Willard v. AHS Oklahoma Physician Group, LLC

RESPONSE in Opposition to Motion for Renewed Rule 50 Motion for Judgment as a Matter or in the Alternative, Rule 59 Motion for New Trial or Remittitur

N.D. Okla.June 6, 2018

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OKLAHOMA SUSAN C. WILLARD, D.O., ) ) Plaintiff, ) ) -vs- ) Case No. 16-CV-00677-GKF-JFJ ) AHS OKLAHOMA PHYSICIANS ) GROUP, L.L.C. d/b/a UTICA PARK ) CLINIC, ) ) Defendant. ) PLAINTIFF’S BRIEF IN OPPOSITION TO DEFENDANT’S RENEWED RULE 50 MOTION FOR JUDGEMENT AS A MATTER OF LAW, OR IN THE ALTERNATIVE, RULE 59 MOTION FOR NEW TRIAL OR REMITTITUR. Michael L. Barkett, OBA #16171 Cassie M. Barkett, OBA #18658 The Barkett Law Firm, PLLC 2021 South Lewis Avenue, Suite 630 Tulsa, Oklahoma 74104 918.582.6900 – Telephone 918.582.6907 – Facsimile mbarkett@barkettlaw.net cbarkett@barkettlaw.net Case 4:16-cv-00677-GKF-JFJ Document 140 Filed in USDC ND/OK on 06/06/18 Page 1 of 34 I TABLE OF CONTENTS AND AUTHORITIES I. DEFENDANT’S RENEWED RULE 50 MOTION SHOULD BE DENIED. ....................................1 HINDS V. GENERAL MOTORS CORP., 988 F.2D 1039, 1045 (10TH CIR. 1993) ................... 1, 2 J.I. CASE CREDIT CORP. V. CRITES, 851 F.2D 309, 311 (10TH CIR. 1988) ..............................2 JACKSON V. CITY OF ALBUQUERQUE, 890 F.2D 225, 230 (10TH CIR. 1989) ............................2 KOCH V. CITY OF HUTCHINSON, 814 F.2D 1489 (10TH CIR. 1987), CERT. DENIED, 488 U.S. 909, 102 L. ED. 2D 250, 109 S. CT. 262 (1988) ......................................................2 LUCAS V. DOVER CORP., 857 F.2D 1397, 1400 (10TH CIR. 1988) ..........................................2 OKLAND OIL CO. V. KNIGHT, 92 F. APP'X 589, 598 (10TH CIR. 2003) ....................................1 UNITED STATES V. FENIX & SCISSON, INC., 360 F.2D 260, 262 (10TH CIR. 1966) ...................2 WHALEN V. UNIT RIG, INC., 974 F.2D 1248, 1251 (10TH CIR. 1992) ......................................3 F.R.C.P. 50 NOTES OF THE ADVISORY COMMITTEE ON 2006 AMENDMENTS ........................1 A. THE EVIDENCE SUPPORTED THE VERDICT FOR AGE DISCRIMINATION AND RETALIATION. .........................................................................................................3 CONE V. LONGMONT UNITED HOSP. ASS'N, 14 F.3D 526, 531 (10TH CIR. 1994) .........6 DUVAL V. CALLAWAY GOLF BALL OPERATIONS, INC., 501 F. SUPP. 2D 254, 265 (D. MASS. 2007) .............................................................................................................6 GROSS V. FBL FIN. SERVS., INC., 557 U.S. 167, (2009) ..............................................6 PASCAL V. STORAGE TECHNOLOGY CORP., 152 F. SUPP. 2D 191 (D. CONN. 2001) ......6 RACHID V. JACK IN THE BOX, INC., 376 F.3D 305, (5TH CIR. 2004) ............................6 RUSSELL V. MCKINNEY HOSP. VENTURE, 235 F.3D 219, 226 (5TH CIR. 2000) ............5 TOMASSI V. INSIGNIA FIN. GRP., INC., 478 F.3D 111, 116 (2ND CIR. 2007) .............. 5, 6 B. PLAINTIFF’S PROOF OF PRETEXT WAS OVERWHELMING AND SUPPORTS THE VERDICT. ...............................................................................................................11 JONES V. OKLA. CITY PUB. SCH, 617 F.3D 1273, 1280 (10TH CIR. 2010) ..... 11, 12, 13 Case 4:16-cv-00677-GKF-JFJ Document 140 Filed in USDC ND/OK on 06/06/18 Page 2 of 34 II REEVES V. SANDERSON PLUMBING PRODS., 530 U.S. 133, 147-48, 120 S. CT. 2097, 2108-09 (2000) ........................................................................................... 11, 12, 13 C. SALARY ASSOCIATED WITH AGE, EXPERIENCE, AND SKILL IS AN IMPERMISSIBLE EXCUSE FOR AGE DISCRIMINATION. ....................................................................13 ANDERSON V. BAXTER HEALTHCARE CORP., 13 F.3D 1120 (7TH CIR. 1994) ......... 18, 19 APSLEY V. BOEING CO., 722 F. SUPP.2D 1218 (D. KS. 2010) ...................................18 BROADDUS V. FLORIDA POWER CORP., 145 F.3D 1283 .............................................18 CITY OF LOS ANGELES DEP'T OF WATER & POWER V. MANHART, 435 U.S. 702, 709, 98 S. CT. 1370, 55 L. ED. 2D 657 (1978) ............................15 COATES V. NATIONAL CASH REGISTER CO., 433 F. SUPP. 655, 661 (W.D. VA. 1977) ...........................................................16 CONNECTICUT V. TEAL, 457 U.S. 440, 453-54, 102 S. CT. 2525, 73 L. ED. 2D 130 (1982) .....................15 DACE V. ACF INDUS., INC., 722 F.2D 374 (8TH CIR. 1983) ......................................15 DECKER V. COASTAL DERBY REF. CO., NO. 90-1070-PFK, 1993 U.S. DIST. LEXIS 2907, AT *17 (D. KAN. 1993) .................................................................................14 DENIO V. ASPLUNDH TREE EXPERT CO., 92 F.3D 1177 (4TH CIR.1996) .....................18 EEOC V. CHRYSLER CORP., 733 F.2D 1183 (6TH CIR. 1984) ...................................15 GELLER V. MARKHAM, 635 F.2D 1027 (2D CIR. 1980) ........................................ 15, 16 HAMILTON V. GROCERS SUPPLY CO., 986 F.2D 97 (5TH CIR. 1993) ...........................18 HAZEN PAPER CO. V. BIGGINS, 507 U.S. 604, 113 S.CT. 1701, 123 L.ED 2D 338 .....17 LACHAPPELLE V. OWENS-ILLINOIS, INC., 513 F.2D 286, 14 FEP CASES 737, 739-40 (N.D. GA. 1970) .............................16 LAUGESON V. ANACONDA CO., 510 F.2D 307, 316-317 (6TH CIR. 1975) ..................16 LEFTWICH V. HARRIS-STOWE STATE COLLEGE, 702 F.2D 686, 691 (8TH CIR. 1983) ............................................................. 14, 15 Case 4:16-cv-00677-GKF-JFJ Document 140 Filed in USDC ND/OK on 06/06/18 Page 3 of 34 III MARSHALL V. ARLENE KNITWEAR, 454 F. SUPP. 715, 728 (E.D. N.Y. 1978) .............16 METZ V. TRANSIT MIX, INC., 828 F.2D 1202, 1207 (7TH CIR. 1987) ................... 13, 15 NEMETH V. CLARK EQUIP. CO., 677 F. SUPP. 899, 910 N.12 (W.D. MICH. 1987) .....14 REEDER V. WASATCH COUNTY SCH. DIST., 359 FED. APPX. 920 (10TH CIR. 2009) .....17 WHITTEN V. FARMLAND INDUS., 759 F. SUPP. 1522 (D. KAN. 1991).........................13 1 H. EGLIT, AGE DISCRIMINATION § 16.32 (1985)....................................................15 29 C.F.R. § 860.103(H) (1979) ...............................................................................14 29 C.F.R. § 1625.7(F) (1986) ..................................................................................14 D. DR. WILLARD HAD A REASONABLE BELIEF THAT SHE WAS THE TARGET OF AGE DISCRIMINATION – SUPPORTING THE VERDICT FOR RETALIATION ...................19 ARCHULETA V. COLO. DEP'T OF INST., DIV. OF YOUTH SERVS., 936 F.2D 483, 487 (10TH CIR. 1991) .................................................................19 BD. OF CNTY. COMM'RS, FREMONT CNTY., COLO., V. E.E.O.C., 405 F.3D 840, 852 (10TH CIR. 2005) .................................................................20 CRUMPACKER V. KAN. DEP'T OF HUMAN RES., 338 F.3D 1163, 1172 (10TH CIR. 2003).............................................................21 GALDIERI-AMBROSINI V. NAT'L REALTY & DEV. CORP., 136 F.3D 276, 292 (2ND CIR. 1998) ....................................................................20 HERTZ V. LUZENAC AM., INC., 370 F.3D 1014, 1015-16 (10TH CIR. 2004) ...............19 HINDS V. SPRINT/UNITED MGMT. CO., 523 F.3D 1187, 1203 (10TH CIR. 2008) ........19 REED V. A.W. LAWRENCE & CO., 95 F.3D AT 1170, 1178 (2ND CIR.1996) ................20 RODRIGUEZ V. WET INK, LLC, 08-CV-00857-MSK-CBS, 2014 U.S. DIST. LEXIS 10228, AT *9, 2014 WL 287339(D. COLO. JAN. 27, 2014) ............................... 20, 21 ROMERO V. UNION PACIFIC RAILROAD, 615 F.2D 1303, 1307 (10TH CIR. 1980) ......19 THORNTON V. MORGAN STANLEY SMITH BARNEY, LTD. LIAB. CO., NO. 12-CV-298-TCK-FHM, 2014 U.S. DIST. LEXIS 183756, AT *49 (N.D. OKLA. NOV. 26, 2014) ..................20 Case 4:16-cv-00677-GKF-JFJ Document 140 Filed in USDC ND/OK on 06/06/18 Page 4 of 34 IV II. DEFENDANT’S RULE 59 MOTION FOR NEW TRIAL SHOULD BE DENIED. ........................23 MCDONOUGH POWER EQUIP. V. GREENWOOD, 464 U.S. 548, 553, 104 S. CT. 845, 848-49 (1984) .................................................24 RASMUSSEN DRILLING, INC. V. KERR-MCGEE NUCLEAR CORPORATION, 571 F.2D 1144, 1148 (10TH CIR. 1978) ............................................................ 23, 24 ROGERS V. EXXON RESEARCH & ENG'G CO., 404 F. SUPP. 324, 337 (D.N.J. 1975) ...............24 SANJUAN V. IBP, INC., 160 F.3D 1291, 1297 (10TH CIR. 1998) ............................................24 SHULTZ V. RICE, 809 F.2D 643, 655 (10TH CIR. 1986) .........................................................23 UNITED STATES V. KELLEY, 929 F.2D 582, 586 (10TH CIR. 1991) .........................................24 UNITED STATES V. YELLOW CAB COMPANY, 338 U.S. 338, 94 L. ED. 150, 70 S. CT. 177 (1949) ....................................................... 