United States District Court, W.D. Virginia, Big Stone Gap Division
KIMBERLY S. MOORE, Plaintiff,
MOUNTAIN STATES HEALTH ALLIANCE, ET AL., Defendants.
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.
OPINION AND ORDER
P. JONES UNITED STATES DISTRICT JUDGE.
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.
following facts are taken from the summary judgment record
presented in the light most favorable to the plaintiff.
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.
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.
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.
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.
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. Moore felt that other admissions
department team members were given better shifts than her.
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.
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.
December 19, 2013, Team Member Counseling
Report 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”). 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
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 ...