily, enough to permit the trier of fact to infer the true motive. The Court explains its reasoning in terms of logical inferences. "[O]nce the employer's justification has been eliminated, discrimination may well be the most likely alternative explanation, especially since the employer is in the best position to put forth the actual reason for its decision." 120 S.Ct. at 2108-9. This does not say that, in every case, discrimination (or retaliation) need be the most likely explanation. The record might support alternative inferences or explanations that were not articulated. For example, the real reason might have been that the employee was having an affair with the boss's wife, which the boss did not want to discuss in court. "Whether judgment as a matter of law is appropriate in any particular case will depend on a number of factors," including "the strength of the plaintiff's prima facie case [and] the probative value of the proof that the employer's explanation is false." Reeves, 120 S.Ct. at 2109. The Seventh Circuit has indicated that a plaintiff who can "show that defendant's proffered reason is pretext `need not also come forward with further evidence of intentional discrimination to survive summary judgment.'" Jackson v. E. J. Brach Corporation, 176 F.3d 971, 984 (7th Cir. 1999) (citing Hoffman v. MCA, Inc., 144 F.3d 1117, 1123 (7th Cir. 1998) (quoting Fuka v. Thomson Consumer Elec., 82 F.3d 1397, 1404 (7th Cir. 1996))). This may no longer be true in every imaginable case after Reeves. However, the Court will not have to face such a thorny question in this case. Although there is some additional evidence that does tend to cast doubt on the inference that the true purpose behind the unreasonably high quotas in August, September, and October was HealthSouth's intention to retaliate against Snow for her taking FMLA leave, this evidence is not determinative. Moreover, like the plaintiff in Reeves, Snow has presented further evidence which, while not persuasive by itself, tends to support her retaliation theory. First, Snow points out that Walker was irritated with her for having been absent and for having failed to keep up with the marketing needs of the Hospital during the time that Snow was legitimately on medical leave. Snow Dep. at 277-80, 292-3; Simpson Dep. at 48. Second, she notes HealthSouth's refusal to let her return to work on June 1 when she claims that she was ready to return after the second operation. Third, she points to the fact that HealthSouth investigated whether it could discharge her under the key employee exception to the FMLA.
Some time in early 1998, hospital administrator Bailey and comptroller Stewart budgeted an average daily census count for the year. HealthSouth argues that the extremely high numbers targeted in the action plan that Walker imposed on Snow in July merely represented some kind of (unexplained) mechanical adjustment of the original budget necessary to compensate for the low numbers achieved during the first half. But it strains credibility to think that Walker, as HealthSouth's supervisor, did not understand the significance of this adjustment and could not evaluate for herself the likelihood of its being achieved.
The bottom line is that Snow has proposed a theory in which HealthSouth planned to get rid of her in retaliation for her taking FMLA leave. Her argument depends fundamentally on a perception that the action plan was objectively unreasonable. The action plan required her to maintain an average daily patient count of 52 for the month of September and 56 for the month of October. The October quota, in particular, represented 100% capacity for the Hospital. These numbers were unattainable, as even Hospital administrator Bailey admitted. Furthermore, Snow was expected to achieve this 100% capacity in the face of the Hospital having just closed its subacute unit containing eighteen beds. Therefore, HealthSouth's claim that it was Snow's attitude that was unreasonable, rather than its quotas is not supported by the facts.
Of course, HealthSouth has every right to set high targets for ADC counts and to fire Snow for not achieving them. But by setting the bar so high that Snow was ultimately required to maintain 100% capacity on a daily basis, HealthSouth has raised the suspicion that its motive was punitive, rather than to improve the performance of the marketing department. If so, then the timing further suggests that Snow was being disciplined because her FMLA leave had disrupted the marketing program of the Hospital. The FMLA forbids such retaliation.
It is not up to the Court to weigh the relative credibility of the two parties. A genuine issue of material fact as to HealthSouth's true motive has been raised. It follows that the Court must deny HealthSouth's motion for summary judgment on Snow's FMLA claim.