23, 24 WHITE V. CONOCO, INC., 710 F.2D 1442, 1448 (10TH CIR. 1983) ........................................24 FEDERAL RULE OF CIVIL PROCEDURE 61 ............................................................................24 A. THE COURT PROPERLY REFUSED TO INCLUDE DEFENDANT’S “BUSINESS JUDGMENT” LANGUAGE IN INSTRUCTION NO. 15. ...............................................24 RIGGS V. AIRTRAN AIRWAYS, INC., 497 F.3D 1108 (10TH CIR. 2007) .................... 24, 25 B. THE COURT PROPERLY INCLUDED “UNCONDITIONAL” IN INSTRUCTION NO. 20. ............................................................................................25 BRUNO V. W.B. SAUNDERS CO., 882 F.2D 760,770 (3RD CIR. 1989) ..........................25 FORD MOTOR CO. V. EEOC, 458 U.S. 219, 230-32, 102 S.CT. 3057 (1982) ...........25 JACKSON V. SHELL OIL CO., 702 F.2D 197, 202 (9TH CIR. 1983) .............................25 SMITH V. WORLD INS. CO., 38 F.3D 1456, 1464 (8TH CIR. 1994) .............................26 C. DEFENDANT’S REQUEST FOR REMITTITUR IS WITHOUT MERIT AND SHOULD BE DENIED. ..................................................................................................................26 FARBER V. MASSILLON BD. OF EDUC., 917 F.2D 1391, 1395 (6TH CIR. 1990) ............26 PALMER V. CITY OF MONTICELLO, 31 F.3D 1499, 1508 (10TH CIR. 1994) .................26 Case 4:16-cv-00677-GKF-JFJ Document 140 Filed in USDC ND/OK on 06/06/18 Page 5 of 34 V ROGERS V. EXXON RESEARCH & ENG’G CO., 404 F. SUPP. 324, 337-38 (D.N.J. 1975) ...........................................................26 SPECHT V. JENSEN, 832 F.2D 1516, 1528 (10TH CIR. 1987) ......................................26 III. CONCLUSION. ....................................................................................................................27 CERTIFICATE OF SERVICE ..................................................................................................28 Case 4:16-cv-00677-GKF-JFJ Document 140 Filed in USDC ND/OK on 06/06/18 Page 6 of 34 1 Plaintiff, Susan C. Willard, D.O., Plaintiff, Dr. Willard, submits the following Brief in Response to Defendant’s FRCP 50, Renewed Motion for Judgment as a Matter of Law, or in the alternative, FRCP 59, Motion for New Trial or Remittitur. I. DEFENDANT’S RENEWED RULE 50 MOTION SHOULD BE DENIED. Defendant’s Renewed Rule 50(b) Motion is limited to two related grounds: 1) that insufficient evidence was presented to support the jury’s finding in favor of Dr. Willard on her age discrimination claim because Defendant could not, as a matter of law, illegally terminate Dr. Willard to eliminate her salary; and 2) because Defendant could not, as a matter of law, illegally terminate Dr. Willard to eliminate her salary, insufficient evidence was presented to support the jury’s finding in favor of Dr. Willard on her retaliation claim because her reported belief of age discrimination could not be “reasonable” as a matter of law. As shown below, these arguments fail. Because the Rule 50(b) motion is only a renewal of the preverdict motion, it can be granted only on grounds advanced in the preverdict motion. F.R.C.P. 50 Notes of the Advisory Committee on 2006 Amendments. Issues not raised in an initial Rule 50(a) motion at trial may not be asserted in a subsequent post-trial motion for judgment as a matter of law under Rule 50(b). Okland Oil Co. v. Knight, 92 F. App'x 589, 598 (10th Cir. 2003); Hinds v. General Motors Corp., 988 F.2d 1039, 1045 (10th Cir. 1993). Moreover, issues not raised in a motion for directed verdict may not be raised in a subsequent motion for judgment notwithstanding the verdict or considered on appeal. Id. It is important to note that Defendant did not raise the argument of age discrimination versus any purported “cost cutting” of Dr. Willard’s salary in its Rule 50 Motion at trial. (Rule 50 Motion, Tr. Ex. 1, at p.629, ll.14 – p. 632, ll.14, p.773, ll.3 – p. Case 4:16-cv-00677-GKF-JFJ Document 140 Filed in USDC ND/OK on 06/06/18 Page 7 of 34 2 774, ll.13). Accordingly, the Court should not entertain this argument raised for the first time in Defendant’s renewed Rule 50 motion. Regardless, Defendant cannot meet the renewed Rule 50 “insufficiency of evidence” standard. In reviewing the record under a renewed Rule 50 motion, the jury verdict must not be preempted unless it has no basis in fact. To be “insufficient evidence” to support a verdict, the evidence must all be one way from which only one reasonable inference can be drawn. United States v. Fenix & Scisson, Inc., 360 F.2d 260, 262 (10th Cir. 1966). In this regard, the evidence must be viewed in a light most favorable to the non-moving party and he must be given the benefit of all inferences fairly drawn therefrom. Id. A renewed Rule 50 motion "may be granted only when, without weighing the credibility of the evidence, there can be but one reasonable conclusion as to the proper judgment." Jackson v. City of Albuquerque, 890 F.2d 225, 230 (10th Cir. 1989). Judgment as a matter of law is appropriate "only if the proof is all one way or so overwhelmingly preponderant in favor of the movant as to permit no other rational conclusion." J.I. Case Credit Corp. v. Crites, 851 F.2d 309, 311 (10th Cir. 1988). “Judgment n.o.v. should be cautiously and sparingly granted." Lucas v. Dover Corp., 857 F.2d 1397, 1400 (10th Cir. 1988). "In determining whether the grant of a motion for judgment n.o.v. is appropriate, the court must indulge all inferences in favor of the party opposing the motion and cannot weigh the evidence, consider the credibility of witnesses or substitute its judgment for that of the jury." Id. A directed verdict is justified only where the proof is all one way or so overwhelmingly preponderant in favor of the movant so as to permit no other rational conclusion. Hinds v. Gen. Motors Corp., 988 F.2d 1039, 1045 (10th Cir. 1993); Koch v. City of Hutchinson, 814 F.2d 1489 (10th Cir. 1987), cert. denied, 488 U.S. 909, 102 L. Ed. 2d 250, 109 S. Ct. 262 (1988). Similarly, in reviewing the district court's ruling, the Tenth Circuit cannot assess credibility of witnesses or Case 4:16-cv-00677-GKF-JFJ Document 140 Filed in USDC ND/OK on 06/06/18 Page 8 of 34 3 substitute its judgment for that of the jury. Whalen v. Unit Rig, Inc., 974 F.2d 1248, 1251 (10th Cir. 1992). A. The Evidence Supported the Verdict for Age Discrimination and Retaliation. Defendant never asserted that it terminated Dr. Willard to “cut costs” related to her salary. Rather, Defendant consistently argued that Dr. Willard was terminated solely for her refusal to relocate office space. (See, e.g., Kalt, Tr. Ex.1, at p.176, ll.2-8). Counsel for Defendant even stated in his opening statement that the evidence would show “that the group had never been looking to terminate Dr. Willard; they wanted her to relocate clinic spaces.” (Clark, Tr. Ex. 1, p.28, ll.11-13). However, in the fall of 2014, UPC CEO Jim Kaltenbacher had a meeting with Dr. Willard wherein he told her directly: “Dr. Willard, most doctors your age retire.” (Willard, Tr. Ex. 1, at p.462, ll.21 – p.464, ll.7). At around the same time, Kaltenbacher, UPC Administrative Director Ryan Oss, UPC CFO Brandon Mudd, and Ardent Senior Vice President of Finance Shannon Fiser were secretly reviewing the terms of Dr. Willard’s contract, including the termination provisions, the remaining duration of the contract, and the guarantee. (Kalt. Tr. Ex.1, at p. 69, ll.5 – p.72, ll.2; Mudd, Tr. Ex.1, at p. 686, ll.4 – p. 689, ll.21; PX.3 (Ex.3); PX.4 (Ex.4); DX.41 (Ex.28); DX.45 (Ex.29). In accordance with the Ardent Code of Conduct, Dr. Willard reasonably suspected she was the subject of age discrimination and therefore reported Kaltenbacher’s ageist statement to Hillcrest CEO Kevin Gross, and UPC CFO Brandon Mudd. (Willard, Tr. Ex.1, at p. 465, ll.1- 14). Regina Patterson, the UPC Human Resources Director charged with investigating allegations of age discrimination, investigated and confirmed Dr. Willard’s age related complaint Case 4:16-cv-00677-GKF-JFJ Document 140 Filed in USDC ND/OK on 06/06/18 Page 9 of 34 4 about Kaltenbacher’s statement to Dr. Willard that “most physicians your age retire.” (Kalt.Tr.Ex.1, at p.83, ll.22 – p. 85, ll.11; Patterson, p. 370, ll.9 – 23, p.388, ll.7 – p. 389, ll.6). On May 6, 2015 a secret meeting was held between UPC Administrative Director Ryan Oss and Dr. Willard’s suite-mate, Dr. Sarah Andrews, where a UPC plan to get rid of older doctors and replace them with younger doctors to make more money was discussed. HR Director Regina Patterson investigated and confirmed that during that meeting statements were made regarding “why would [UPC] spend time on Willard and older doctors when we [UPC] have new [doctors] to make money?” (Patterson, Tr. Ex.1, at p. 370, ll.9 – p. 375, ll.7, p.383, ll.11 – p. 384, ll.25, p. 390, ll.7 – 21; PX.26 (Ex.16); PX.27 (Ex.17).1 Of course, this information reasonably made Dr. Willard feel like she was going to be terminated because of her age. (Willard, Tr. Ex. 1, at p.460, ll.18-21, p. 462, ll.12 – 18). Because of this, Dr. Willard confronted Ryan Oss with the statement attributed to him regarding getting rid of older doctors and replacing them with younger doctors. (Willard, Tr. Ex.1, at p. 465, ll.15 – p.466, ll.14). Mr. Oss did not deny the statement. Instead he sheepishly responded that “he was going to have to ask Dr. Andrews what she heard him say.” (Willard, Tr. Ex.1, at p.465, ll.25 – p. 466, ll.14; Patterson, Tr. Ex. 1, p.390, ll.7 – 20, p. 391, ll.3 – 9). 