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Moore v. Mountain States Health Alliance

United States District Court, W.D. Virginia, Big Stone Gap Division

March 12, 2018


          Timothy W. McAfee, The McAfee Law Firm, Big Stone Gap, Virginia, for Plaintiff; Kimberly W. Daniel and Jonathan M. Sumrell, Hancock, Daniel & Johnson, P.C., Glen Allen, Virginia, for Defendants.



         The plaintiff claims that she was terminated from her job as a hospital admissions clerk because of her age in violation of the Age Discrimination in Employment Act of 1967 (“ADEA”). Following discovery, the defendants have jointly moved for summary judgment in their favor. In addition, they have filed a motion to strike a declaration of the plaintiff filed in opposition to summary judgment on the ground that it is inconsistent with her discovery deposition and interrogatory answers. I will grant the motion to strike and because I find that the facts show that the defendants are entitled to judgment as a matter of law, I will grant them summary judgment.[1]


         The following facts are taken from the summary judgment record presented in the light most favorable to the plaintiff.

         The plaintiff, Kimberly S. Moore, worked as an admissions clerk for Norton Community Hospital (“Hospital”) since 1991. Her employment was terminated on June 6, 2014. At the time of her termination, she was fifty-four years old and had been employed by the Hospital for nearly twenty-three years.

         Moore was covered by the terms of a collective bargaining agreement (“CBA”) between the Hospital and a labor union. At some point, the Hospital became affiliated with Mountain States Health Alliance, which thereafter operated the Hospital pursuant to a management agreement.[2]

         One of Moore's primary responsibilities as an admissions clerk was to interact with and register patients in a timely manner. All admissions clerks had the same essential job duties: register patients quickly, accurately and efficiently, and present the Hospital in a positive light while interacting with the public. They were also required to report any malfunctioning equipment.

         Over the years, Moore had been criticized by her supervisors for having an unprofessional attitude, and received written warnings for such conduct in 2006 and 2007.

         From 2011 through November 2014, Timothy Cheek, the Hospital's Patient Access Manager, was Moore's manager, and Teresa Stough assisted in supervising Moore. During this period and throughout the remainder of her employment, Moore worked day shifts almost exclusively in the main Hospital Admissions Department.[3] Moore felt that other admissions department team members were given better shifts than her.

         The computer system used by the admissions department changed in 2012. All admissions clerks, including Moore, were provided training on the new system. Moore also received individual training. Admissions clerks could request additional training as needed. Despite this training, Moore could not and did not use her Hospital email account. Important notices were often sent via email.

         The Hospital disciplined Moore on multiple occasions in 2013 and 2014 for what the Hospital considered to be failures to behave professionally and appropriately. For example, it was reported by Ms. Stough on July 25, 2013, that Moore exhibited “unprofessional attitude with staff and management. Multiple complaints by pts and team member of unprofessionalism. Threatening other employees in regards to takeing [sic] shifts. Consistent crying and yelling over job duties that have been given to the team member.” Mem. Supp. Mot. Summ. J. Ex. D, at 52, ECF No. 30-4. Moore personally rated herself as needing improvement in various aspects of her 2013 final performance evaluation.

         A December 19, 2013, Team Member Counseling Report[4] advised that the next disciplinary infraction against Moore would result in her suspension. A month later, another Counseling Report was issued against Moore based on a patient complaint and she was suspended for three days. This decision was upheld by the Hospital's Chief Executive Officer, Mark Leonard, although he reduced her suspension to only one day. As part of her suspension, Moore was required to participate in the Hospital's Employee Assistance Program (“EAP”).[5] At this time, Leonard specifically cautioned Moore that further misconduct would result in her termination. Moore testified in her deposition that she had no reason at that time to believe that CEO Leonard would act unfairly towards her or treat her worse than a younger person. Mem. Supp. Mot. Summ. J., Ex. D, Moore Dep. 106, ECF No. 30-4.

         A mandatory staff meeting was held in April 2014 during which all staff members were allowed to voice their concerns about Moore's behavior at work. Moore believes that she was unfairly subjected to criticism from her fellow employees during this meeting. She testified in her deposition that “I didn't do half of the things ...

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