C. THE ADA CLAIM
To establish a prima facie case of discrimination, Snow must first show that she was disabled within the meaning of the ADA at the time when she was discharged by HealthSouth. See 42 U.S.C. § 12102(2). Snow does not claim that she had an actual disability. What she claims is that HealthSouth regarded her as having one. To establish this fact, according to the standards of the ADA, she must show that HealthSouth perceived her as: (1) having an impairment (2) that substantially limited her (3) in a major life activity. 29 C.F.R. § 1630.2(I); Sutton, 527 U.S. at 471.
However, all that Snow claims in her brief is that she had an impairment (the severely broken leg) and that HealthSouth fired her because of its misperception that the impairment prevented her from performing her job effectively. Snow's argument misses the mark for two reasons. First, in order to be substantially limiting an injury or illness must have a continuing or lingering effect. Even if Snow could show that HealthSouth discharged her because of her injury, there would be no violation of the ADA unless Snow could also show that HealthSouth perceived her as being substantially limited on an ongoing basis. Moore v. J. B. Hunt Transport, Inc., 221 F.3d 944, 954 (7th Cir. 2000), A broken leg, even a severely broken leg, is not the type of injury typically considered a disability because it is neither chronic, nor permanently disabling. Second, the notion of interfering with a major life activity encompasses much more than merely interfering with the particular duties of one's own job. Therefore, the fact that HealthSouth perceived her as being temporarily unable to spend 75% of her day out in the field marketing, without more, does not raise Snow's injury to the level of a disability under the law. Id. at 950. In her brief Snow identifies the major life activity in question as "working," Snow Response Brief at 26. To qualify as substantial, "a limitation on the ability to work must be one that affects the plaintiff's ability to perform a class or range of jobs." Skorup v. Modern Door Corporation, 153 F.3d 512, 515 (7th Cir. 1998) (citing Davidson v. Midelfort Clinic, Ltd., 133 F.3d 499, 511 (7th Cir. 1998). Therefore, to prove her assertion, Snow must show not only that HealthSouth perceived her to be impaired in her ability to perform her own job, but also that HealthSouth perceived her to be impaired in her ability to perform a whole class or range of jobs for which she might otherwise have been suited were it not for the injury. Id.
To prove that HealthSouth perceived her as being unable to perform the duties of her own job, Snow cites: (1) the investigation in early 1998 about whether HealthSouth could legally terminate Snow during her FMLA leave, and (2) HealthSouth's insistence that Snow stay home for an extra five weeks in June and July 1998 even though she was prepared to return to work. But, neither of these facts are probative as to whether HealthSouth continued to perceive Snow as a person unable to perform her basic job functions when she finally did return to work in July. At that point, presumably, HealthSouth thought she had recovered sufficiently as to perform the essential functions of her job. And, the progression from crutches to a walker to a cane, which Snow characterizes as evidence that HealthSouth must have perceived her as continuing to be impaired, actually tends to show that she was making satisfactory progress towards full recovery.
Because Snow's theory is that HealthSouth discharged her on account of its perception that she was disabled, the most relevant time to assess HealthSouth's perception of her ability to work is in October when HealthSouth fired her, not in March, nor even in July. Bay v. Cassens Transport Company, 212 F.3d 969, 974 (7th Cir. 2000) ("[w]hether or not an individual meets the definition of a qualified individual with a disability is to be determined as of the time the employment decision was made.") But Snow has presented no evidence that HealthSouth continued to think, in October, that she was substantially limited in performing her essential duties.