1 Defendant does not argue that any of the cited evidence referenced herein was improperly admitted, and for good reason: 1) Defense counsel did not object to the cited references at trial; 2) Defense counsel did not raise any error with regard to the admission of any of the cited references in Defendant’s Rule 50 Motion at trial or in its present motion (Clark, Tr. Ex.1, at p. 625, ll.10 – p. 632, ll.14); 3) Defense counsel agreed at trial that the cited references were properly admitted as part of UPC’s investigation into Dr. Willard’s age discrimination complaints pursuant to a proper exception to the hearsay rule (Clark, Tr. Ex. 1, at p. 460, ll.18 – p.461, ll.20; and 4) Defense counsel himself raised the anticipated evidence regarding the “out with the old, in with the young” statements in his opening statement trial. (See, Clark, Tr. Ex.1, at p.31, ll.12-16; p. 461, ll. 16-20). Case 4:16-cv-00677-GKF-JFJ Document 140 Filed in USDC ND/OK on 06/06/18 Page 10 of 34 5 Based on the mounting evidence that she was being targeted because of her age, and that her complaints were falling on deaf ears, Dr. Willard scheduled a meeting with Mr. Kaltenbacher on June 10, 2015 to again report age discrimination. At the meeting, UPC Medical Director Dr. Jeffrey Galles also showed up. Dr. Willard again reported to Dr. Galles and Mr. Kaltenbacher that she suspected her job was in danger because of her age. (Willard, Tr. Ex. 1, at p. 466, ll.13 – p. 467, ll.6). In response, Dr. Galles made a comment about Dr. Willard’s age by stating: “Susie, you are a “senior physician” and, you know, our numbers have dropped and your referrals have dropped like a rock.”2 (Willard, Tr. Ex.1, at p.467, ll.8–18). She was told her complaints would be investigated. (Id; Willard, Tr. Ex. 1, at p.479, ll.8-17; PX.84 (Ex.23). However, she was never presented with any of the results of the investigation. (Willard, Tr. Ex. 1, at p. 471, ll.11 – 25; PX.84 (Ex.23). At trial, Kaltenbacher admitted that Dr. Willard’s reported ageist statements were made in the May 6, 2015 meeting between Ryan Oss and Dr. Sarah Andrews and HR Director Regina Patterson investigated the matter and also confirmed that “getting rid of the older doctors and getting – putting in the new doctors” was discussed in the meeting. (Kalt, Tr. Ex.1, at p.105, ll.23 – p. 108, ll.20, p.136, ll.22 – p.137, ll.15; PX.84 (Ex.23); DX.31 (Ex.27).3 2 Dr. Galles’ comment about numbers and referrals dropping like a rock was shown to be false. Infra. 3 UPC cannot avoid liability by labeling their ageist statements as “stray comments.” Comments indicating age animus are particularly important when they are made by people who are primarily responsible for a termination. Russell v. McKinney Hosp. Venture, 235 F.3d 219, 226 (5th Cir. 2000). In this case, the ageist comments were made by the same people who decided to fire Dr. Willard, including Kaltenbacher and Dr.Galles. Indeed, the position that UPC was getting rid of older doctors to make more money with younger doctors was attributed to Administrative Director Ryan Oss who did not deny making the statement when confronted. The relevance of discrimination-related remarks does not depend on their offensiveness, but rather on their tendency to show that the decision-maker was motivated by assumptions or attitudes relating to the protected class. Inoffensive remarks may strongly suggest that discrimination motivated a particular employment action.” Tomassi v. Insignia Fin. Grp., Inc., Case 4:16-cv-00677-GKF-JFJ Document 140 Filed in USDC ND/OK on 06/06/18 Page 11 of 34 6 Kaltenbacher always asserted that he terminated Dr. Willard for her refusal to cooperate by not agreeing to move her practice location. However, had this been true, under the terms of Dr. Willard’s contract she should have been given written notice and 30 days to cure. This was not done. The termination notice does not cite Dr. Willard’s alleged refusal to relocate anywhere. (Kalt. Tr. Ex.1, at p. at p. 139, ll.2 – 141, ll.16, p.280, ll.5 – p. 281, ll.10; Patterson, p.368, ll.5 – p. 370, ll.8; PX.1 (Ex.2); PX.14 (Ex.10); PX.17 (Ex.13); PX.18 (Ex.26). It was also admitted at trial that prior to Dr. Willard’s termination, her moving locations was never presented as mandatory but was rather “just loose talks.” (Kalt, Tr. Ex.1, at p. 289, ll.17 – p.290, ll.24, p. 294, ll.5 – 16). The Court properly submitted Instruction No. 17 to the jury without objection. Instruction 17 was agreed upon by the parties before trial and as part of the Court’s ruling on Plaintiff’s Motion in Limine [Dkt.36, 54]. Instruction No. 17 stated: You may not consider evidence of Plaintiff’s profitability and productivity as relevant to the issue why Defendant terminated Willard, but you may consider this evidence as relevant to the issue of why Defendant asked Plaintiff to relocate. (Instruction No. 17, [Dkt. 100, pg. 20]). Again, Defendant never argued at trial that Dr. Willard’s salary was part of its concern regarding her profitability and productivity. Rather, the only evidence offered in that regard by Defendant was Dr. Willard’s alleged low “wRVU” and/or patient visit numbers. Throughout 478 F.3d 111, 116 (2nd Cir. 2007) abrogated in part on other grounds by Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, (2009). See also, Pascal v. Storage Technology Corp., 152 F. Supp. 2d 191 (D. Conn. 2001)( a supervisor’s comment that an employee looked "ok" even though she was "old," supported a prima facie case under the ADEA because it showed that age mattered to the employer). "Age-related comments referring directly to the worker may support an inference of age discrimination." Cone v. Longmont United Hosp. Ass'n, 14 F.3d 526, 531 (10th Cir. 1994); see also Rachid v. Jack In The Box, Inc., 376 F.3d 305, (5th Cir. 2004)(a supervisor's alleged, repeated ageist comments directed to or concerning 52–year–old employee satisfied motivation element of prima facie ADEA claim). Such comments tend to prove discriminatory intent by demonstrating an employer does not treat age neutrally. Duval v. Callaway Golf Ball Operations, Inc., 501 F. Supp. 2d 254, 265 (D. Mass. 2007). Case 4:16-cv-00677-GKF-JFJ Document 140 Filed in USDC ND/OK on 06/06/18 Page 12 of 34 7 trial, however, this argument was dispelled and shown to be pretextual as the evidence presented showed that Dr. Willard was a high referrer (which undisputedly made the organization a profit), was “trending well,” was outperforming her budgeted margins, saw more patients than her younger suite-mate physician, and had a better return on investment than other primary care physicians in her building. (See, e.g., Oss, Tr. Ex. 1, at p.301, ll.2 – p. 302, ll.23, p.304, ll.25 – p. 307, ll.23, p. 307, ll.24 – p.309, ll.16, p. 310, ll.2 – p. 313, ll.8; Kalt. Tr. Ex. 1, at p.75, ll.13 – p.79, ll.11; PX.51, (Ex.19), PX.52 (Ex.20), PX.53 (Ex.21), PX.56 (Ex.22). Evidence was also presented to the jury that Defendant was intentionally misrepresenting Dr. Willard’s profitability as a means to justify her termination for allegedly refusing to relocate. After complaining about Dr. Willard’s “return on investment,” UPC CFO Brandon Mudd reluctantly admitted that Dr. Willard’s return on investment was actually almost $100,000.00 higher than other physicians in her building that were not asked to move or fired. (Mudd, Tr. Ex. 1, at p. 693, ll.20 – p. 695, ll.9; DX.47 (Ex.30). He admitted that the numbers could be sliced and diced a number of ways to reach various conclusions. Id. Not only were proposed office location moves never presented to Dr. Willard as mandatory, the evidence showed that Kaltenbacher was suggesting office locations he already knew to be unacceptable. (Kalt. Tr. Ex.1, at p.125, ll.12 – p. 134, ll.3; PX.12 (Ex.8), PX.13 (Ex.9). In fact, the notion that there was any company wide relocation effort was disputed by the evidence. For example, despite being the administrative manager of Dr. Willard’s office and the liaison between CEO Jim Kaltenbacher and Dr. Willard, Ryan Oss never once mentioned anything about moving locations to Dr. Willard prior to her termination. (Oss, Tr. Ex.1, at p.323, ll.6 – p. 324, ll.8). In fact, Dr. Willard’s suit-mate, Dr. Sarah Andrews, admitted that she was Case 4:16-cv-00677-GKF-JFJ Document 140 Filed in USDC ND/OK on 06/06/18 Page 13 of 34 8 never informed about any company-wide effort to move physician practices. (Andrews, Tr. Ex.1, at