Moreover, even if HealthSouth did perceive Snow as being limited in her ability to perform the specific duties of her job in October when it fired her, that would not establish that HealthSouth perceived her as being substantially limited in the entire life activity of working. As noted above, to prove that HealthSouth perceived her to be generally unable to work because of her injury, Snow would have to come forward with more evidence than just the fact, even if true, that HealthSouth thought she could not perform the special aspects of her job that required her to spend 75% of her time out in the field making marketing calls. Yet, Snow did not even identify a class of jobs, such as administrative jobs, in which she might have been substantially limited, or in which HealthSouth might have perceived her as being substantially limited. It follows that Snow has failed to make the kind of prima facie case for discrimination that is required under the ADA. Therefore, the Court grants summary judgment to HealthSouth on her ADA claim.
D. MITIGATION OF DAMAGES
HealthSouth's final argument is that, even if Snow can show that she was the victim of retaliation under the FMLA, she is not entitled to any damages. The only types of damages available to a successful FMLA plaintiff are backpay, liquidated damages, and equitable relief (where appropriate). 29 U.S.C. § 2617 (a)(1). See also Divizio v. Elmwood Care, Inc., No. 97-C-8365, 1998 WL 292982 at *4 (N.D. Ill. 1998) (no compensatory or punitives). That leaves backpay as the determinative component of damages. Backpay is designed to compensate the plaintiff for the amount of wages that she lost as a direct result of the retaliatory discharge. But HealthSouth maintains that Snow suffered no such loss because, instead of seeking similar employment after she was fired, she simply made a personal choice to start an alternative career in real estate.
It is true that Snow had a legal duty to attempt to mitigate her damages by seeking comparable work. Smith v. Great Am. Restaurants, Inc., 969 F.2d 430, 438 (7th Cir. 1992). However, failure to mitigate is an affirmative defense. Hutchison v. Amateur Elec. Supp., Inc., 42 F.3d 1037, 1044 (7th Cir. 1994). Therefore, HealthSouth must show that Snow did not take advantage of substantially equivalent opportunities that were available to her after she was discharged. Id.
HealthSouth argues that developing a real estate career cannot be deemed a diligent effort to mitigate damages because selling real estate is not comparable to hospital administration. However, HealthSouth's burden is broader than merely asserting that Snow's efforts to find truly comparable work were not diligent enough. See e.g. Cline v. Broadway Express, 689 F.2d 481, 488-9 (4th Cir. 1982) (Going into real estate sales because of unavailability of comparable jobs does mitigate damages, absent showing that decision to enter real estate was not bona fide.). HealthSouth must show that by "using reasonable diligence, [Snow would] have found comparable employment" in the health care administration field. Ward v. Tipton County Sheriff Department, 937 F. Supp. 791, 797 (S.D. Indiana 1996). To that end, HealthSouth must show that: (1) Snow failed to make reasonable efforts to obtain equivalent employment and (2) if she had made reasonable efforts, she would most likely have succeeded in finding equivalent employment. Hutchison, 42 F.3d at 1044.
HealthSouth seems to be arguing that it does not have to meet the second part of its burden because, in its view, Snow's efforts to find comparable employment were not only lacking in diligence, but non-existent. In effect, HealthSouth is asking the Court to place the burden on Snow to show that she at least took some concrete steps toward finding comparable employment. HealthSouth cites a number of cases, but none of them support this proposition. Indeed, all of the cases cited involve findings of facts, not law. They merely suggest the need to consider the specific circumstances of the case before determining whether plaintiff's efforts were diligent enough.