p.421, ll.1-7). In July of 2015, “the plan” to terminate Dr. Willard due to her age had been made consistent with the discussions about “getting rid of older doctors and putting in younger ones.” (Kalt, Tr.Ex.1, at p.117, ll.22 – p.119, ll.24; Andrews, p. 423, ll.17 – p.425, ll.19; PX.9 (Ex.5); PX.16 (Ex.12). Dr. Andrews admitted that “the plan” included the termination of Dr. Willard. Id. Mr. Kaltenbacher admitted to being fully aware, at all times relevant to this case, that his actions were governed by the ADEA. (Kalt, Tr. Ex.1, at p.120, ll.12 – p. 121, ll. 5). Thus, in the same time frame Kaltenbacher was secretly reviewing the terms of her contract and making “the plan” to terminate Dr. Willard, he requested two spreadsheets indicating all the UPC physicians’ ages. (Kalt., Tr. Ex.1, at p. 121, ll.6 – p. 123, ll.5; PX.10 (Ex.6), PX.11 (Ex.7).4 Because of continually mounting evidence that she was being targeted due to her age, Dr. Willard scheduled another meeting with Kaltenbacher on the morning of August 20, 2015 to again express her reasonable belief that she was the subject of age discrimination based upon the totality of the evidence supporting the same. (Willard, Tr. Ex.1, at p. 476, ll.8 – p.478, ll.1; Kalt, Tr. Ex.1, at p.134, ll.8 – p.14, p.136, ll.22 – p.137, ll.10). Upon asserting her complaint about age discrimination, Mr. Kaltenbacher immediately and angrily responded by slamming his hands down on the desk between them, standing up and coming toward Dr. Willard, while yelling “you are crazy” and “nuts” and that he thought it was “time that we part ways.” Dr. Willard was 4 Contrary to Defendant’s position that the age related spreadsheets were nothing more than regularly conducted annual “succession planning” studies, it was shown at trial that they were nothing of the sort. Dr. Landgarden admitted that true annual “succession planning” studies included a multitude of factors and that age was only one of many factors considered. However, the spreadsheets requested by Kaltenbacher were limited solely to age. (Landgarden, Tr. Ex.1, at p. 663, ll.11 – 21; PX.10 (Ex.6); PX.11 (Ex.7). Case 4:16-cv-00677-GKF-JFJ Document 140 Filed in USDC ND/OK on 06/06/18 Page 14 of 34 9 physically shaken by this and backed her way out of the room. (Willard, Tr. Ex.1, at p. 476, ll.18 – p. 478, ll.1, p. 544, ll.10 – p. 546, ll.6 ; Kalt, Tr. Ex.1, at p.137, ll.6 -16). Obviously, the jury could reasonably interpret Kaltenbacher’s reaction as retaliatory and evidence of consciousness of guilt. Within minutes of Kaltenbacher exploding at Dr. Willard and telling her it was time to part ways, Kaltenbacher sent an email to Regina Patterson instructing her to draft up a 90 day termination letter for Dr. Willard. (Kalt, Tr. Ex.1, at p. 139, ll.2 – 141, ll.16; Patterson, p.368, ll.5 – p. 370, ll.8; PX.14 (Ex.10); PX.17 (Ex.13). Just minutes after that, Kaltenbacher sent an email to Ardent Vice President of Finance Shannon Fiser stating that he is terminating Dr. Willard and forcing her off her guarantee. (Kalt. Tr. Ex.1, at p. 142, ll.9 – p.l44, ll.6; PX.15 (Ex.11). Kaltenbacher denied, however, it had anything to do with Dr. Willard’s salary and was only because she allegedly refused to relocate. Id. Ryan Oss delivered the termination letter to Dr. Willard the next morning. (Willard, Tr. Ex.1, at p. 478, ll.2 – 24). Following his termination of Dr. Willard, and her complaints of age discrimination, Kaltenbacher circulated a “script” of “talking points” regarding the purported reason for terminating Dr. Willard being her alleged refusal to relocate. The “script” was circulated to HR Director Regina Patterson and several other persons in decision making positions known to be subject to interviews into the investigation of Dr. Willard’s age discrimination complaints. Nothing in the “script” mentions Dr. Willard’s salary as part of the purported legitimate business reason for her termination. (Kalt, Tr.Ex.1, at p.149, ll.3 – p.150, ll.19, p.176, ll.21 – p. 183, ll.5, p.189, ll.1 - p.190, ll.11; Oss, p. 325, ll.19 – p. 328, ll.3, p.365, ll.18 – p. 366, ll.10; Patterson, p. 395, ll.18 – p. 397, ll.21; PX.19 (Ex.14), PX.20 (Ex.15); PX.30 (Ex.18). The jury was certainly Case 4:16-cv-00677-GKF-JFJ Document 140 Filed in USDC ND/OK on 06/06/18 Page 15 of 34 10 capable of viewing this evidence as an attempt to create an “after-the-fact” explanation for Dr. Willard’s illegal termination. Following UPC’s investigations into Dr. Willard’s age discrimination complaints, each of which corroborated the facts reported, Human Resources Director Regina Patterson sent Dr. Willard an email falsely stating that they did not find anything to do with her age discrimination complaints. (Willard, Tr. Ex. 1, at p. 486, ll.12 – 25; PX.30 (Ex.18). However, after UPC’s “investigation,” and the involvement of UPC’s defense attorney, Dr. Willard received an offer to rescind her termination specifically conditional upon her agreeing to new working conditions in another location. Again, she had never before been told that she had to move locations to keep her job. (Willard, Tr. Ex. 1, at p. 487, ll.4 – p. 490, ll.13). Indeed, the evidence at trial was clear that before Dr. Willard was terminated on August 21, 2015, she was never told that her job was conditional upon her moving locations and Kaltenbacher agreed that discussions about moving could be interpreted as “optional.” (Kalt. Tr. Ex.1, at p.110, ll.24 – p. 111, ll.4, p. 113, ll.23 – p.114, ll.23, p.128, ll.10 – p. 129, ll.12, p.192, ll.11 – p. 193, ll.20; Oss, p. 328, ll.11-16; Willard, p.474, ll.3 – p.476, ll.7; PX.12 (Ex.8); PX.13 (Ex.9). In contrast, the evidence at trial conclusively showed that any offer to rescind her termination was in absolutely conditional upon her moving locations – something that had never before been a condition of her employment. (Kalt, Tr. Ex.1, at p.193, ll.21 – p.196, ll.10; Patterson, Tr. Ex.1, at p. 405, ll.17 – p. 406, ll.8; Willard, Tr. Ex. 1, p.543, ll.19 – 24, p. 544, ll.10 – p. 546, ll.6; DX.58 (Ex.31). Dr. Willard’s rejection of the conditional offer to rescind her termination was reasonable. Among other things, one of the spaces would require her to work alone, another was too far from Case 4:16-cv-00677-GKF-JFJ Document 140 Filed in USDC ND/OK on 06/06/18 Page 16 of 34 11 the her patients, was rundown and infested with raccoons, and the others were the Urgent Care facility and Mingo Valley office – both of which Kaltenbacher had already admitted were either not a good fit or knew was unacceptable. (Willard, Tr. Ex. 1, at p.488, ll.5 – p. 490, ll.1). Dr. Willard also reasonably rejected the conditional offer to rescind her termination because she would have had been put in the untenable position of having to work with Kaltenbacher who certainly had crossed a line and become violent in response to her age discrimination complaint and fired her in retaliation for reporting age discrimination. (Willard, Tr. Ex. at p.490, ll.1 – 13, p. 544, ll.10 – p. 546, ll.6; DX.58). In fact, Kaltenbacher and Patterson both agree that Dr. Willard’s refusal of the conditional offer was reasonable. (Kalt., Tr. Ex.1, at p.56, ll.25 – p. 58, ll.13, p. 59, ll.12 – 22, p. 61, ll.10 – p.62, ll.14, p.194, ll.15 – p.196, ll.10; Patterson, Tr. Ex.1, at p. 405, ll.17 – p. 406, ll.8). B. Plaintiff’s Proof of Pretext was Overwhelming and Supports the Verdict. Defendant has not, and does not now, raise any argument regarding the sufficiency of evidence presented regarding “pretext.” Indeed, Defendant did not object to any portion of the law recited in Instruction No. 15 regarding pretext, only the Court’s refusal to include the additional “business judgment” language proposed by Defendant. Instruction No. 15 states: Defendant contends it did not terminate Willard because of her age, but rather because she refused to relocate office space. You may find Defendant terminated Willard because of her age if it has been proved that Defendant’s stated reason for terminating Plaintiff is not the real reason, but simply a pretext to hide age discrimination. If Plaintiff proves Defendant’s stated reason is pretext, you may, but are not required to, infer Defendant terminated Plaintiff because of her age. (Jury Instruction No. 15, [Dkt.100, pg.18]). In Jones v. Okla. City Pub. Sch, 617 F.3d 1273, 1280 (10th Cir. 2010) the Tenth Circuit cited with approval the United States Supreme Court decision and rationale set forth in Reeves v. Sanderson Plumbing Prods., 530 U.S. 133, 147-48, 120 S. Ct. 2097, 2108-09 (2000). Reeves Case 4:16-cv-00677-GKF-JFJ Document 140 Filed in USDC ND/OK on 06/06/18 Page 17 of 34 12 expressly held that sufficient evidence to find that the employer's asserted justification is false, may permit the trier of fact to conclude that the employer unlawfully discriminated. Id. at 148. No additional evidence is