For example, Sellers v. Delgado College does not teach that "a plaintiff's right to recover backpay is [automatically] cut off [as a matter of law] if she fails to actively seek substantially equivalent employment." 902 F.2d 1189, 1194 (5th Cir. 1990) cert. denied 498 U.S. 987 (1990). The Fifth Circuit merely stated that it did not consider the finding by the trier of fact to be clearly erroneous that Sellers had failed to mitigate damages. Id. at 1196. Nowhere does the Sellers Court even suggest that the finding that Sellers failed to mitigate damages was compelled upon the trier of fact simply by Sellers's inactivity in the relevant job market. To the contrary, the Court relied on a particular finding of fact that there were a large number of advertisements for substantially equivalent jobs to which Sellers failed to respond. Id. at 1192. Similarly, Williams v. Imperial Eastman Acquisition Corp. does not teach that starting an alternative career in lieu of continuing to seek comparable employment necessarily constitutes a failure to mitigate damages. 994 F. Supp. 926 (N.D.Ill. 1998). The trial court did find that Williams' decision to give up on the search and return to his hometown to run the family cattle farm entailed a personal choice to start an alternative career, rather than a serious attempt to mitigate damages. Williams, 994 F. Supp. at 931-2. But again, the trial court's finding was clearly predicated on its finding that comparable jobs were available. It cited a survey of classified ads that showed 118 such positions. Id. at 931. Only in the context of such an abundance of available jobs did the Court find, as HealthSouth asserts in its brief, that "the plaintiff was obligated to remain active in the labor force, seeking a substantially equivalent position to the one he held with the defendant." HealthSouth Reply Brief at 33. Indeed, the Williams Court explicitly acknowledged that the facts could have been different: "Williams could have decided to work permanently on the cattle farm if, after a diligent search, he could not find comparable work." Id. In other words, Snow's obligation of reasonableness within her duty to mitigate requires: (1) the seeking of comparable work, but (2) if none is available, then (3) the seeking of reasonable alternative work. But that is exactly what Snow says she did. She claims that, because of her inside knowledge of the health care community in Kokomo, she knew that no comparable jobs were available to her. It is true that she merely asserts this claim. However, that is enough, because it is not her burden to present evidence to prove that she was sufficiently diligent. Rather, it is HealthSouth's burden to bring forth evidence to disprove it. The only evidence that HealthSouth proffers is its own assertion that Snow did not "apply for a job [in the health care market, and that] she [did not] inquire into possible job openings at any of the numerous healthcare facilities in the surrounding area." HealthSouth Brief at 33. Even if true, this is an inadequate showing. The law does not require that a plaintiff circulate resumes or make formal inquiries when it is clear that such an attempt would be futile. The burden remains with HealthSouth to show that the attempt, most likely, would not have been futile. Thus, to refute Snow's explanation, HealthSouth would have to show that there were jobs available which Snow ignored. This, HealthSouth has failed to do.
It follows that there is a genuine issue of material fact as to whether Snow demonstrated reasonable diligence in her effort to mitigate damages. As such, the Court will not grant HealthSouth's motion for summary judgment on this point.
IV. CONCLUSION
Having considered fully the parties' arguments, and for the reasons discussed above, the Court concludes that Snow has failed to establish a plausible claim that any employee was similarly situated but treated more favorably than her, simply because of age. The Court also concludes that Snow has failed to demonstrate that HealthSouth perceived her as being disabled within the meaning of the ADA. On the other hand, Snow has presented enough evidence that a reasonable trier of fact could find that HealthSouth deliberately set punitive quotas for Snow which it knew that neither she nor any marketing coordinator could achieve. These quotas were given to Snow almost immediately upon her return from FMLA leave. Thus, a genuine issue of fact has been raised as to whether HealthSouth's motive was to retaliate against Snow because her FMLA leave had disrupted the Hospital's marketing department. Finally, the Court rejects HealthSouth's argument that Snow was not entitled to relief, even so, because she did not mitigate her damages. HealthSouth failed to show that if Snow had been more diligent in her attempt to mitigate damages, she would most likely have succeeded. Therefore:
(1) The Court GRANTS HealthSouth's motion for summary judgment with respect to Snow's ADEA complaint.
(2) The Court GRANTS HealthSouth's motion for summary judgment with respect to Snow's ADA complaint.
(3) The Court DENIES HealthSouth's motion for summary judgment with respect to Snow's FMLA complaint.
(4) The Court DENIES HealthSouth's motion for summary judgment based upon Snow's failure to mitigate damages.