necessary to show discrimination because "[p]roof that the defendant's explanation is unworthy of credence is simply one form of circumstantial evidence that is probative of intentional discrimination." Id. at 147. A plaintiff produces sufficient evidence of pretext when she shows "such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer's proffered legitimate reasons for its action that a reasonable fact finder could rationally find them unworthy of credence and hence infer that the employer did not act for the asserted non-discriminatory reasons." Jones v. Okla. City Pub. Sch, 617 F.3d 1273, 1280 (10th Cir. 2010), citing, Jaramillo v. Colo. Judicial Dep't, 427 F.3d 1303, 1308 (10th Cir. 2005). The Court in Reeves stated: Proof that the defendant's explanation is unworthy of credence is simply one form of circumstantial evidence that is probative of intentional discrimination, and it may be quite persuasive. (citations omitted). In appropriate circumstances, the trier of fact can reasonably infer from the falsity of the explanation that the employer is dissembling to cover up a discriminatory purpose. Such an inference is consistent with the general principle of evidence law that the fact finder is entitled to consider a party's dishonesty about a material fact as "affirmative evidence of guilt." (internal citations omitted). Moreover, once 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. See, Furnco Constr. Corp. v. Waters, 438 U.S. 567, 577, 57 L. Ed. 2d 957, 98 S. Ct. 2943 (1978) ("When all legitimate reasons for rejecting an applicant have been eliminated as possible reasons for the employer's actions, it is more likely than not the employer, who we generally assume acts with some reason, based his decision on an impermissible consideration"). Reeves v. Sanderson Plumbing Prods., 530 U.S. 133, 147-48, 120 S. Ct. 2097, 2108-09 (2000). The jury in this case was properly instructed on the law as shown above in Instruction No. 15. The law is clear that sufficient evidence of pretext alone permits the jury to find that Defendant’s termination of Dr. Willard was unlawful age discrimination and/or retaliation. As Case 4:16-cv-00677-GKF-JFJ Document 140 Filed in USDC ND/OK on 06/06/18 Page 18 of 34 13 shown above, the evidence of pretext was overwhelming and compelling. It was certainly sufficient for the jury’s verdict. Indeed, what Defendant now argues should be applied amounts to the rejected “pretext plus” standard. See, Jones v. Okla. City Pub. Sch, 617 F.3d 1273, 1280 (10th Cir. 2010)(citing, Reeves, “the Supreme Court rejected the so-called ‘pretext plus’ standard that required plaintiffs using the McDonnell Douglas framework to both show pretext and produce ‘additional evidence of discrimination’). Defendant’s failure to object to Instruction No. 15 regarding the statement that “Defendant contends it did not terminate Willard because of her age, but rather because she refused to relocate office space” also shows why its renewed motion for judgment as a matter of law and motion for new trial must fail. At no time during the trial did Defendant proffer the cost of Dr. Willard’s salary as a legitimate business reason for her termination. In fact, Defendant vehemently denied throughout trial that Dr. Willard’s guaranteed salary had anything to do with her termination. To the contrary, the evidence showed that Defendant endeavored to conceal its association of Dr. Willard’s salary with her age because it knew it violated the ADEA. (See, e.g., Kalt. Tr.Ex.1, p.72, ll.5 – 74, ll.15, p.81, ll.1-8, p. 114, ll.24 – p.117, ll.21; PX.3 (Ex.3); PX.4 (Ex.4); PX.9 (Ex.5). C. Salary Associated with Age, Experience, and Skill is an Impermissible Excuse for Age Discrimination. Contrary to Defendant’s argument, cases from this Circuit and others hold that termination decisions that correlate higher salaries with age are violative of the ADEA. In Whitten v. Farmland Indus., 759 F. Supp. 1522 (D. Kan. 1991) the Court recognized that courts have generally held that programs which reduce costs by eliminating older employees who earn higher wages violates the ADEA. Id. at 1537, citing, Metz v. Transit Mix, Inc., 828 F.2d 1202, 1207 (7th Cir. 1987)(cost-based employer practices having adverse impact on older workers Case 4:16-cv-00677-GKF-JFJ Document 140 Filed in USDC ND/OK on 06/06/18 Page 19 of 34 14 undermine ADEA); Leftwich v. Harris-Stowe State College, 702 F.2d 686, 691 (8th Cir. 1983)(selection plans that eliminate older workers with higher salaries violates ADEA); Nemeth v. Clark Equip. Co., 677 F. Supp. 899, 910 n.12 (W.D. Mich. 1987) (replacing older work force with younger, lower-salaried employees to reduce labor costs constitutes impermissible age discrimination). Similarly, in Decker v. Coastal Derby Ref. Co., No. 90-1070-PFK, 1993 U.S. Dist. LEXIS 2907, at *17 (D. Kan. 1993) the Court held that employer established selection plans or programs that eliminate older workers with higher salaries violates the ADEA. Indeed, the ADEA has consistently been interpreted by the administrative agencies charged with its enforcement and the courts to prohibit an employer from replacing higher paid employees with lower paid employees in order to save money. The Equal Employment Opportunity Commission guidelines expressly provide that "[a] differentiation based on the average cost of employing older employees as a group is unlawful except with respect to employee benefit plans which qualify for the section 4(f)(2) exception to the Act." 29 C.F.R. § 1625.7(f) (1986). This position is consistent with that adopted by the Department of Labor when it administered the ADEA: It should also be made clear that a general assertion that the average cost of employing older workers as a group is higher than the average cost of employing younger workers as a group will not be recognized as a differentiation under the terms and provisions of the Act, unless one of the other statutory exceptions applies. To classify or group employees on the basis of age for the purpose of comparing costs, or for any other purpose, necessarily rests on the assumption that the age factor alone may be used to justify a differentiation -- an assumption plainly contrary to the terms of the Act and the purpose of Congress in enacting it. Differentials so based would serve only to perpetuate and promote the very discrimination at which the Act is directed. 29 C.F.R. § 860.103(h) (1979) (emphasis added). Courts have emphatically rejected business practices in which "the plain intent and effect . . . was to eliminate older workers who had built up, through years of satisfactory service, higher Case 4:16-cv-00677-GKF-JFJ Document 140 Filed in USDC ND/OK on 06/06/18 Page 20 of 34 15 salaries than their younger counterparts." Leftwich v. Harris-Stowe State College, 702 F.2d 686, 691 (8th Cir. 1983); see also, EEOC v. Chrysler Corp., 733 F.2d 1183 (6th Cir. 1984); Dace v. ACF Indus., Inc., 722 F.2d 374 (8th Cir. 1983), aff'd on rehearing, 728 F.2d 976 (1984); Geller v. Markham, 635 F.2d 1027 (2d Cir. 1980), cert. denied, 451 U.S. 945, 68 L. Ed. 2d 332, 101 S. Ct. 2028 (1981). See also, 1 H. Eglit, Age Discrimination § 16.32 (1985). The ADEA is aimed at protecting the individual employee. Section 623(a)(1) prohibits practices that "discriminate against any individual . . . because of such individual’s age." (Emphasis added). The statute's language indicates that it shares the same focus as Title VII legislation: "fairness to individuals rather than fairness to classes." City of Los Angeles Dep't of Water & Power v. Manhart, 435 U.S. 702, 709, 98 S. Ct. 1370, 55 L. Ed. 2d 657 (1978); see also Connecticut v. Teal, 457 U.S. 440, 453-54, 102 S. Ct. 2525, 73 L. Ed. 2d 130 (1982) ("The principal focus of [Title VII] is the protection of the individual employee, rather than the protection of the minority group as a whole. Indeed, the entire statute and its legislative history are replete with references to protection for the individual employee."). The same ADEA policy concern that forms the basis for rejecting cost-based employer practices that have an adverse impact upon older workers as a group is present in cases where an employee is terminated due to a correlation between her higher salary and her years of satisfactory service. Permitting an employer to terminate an older employee based on the higher cost of employing her would defeat the intent of the statute. Because of the high correlation between age and salary, it would undermine the goals of the ADEA to recognize cost-cutting as a nondiscriminatory justification for an employment decision. Metz v. Transit Mix, Inc., 828 F.2d 1202, 1205-06 (7th Cir. 1987). The Eighth Circuit in DACE v. ACF Indus., Inc., 722 F.2d 374 (8th Cir. 1983), aff'd on rehearing, 728 F.2d 976 (1984) upheld a jury verdict in favor of the Case 4:16-cv-00677-GKF-JFJ Document 140 Filed in USDC ND/OK on 06/06/18 Page 21 of 34 16 plaintiff holding that discrimination on the basis of factors, like seniority, that invariably would have a disparate impact on older employees is improper under the ADEA. Id. at 378. Contrary to Defendant’s argument, federal courts have held that economic savings derived from discharging older employees cannot serve as a legitimate justification under the ADEA for an employment selection criterion. See, e.g., Geller v. Markham, supra, 635 F.2d at 1034; Laugeson v. Anaconda Co., 510 F.2d 307, 316-317 (6th Cir. 1975). As the court in Marshall v. Arlene Knitwear, 454 F. Supp. 715, 728 (E.D. N.Y. 1978), stated in straightforward fashion: Where economic savings and expectation of longer future service are directly related to an employee's age, it is a violation of the ADEA to discharge the employee for those reasons. [Citations omitted.] Id. at 728. Where economic savings and expectation of longer future service are directly related to an employee's age, it is a violation of the ADEA to discharge the employee for those reasons. See Coates v. National Cash Register Co., 433 F. Supp. 655, 661 (W.D. Va. 1977); LaChappelle v. Owens-Illinois, Inc., 513 F.2d 286, 14 FEP Cases 737, 739-40 (N.D. Ga. 1970). Marshall v. Arlene Knitwear, Inc., 454 F. Supp. 715, 728 (E.D.N.Y. 1978). Although Defendant attempted to conceal it, there was sufficient evidence to show that, in addition to all the other evidence of age animus, Defendant inextricably intertwined Dr. Willard’s guaranteed contract and salary to her age, experience, skill, and better patient experiences. (See, Kaltenbacher, Tr. Ex.1, 39, ll.1-13, p. 45, ll.10 – p. 46, ll.13, p.48, ll.8 - 14, p.49, ll.7-9; Willard, Tr. Ex.1, at p. 536, ll.24 – p. 537, ll.15; Clark, Tr. Ex.1, p.32, ll.11-20). The Court even agreed with this assessment. (Court, Tr. Ex.1, at p. 165, ll.24 – p. 166, ll.10, p.641, ll.5-11). In fact, Dr. Willard was the only physician that had such a contract. (Kalt., Tr.Ex. 1, at p.49, ll. 7-9). Dr. Galles’ statement that Dr. Willard was a “senior physician” and Mr. Case 4:16-cv-00677-GKF-JFJ Document 140 Filed in USDC ND/OK on 06/06/18 Page 22 of 34 17 Kaltenbacher’s statement to Dr. Willard that “most physicians her age retire,” while at the same time secretly reviewing her contract termination provisions, remaining duration and guarantee, is evidence that Defendant absolutely correlated Dr. Willard’s age with her salary. Moreover, the conversations from the May 6, 2015 secret meeting between Ryan Oss and Dr. Sarah Andrews, in which the idea that UPC was getting rid of older physicians to make more money with younger physicians was attributed to Mr. Oss was investigated and corroborated. Again, as shown above, when confronted Mr. Oss did not deny making such a statement. Instead he responded that he had to check with Dr. Andrews to see if she remembered him making such a statement. This was proper for the jury to consider along with the totality of other evidence. The cases cited by Defendant do not support its renewed Rule 50 Motion. Hazen Paper Co. v. Biggins, 507 U.S. 604, 113 S.Ct. 1701, 123 L.Ed 2d 338 is not applicable to the facts of this case and does not stand for the blanket notion that no action for age discrimination can stand when an older employee is terminated to “save money.” First, Hazen, like many of the cases cited by Defendant, involved a qualified pension plan decision that fell under ERISA and did not entail the same analysis. Second, the Court in Hazen was very clear that it only applied to the specific pension plan and facts before it. The Hazen Court did not rule out a case for age discrimination when there is evidence that the employer correlates the age of an employee with salary and terminates the employee as a result. See, Hazen, 113 S. Ct. at 1707-1708. Similarly, Reeder v. Wasatch County Sch. Dist., 359 Fed. Appx. 920 (10th Cir. 2009)(unpublished) does not support Defendant’s motion. The Court in Reeder simply stated that evidence that an employer’s termination of an employee with the stated goal of saving money would not survive summary judgment absent any evidence that the employee’s age was linked to the economic benefit saved. This unpublished decision again shows that contrary to Case 4:16-cv-00677-GKF-JFJ Document 140 Filed in USDC ND/OK on 06/06/18 Page 23 of 34 18 Defendant’s position, age linked to economic benefits can be actionable. Moreover, it is factually inapplicable to the case at bar because Dr. Willard did present evidence, inter alia, that Defendant inextricably linked Dr. Willard’s individual salary to her age, experience, loyalty, and skill. Apsley v. Boeing Co., 722 F. Supp.2d 1218 (D. Ks. 2010) does not support Defendant’s Motion. This case affirmed a ruling in favor of Defendant at the summary judgment stage that found the employer’s companywide employment decision were wholly motivated by articulated decisions unrelated to age. The court did not rule out a valid claim when age is demonstrated to correlate to a negative economic decision by an employer. Hamilton v. Grocers Supply Co., 986 F.2d 97 (5th Cir. 1993) does not apply. In Hamilton, the court affirmed the lower court’s dismissal of the plaintiffs’ claims because they could not meet their burden to show the employer’s articulated reason for termination was pretextual. Indeed, Hamilton does not even reach the issue of age/salary correlation and only mentions another case in dicta while refusing to address the issue. Denio v. Asplundh Tree Expert Co., 92 F.3d 1177 (4th Cir.1996)(unpublished) is inapplicable as it dealt with the plaintiff employee’s failure to meet its burden to show the employer’s articulated reason for termination was to eliminate a supervisory position in a workforce reduction plan. The case of Broaddus v. Florida Power Corp., 145 F.3d 1283 is not applicable as the Court found error in the fact that the jury heard evidence of ERISA related medical evidence and the Court refused to give a curative instruction. Defendant’s reliance on Anderson v. Baxter Healthcare Corp., 13 F.3d 1120 (7th Cir. 1994 is also misplaced. Anderson actually recognizes that high salary cannot be used as an Case 4:16-cv-00677-GKF-JFJ Document 140 Filed in USDC ND/OK on 06/06/18 Page 24 of 34 19 impermissible proxy for age discrimination when one is correlated with the other. The Anderson court simply affirmed summary judgment because the plaintiff could not show that the employer’s articulated reason for termination was pretextual. In the case at bar, 1) Defendant UPC never articulated Dr. Willard’s salary as a legitimate business reason for her termination - if Defendant truly believed her high guaranteed contract was a legitimate reason to terminate Dr. Willard, and that it had nothing to do with her age, there would have been no reason to conceal it; 2) Dr. Willard did present evidence that Defendant, despite attempting to conceal it, inextricably linked her age to her salary, longevity, experience, and skill; 3) Dr. Willard proved that Defendant’s articulated reasons for her termination were pretextual; 4) Dr. Willard presented evidence of age animus in addition to age/salary correlation. D. Dr. Willard had a Reasonable Belief that She was the Target of Age Discrimination – Supporting the Verdict for Retaliation In this Circuit, a plaintiff need not be successful on an original charge of discrimination in order to have a valid claim of retaliation. Archuleta v. Colo. Dep't of Inst., Div. of Youth Servs., 936 F.2d 483, 487 (10th Cir. 1991); Romero v. Union Pacific Railroad, 615 F.2d 1303, 1307 (10th Cir. 1980). Protected opposition can range from filing formal charges to voicing informal complaints to superiors. Hertz v. Luzenac Am., Inc., 370 F.3d 1014, 1015-16 (10th Cir. 2004). A plaintiff need not convince the jury that her employer had actually discriminated against her; she need only show that when she engaged in protected opposition, she had a reasonable good-faith belief that the opposed behavior was discriminatory. Id. Although no magic words are required, to qualify as protected opposition the employee must convey to the employer her concern that the employer has engaged in a practice made unlawful by the ADEA. Hinds v. Sprint/United Mgmt. Co., 523 F.3d 1187, 1203 (10th Cir. 2008). The reasonableness of the plaintiff's belief is to be assessed in light of the totality of Case 4:16-cv-00677-GKF-JFJ Document 140 Filed in USDC ND/OK on 06/06/18 Page 25 of 34 20 the circumstances. Galdieri-Ambrosini v. Nat'l Realty & Dev. Corp., 136 F.3d 276, 292 (2nd Cir. 1998), Reed v. A.W. Lawrence & Co., 95 F.3d at 1170, 1178 (2nd Cir.1996). Courts in this Circuit do not apply a stringent test to the “reasonableness” assessment. For example, in Rodriguez v. Wet Ink, LLC, 08-cv-00857-MSK-CBS, 2014 U.S. Dist. LEXIS 10228, at *9, 2014 WL 287339(D. Colo. Jan. 27, 2014) the Court found that the employee’s company’s handbook which encouraged the reporting of suspected discrimination was a sufficient basis to conclude that the employee’s belief was “reasonable.” The court in Rodriguez stressed the importance of empowering employees to report what they reasonably believe is discriminatory conduct without fear of reprisal. The Rodriguez Court stated: It would appear to this Court, however, that it is inappropriate to measure the reasonableness of a lay employee's belief about the scope of antidiscrimination laws through any rigid metric. Few employees, if pressed, could correctly identify the particular factors that a court examines in assessing a hostile work environment claim. It seems inappropriate to require an employee, before making a good-faith claim of harassment to their employer, to stop and apply the same legal inquiry and filters to that complaint that employment lawyers or the courts would apply to a formal Title VII claim. Most employees lack the legal training, or, for that matter, the underlying familiarity with the operation of Title VII to make such an assessment. Thus, it appears to be more appropriate to assess the reasonableness of an employee's good-faith belief that behavior was unlawful harassment with a simpler inquiry: whether an employee, perhaps familiar only with the basic notion that the law prohibits sex discrimination and sexual harassment, could reasonably believe that the type of conduct she complains of might be unlawful. Id. at *9. See also, Thornton v. Morgan Stanley Smith Barney, Ltd. Liab. Co., No. 12-CV-298- TCK-FHM, 2014 U.S. Dist. LEXIS 183756, at *49 (N.D. Okla. Nov. 26, 2014)(proper inquiry is whether an employee, perhaps familiar only with the basic notion that the law prohibits discrimination could reasonably believe that the type of conduct she complains of might be unlawful); Bd. of Cnty. Comm'rs, Fremont Cnty., Colo., v. E.E.O.C., 405 F.3d 840, 852 (10th Cir. 2005)(employees may maintain retaliation claim based on a reasonable good-faith belief that the underlying conduct violated the law. This empowers employees to report what they Case 4:16-cv-00677-GKF-JFJ Document 140 Filed in USDC ND/OK on 06/06/18 Page 26 of 34 21 reasonably believe is discriminatory conduct without fear of reprisal); Crumpacker v. Kan. Dep't of Human Res., 338 F.3d 1163, 1172 (10th Cir. 2003)(plaintiffs can maintain retaliation claims based on a reasonable good-faith belief that the underlying conduct violated the law and any other rule would reduce the incentive for asserting otherwise valid claims at the ‘margins’ of the law); Rodriguez v. Wet Ink, LLC, No. 08-cv-0857-MSK, 2014 U.S. Dist. LEXIS 10228, 2014 WL 287339, at *2 (D. Colo. Jan. 27, 2014) (The 10th Circuit has long held that an employee's mistaken-yet-good-faith belief that she is being discriminated against makes her complaint to that effect 'protected activity' under the law). By permitting plaintiffs to maintain retaliation claims based on a reasonable good-faith belief that the underlying conduct violated the law, employees are able to report what they reasonably believe is discriminatory conduct without fear of reprisal. Strong policy supports allowing plaintiffs to maintain such claims. Crumpacker v. Kan. Dep't of Human Res., 338 F.3d 1163, 1172 (10th Cir. 2003), citing, Robben v. Runyon, 2000 U.S. App. LEXIS 1358, No. 98-3177, 2000 WL 123421, at *5 (10th Cir. Feb. 1, 2000)(Murphy, J., concurring). Consistent with the law of this Circuit, the Court correctly gave Instruction No. 19 without objection from Defendant. Instruction 19 defined “reasonable” and “good faith” belief with regard to Plaintiff’s engagement in protected activity necessary to support a retaliation claim. The instruction stated that “[a] ‘good faith’ belief is a belief which the Plaintiff honestly held.” It further instructed that “[a] ‘reasonable belief is a belief which a reasonable person under the same or similar circumstances as Plaintiff would have held.” (Instruction No. 19 [Dkt.100, pg.22]). During his Rule 50 Motion at trial, Counsel for Defendant admitted that Dr. Willard in fact had a “good faith” belief in her complaints of age discrimination. He stated: Case 4:16-cv-00677-GKF-JFJ Document 140 Filed in USDC ND/OK on 06/06/18 Page 27 of 34 22 And, your Honor, on the retaliation claim, a plaintiff must have a reasonable good-faith belief that what that what she’s complaining about is unlawful discrimination. Now, she doesn’t have to know the law. It doesn’t have to actually end up being unlawful. But in additional to having a good-faith belief – and we’re not disputing whether or not Dr. Willard had a good-faith belief – but her belief must also be reasonable. (Clark, Tr. at p.631, ll.17-23).5 Moreover, Defendant’s own employees admitted that Dr. Willard’s complaints and beliefs were reasonable. HR Director Regina Patterson was asked about Defendant’s Exhibit 58, which was an email from Dr. Willard which in part describes her belief that “she was targeted due to her age.” When asked whether she had any doubt about Dr. Willard’s sincerity and reasonableness regarding the statement, Ms. Patterson responded that “[s]he (Dr. Willard) has every right to feel the way that she does.” (Patterson, Tr. Ex.1, at p. 405, ll.17 – p. 406, ll.8; DX.58 (Ex.31). CEO Jim Kaltenbacher also agreed that Dr. Willard acted reasonably and honestly in raising her age discrimination complaints to him and others. (Kaltenbacher, Tr. at p.56, ll.25 – p. 58, ll.13, p. 59, ll.12 – 22, p. 61, ll.10 – p.62, ll.14, p.194, ll.15 – p.196, ll.10; DX.58 (Ex.31). It stands to reason that if Defendant’s own HR Director and CEO believe Dr. Willard had a reasonable belief, then the standard of “whether a reasonable person under the same or similar circumstances as Plaintiff would have also” is conclusively met. Kaltenbacher also agreed that Dr. Willard’s reports of age discrimination were consistent with the Ardent Code of Conduct which encouraged reporting for any suspected inappropriate or unethical conduct or anything that goes against the company’s mission and principals – several of which include a prohibition against age discrimination and the ostracizing of someone for 5 Defendant’s argument that Dr. Willard’s belief could not be legally “reasonable” is contrary to its counsel’s own argument at the Rule 50 motion and the law of this Circuit. Defendant now argues that Dr. Willard had to be well versed in the intricacies of the law regarding age/salary correlation – a legal issue not accurately presented by Defendant in their present brief and one not asserted in its original Rule 50 motion at trial. (Clark, Tr. Ex. 1, at p.629, ll.14 – p. 632, ll.14). Case 4:16-cv-00677-GKF-JFJ Document 140 Filed in USDC ND/OK on 06/06/18 Page 28 of 34 23 reporting age discrimination. (Kalt., Tr. Ex.1, at p.55, ll.10 – p. 63, ll.21; PX.102 (Ex.24, at e.g., “Kevin Gross Message,” §1.2, 1.3, 1.4, 2.1); PX. 35 (Ex.25). Pursuant to authority cited above, this was a sufficient basis for Dr. Willard’s belief to be “reasonable. Moreover, the violent outburst and abrupt termination of Dr. Willard by Kaltenbacher in response to her final report of age discrimination could well have been interpreted by the jury as consciousness of guilt, and therefore evidence of the “reasonableness” of Dr. Willard’s belief. Certainly the totality of evidence presented to the jury was sufficient for it to unanimously conclude Dr. Willard’s belief was reasonable and support its verdict on her claim of retaliation. II. DEFENDANT’S RULE 59 MOTION FOR NEW TRIAL SHOULD BE DENIED. Defendant’s alternative Rule 59 Motion for New Trial is limited to the Court’s submission of two instructions which Defendant claims contained errors. First, Defendant claims that Instruction No. 15, dealing with “pretext,” should have included certain “business judgment” language proposed by Defendant. Defendant does not raise any issue with the remainder of Instruction No. 15. Second, Defendant argues that Instruction No. 20, dealing with damages and mitigation, should not have included language that UPC’s post termination notice offer of employment had to be unconditional. Defendant did not object to any other portion of Instruction No. 20. Parties seeking reversal of a jury verdict or of a denial of a motion for new trial must establish the alleged trial errors were both prejudicial and clearly erroneous. Shultz v. Rice, 809 F.2d 643, 655 (10th Cir. 1986); Rasmussen Drilling, Inc. v. Kerr-McGee Nuclear Corporation, 571 F.2d 1144, 1148 (10th Cir. 1978). A choice made by the finder of fact between two permissible views of the evidence is not clearly erroneous and is conclusively binding on appeal. Shultz v. Rice, 809 F.2d 643, 655 (10th Cir. 1986); United States v. Yellow Cab Company, 338 Case 4:16-cv-00677-GKF-JFJ Document 140 Filed in USDC ND/OK on 06/06/18 Page 29 of 34 24 U.S. 338, 94 L. Ed. 150, 70 S. Ct. 177 (1949); White v. Conoco, Inc., 710 F.2d 1442, 1448 (10th Cir. 1983); Rasmussen Drilling, 571 F.2d at 1148, 1149. A Motion for New Trial is "not regarded with favor and should only be granted with great caution." United States v. Kelley, 929 F.2d 582, 586 (10th Cir. 1991). “A new trial is appropriate only where the claimed error substantially, and adversely, affects the rights of a party." Sanjuan v. IBP, Inc., 160 F.3d 1291, 1297 (10th Cir. 1998). The court should "ignore errors that do not affect the essential fairness of the trial." McDonough Power Equip. v. Greenwood, 464 U.S. 548, 553, 104 S. Ct. 845, 848-49 (1984). Indeed, the general rule governing motions for a new trial in the district courts is contained in Federal Rule of Civil Procedure 61, which provides: Unless justice requires otherwise, no error in admitting or excluding evidence—or any other error by the court or a party—is ground for granting a new trial, for setting aside a verdict, or for vacating, modifying, or otherwise disturbing a judgment or order. At every stage of the proceeding, the court must disregard all errors and defects that do not affect any party’s substantial rights. F.R.C.P. 61 If the evidence in the record, viewed from the standpoint of the successful party, is sufficient to support the jury verdict, a new trial is not warranted merely because the jury could have reached a different result. Neither the trial court nor the Court of Appeals may substitute its judgment for that of the jury on disputed issues of fact. Rogers v. Exxon Research & Eng'g Co., 404 F. Supp. 324, 337 (D.N.J. 1975), reversed on other grounds. A. The Court Properly Refused to Include Defendant’s “Business Judgment” Language in Instruction No. 15. The language proposed by Defendant does not accurately reflect the law. It is was also unnecessary and misleading. Defendant misapplied Riggs v. Airtran Airways, Inc., 497 F.3d 1108 (10th Cir. 2007). Riggs does not stand for the blanket proposition that an “employers business judgment cannot be second guessed” even when there is evidence, as in this case, that Case 4:16-cv-00677-GKF-JFJ Document 140 Filed in USDC ND/OK on 06/06/18 Page 30 of 34 25 the professed “business judgment” is pretextual. In Riggs, a summary judgment case, the Court merely affirmed because there was no evidence of discrimination or pretext in the face of the defendant’s professed business judgment. That was obviously not the case in Dr. Willard’s trial. The language proposed by Defendant was impermissible in that it would eviscerate the ability of any plaintiff in a discrimination case from engaging in the recognized burden shifting standards and ability to show that a defendant’s proffered “business reasons” were pretextual. Thus, it was properly rejected by the Court. B. The Court Properly Included “Unconditional” in Instruction No. 20. Instruction 20 regarding “mitigation” given by the Court accurately reflects the law and was proper. Defendant ignores the fact that Ford Motor Co. v. EEOC, 458 U.S. 219, 230-32, 102 S.Ct. 3057 (1982) states that an offer to re-employ a wrongfully terminated employee must be “unconditional.” Defendant left this critical element out of its proposed instruction intentionally because it knew its employees had all testified that before Dr. Willard’s termination, her employment was not conditional upon her moving locations, but the offer to rescind her termination was conditional upon her moving locations. The evidence at trial was no different. The evidence also showed that all of the locations suggested to Dr. Willard were unacceptable; indeed they were already admittedly known by Defendant to be unacceptable before being proposed. Thus, the offer to rescind was not only conditional, it was disingenuous. An employer cannot eliminate damages from a discriminatory termination by making a conditional offer that a reasonable employee would not accept. See, e.g., Bruno v. W.B. Saunders Co., 882 F.2d 760,770 (3rd Cir. 1989), cert den. 493 U.S. 1062; Jackson v. Shell Oil Co., 702 F.2d 197, 202 (9th Cir. 1983). Questions about whether a reasonable person would accept a conditional offer of re-employment is inherently a fact question for a jury to decide. Case 4:16-cv-00677-GKF-JFJ Document 140 Filed in USDC ND/OK on 06/06/18 Page 31 of 34 26 See, e.g., Smith v. World Ins. Co., 38 F.3d 1456, 1464 (8th Cir. 1994)(the jury reasonably could have concluded that the plaintiff accepted offer when the plaintiff testified that he had no faith in the offer, felt that there was nothing in it to prevent the defendant from making working conditions intolerable, and the same person was still president of the defendant company). Instruction 20 was accurate and proper and does not warrant a new trial or remittitur. C. Defendant’s Request for Remittitur is Without Merit and Should be Denied. Damages assessed by a jury are not to be set aside unless shocking to the judicial conscience or so grossly inadequate as to constitute a miscarriage of justice . . . or unless the jury’s award indicates caprice or mistake or a clear abuse of its fact-finding discretion or the clear influence of partiality, corruption, passion, prejudice, or a misconception of the law. Rogers v. Exxon Research & Eng’g Co., 404 F. Supp. 324, 337-38 (D.N.J. 1975), reversed on other grounds. The trial judge should be extremely reluctant to interfere with the time-honored power of the jury, in the exercise of its collective judgment, to assess the damages sustained by the plaintiff. Id. A trial judge should not order a remittitur or a new trial when the size of the verdict turns upon conflicting evidence and the credibility of witnesses. Palmer v. City of Monticello, 31 F.3d 1499, 1508 (10th Cir. 1994), Farber v. Massillon Bd. of Educ., 917 F.2d 1391, 1395 (6th Cir. 1990). The jury’s award will be considered inviolate so long as it is not so excessive as to shock the judicial conscience and to raise an irresistible inference that passion, prejudice, corruption or other improper cause invaded the trial. Palmer v. City of Monticello, 31 F.3d 1499, 1508 (10th Cir. 1994), Specht v. Jensen, 832 F.2d 1516, 1528 (10th Cir. 1987), remanded on reh’g on other grounds, 853 F.2d 805 (1988). In its Motion, Defendant merely argues that the Court should accept its expert testimony and opinions over those of Plaintiff’s expert’s. This is improper. The jury listened to both Case 4:16-cv-00677-GKF-JFJ Document 140 Filed in USDC ND/OK on 06/06/18 Page 32 of 34 27 experts and reached its own conclusion about what Dr. Willard’s back pay award should be. The jury’s award of $554,483.42 was more than Defendant’s expert opined but was also far less than Plaintiff’s expert opined. The jury’s back pay award is certainly supportable from the record and from the expert analysis of Plaintiff’s expert – whose qualifications have not been questioned. (Westemeir, Tr. Ex.1, at p. 573, ll.19 – p.593, ll.13, p. 595, ll.19 – p.596, ll.11, p.602, ll.7 – p.603, ll.16). The jury also properly considered Plaintiff’s expert’s report which was listed by Defendant as an exhibit. (DX.90 (Ex.32) (PX.77-80, Ex.33). The jury also had all supporting financial evidence admitted without objection by Defendant. (PX.61-69, 71 (Ex.34). The jury’s back pay award to Dr. Willard is certainly not “shocking to the judicial conscience.” It does not infer that “passion, prejudice, corruption or other improper cause invaded the trial.” To the contrary, it is perfectly reasonable, supported by the evidence, and must be considered inviolate under the law. Defendant’s Motion should be denied. III. CONCLUSION. The jury’s verdict and award of damages in this case was righteous and just. Defendant has not met its burden under either Rule 50(b) or Rule 59. WHEREFORE, for the reasons set forth above, Plaintiff respectfully requests the Court deny Defendant’s Renewed Rule 50 Motion, alternative Rule 59 Motion for New Trial, or Remittitur, in its entirety. Respectfully submitted, s/ Michael L. Barkett Michael L. Barkett, OBA No. 16171 Cassie M. Barkett, OBA No. 18658 THE BARKETT LAW FIRM 2021 South Lewis Avenue, Suite 630 Tulsa, OK 74104 918-582-6900 mbarkett@barkettlaw.net Case 4:16-cv-00677-GKF-JFJ Document 140 Filed in USDC ND/OK on 06/06/18 Page 33 of 34 28 ATTORNEY FOR PLAINTIFF CERTIFICATE OF SERVICE I hereby certify that on June 6, 2018, I electronically transmitted the foregoing Brief in Response to Defendant’s Motion to the following counsel of record/ECF registrants: Patrick Clark Patrick.clark@ogletreedeakins.com Amy Jensen Amy.Jensen@ogletreedeakins.com Steven Lance Freije lfreije@lswsl.com Attorneys for Defendant AHS Oklahoma Physician Group, LLC d/b/a Utica Park Clinic s/ Michael L. Barkett Michael L. Barkett Case 4:16-cv-00677-GKF-JFJ Document 140 Filed in USDC ND/OK on 06/06/18 Page 34 of 34