Carol Sue Hart v. Bon Secours Baltimore Health System

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-2024
CAROL SUE HART,
Plaintiff – Appellant,
v.
BON SECOURS BALTIMORE HEALTH SYSTEM; BON SECOURS BALTIMORE
HEALTH CORPORATION; BON SECOURS HOSPITAL, INCORPORATED,
Defendants – Appellees,
and
LUANN BRADY,
Defendant.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. J. Frederick Motz, District Judge.
(1:08-cv-02516-JFM)
Argued: October 26, 2011 Decided: November 29, 2011
Before TRAXLER, Chief Judge, and SHEDD and FLOYD, Circuit
Judges.
Affirmed by unpublished per curiam opinion.
Ilona McClintick, LAW OFFICE OF ILONA MCCLINTICK, Baltimore,
Maryland, for Appellant. Sidney R. Steinberg, POST & SCHELL,
PC, Philadelphia, Pennsylvania, for Appellees.

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Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Carol Sue Hart appeals the summary judgment entered in
favor of Bon Secours Baltimore Health System, et al. (“Bon
Secours”) on her employment discrimination claims. We affirm.
I
We view the facts in the light most favorable to and draw
all reasonable inferences in favor of Hart, the nonmoving party.
White v. BFI Waste Services, LLC, 375 F.3d 288, 294 (4th Cir.
2004). Hart was the Director of Ancillary Services at Bon
Secours from April 2001 through August 2007. On August 17, 2007,
Hart’s supervisor, LuAnn Brady, informed Hart that she had
decided, as part of a broader restructuring at Bon Secours, to
reduce the number of departments under Hart’s supervision and
change Hart’s position to Director of Imaging. Despite initially
reacting negatively to these changes, Hart accepted her new
position on August 20.
Shortly after this August 17 meeting, Hart began suffering
from stress and headaches. On August 21, Hart’s doctor diagnosed
her with high blood pressure and acute stress disorder.
Thereafter, Hart provided a doctor’s note to Bon Secours and was
approved for medical leave beginning August 22. Hart was cleared
to return to work on September 5. However, Brady, who was out of
town for a family emergency, did not want Hart to return to work

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until they had an opportunity to discuss her new role, so Brady
placed Hart on administrative leave until September 12.
While Hart was on administrative leave, Brady informed the
upper management at Bon Secours that she had decided to
terminate Hart because of issues regarding Hart’s job
performance, management style, and perceived lack of leadership.
However, Bon Secours’ Vice President of Human Resources, Sherine
High, expressed concern about terminating Hart at that time and
recommended that Hart be given a chance to address the issues
raised by Brady and adjust to her new position. Brady accepted
High’s recommendation and drafted “talking points” to address
with Hart upon her scheduled return on September 12.
During this period, multiple issues arose concerning the
certification of the hospital’s Pulmonary Blood Gas Laboratory.
The lab required certification from the College of American
Pathologies (“CAP”) and a license issued by the state of
Maryland under the Clinical Laboratory Improvement Amendments
(“CLIA”). A senior manager and auditor at Bon Secours discovered
that the CAP certification had expired because the CAP invoice
had not been paid on time. In the process of obtaining a current
CAP certification, they further discovered that an invoice for
the CLIA license had also not been paid. On September 12, the
hospital began an investigation into how the CLIA license lapse
had occurred. That same day, Hart returned to work, but was

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immediately suspended pending the results of the investigation
into the CLIA license.
In a report issued on September 21, the Corporate
Responsibility Officer concluded that Hart bore the
responsibility for the lapse because maintaining lab
certification and accreditation were the responsibilities of the
Director of Ancillary Services. On October 1, 2007, Brady sent a
letter to Hart stating that she was being terminated “based on
the results of [the] investigation into the Pulmonary Blood Gas
Lab’s de-certification and [her] role in failing to maintain
certification through ensuring timely payment of required fees.”
J.A. 421. Hart was 55 years old at the time of her termination.
After Hart’s termination, Bon Secours contracted with Ivy
Ventures, a consulting firm in Richmond, Virginia, to provide
managerial support for the imaging department. Ivy Ventures
assigned its 41-year-old employee, Chris Shepperson, to handle
temporarily the responsibilities of the Director of Imaging. Bon
Secours then began interviewing to hire a replacement for Hart.
On December 3, Brady informed Bon Secours employees that she had
decided not to hire any of the candidates and announced that
Shepperson would assume responsibility as interim Director of
Imaging until a permanent hire could be made. On April 4, 2008,
Bon Secours hired Theodore Williams, age 61, as its Director of
Imaging. On May 1, 2008, Bon Secours made a “Revised Offer of

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Employment” to Williams, which he accepted to become the Senior
Director, Clinical Diagnostic Services, a position which
included responsibility for the imaging department.
Hart filed a charge of age discrimination with the
Baltimore Community Relations Commission, which subsequently
issued a notice of right to sue. Hart then filed this action in
federal court, alleging age discrimination under the Age
Discrimination in Employment Act of 1967, 29 U.S.C. § 621 et
seq. (“ADEA”); retaliation under the Family and Medical Leave
Act, 29 U.S.C. § 2601 et seq. (“FMLA”); and defamation.
Bon Secours moved for summary judgment pursuant to Fed. R.
Civ. P. 56, arguing inter alia that Hart failed to establish a
prima facie case under the ADEA or the FMLA, that the evidence
established Bon Secours terminated Hart for non-discriminatory
reasons, and that Hart failed to establish a prima facie case
for defamation under Maryland law. Hart also moved for partial
summary judgment.
In ruling on the motions, the district court correctly
noted that to establish a prima facie claim under the ADEA, Hart
must demonstrate that (1) she was a member of the protected
class; (2) she was qualified for the job and met Bon Secours’
legitimate expectations; (3) she was discharged despite her
qualifications and performance; and (4) following her discharge,
she was replaced by a substantially younger individual with

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similar qualifications. J.A. 892 (citing Warch v. Ohio Cas. Ins.
Co., 435 F.3d 510, 513 (4th Cir. 2006)). The district court then
held:
[Hart] has not satisfied the fourth element because
her claims that she was both replaced by and treated
less favorably than someone substantially younger are
not supported by evidence sufficient to survive
summary judgment. [Hart] first asserts that her
replacement was forty-one-year-old Chris Shepperson,
the interim Director of Imaging, and not sixty-one-
year-old Theodore Williams. This argument is without
merit. Shepperson was an employee of Ivy Ventures, a
consulting firm, and not an employee of Bon Secours
itself. In addition, he served only for the period
during which Bon Secours conducted a search for a
replacement for [Hart]. Similarly, [Hart’s] argument
that Williams did not replace her because he was hired
into a different position must also fail. Whether or
not his job title or responsibilities were precisely
the same, no reasonable jury could find that he did
not assume the responsibilities previously assigned to
[Hart], and thus replaced her. [Hart] even
acknowledges that Williams’s job responsibilities were
identical to those of her previous position as
Director of Ancillary Services.
J.A. 892-93. The district court also found that even if Hart had
made out a prima facie case, Bon Secours provided a legitimate,
non-discriminatory reason for dismissing Hart - namely, the
problems with Hart’s job performance and the lapse in licensing
of the lab – and that Hart failed to present evidence sufficient
for a reasonable jury to find that Bon Secours’ reason was false
or pretext for discriminating against her on the basis of her
age. J.A. 895 (citing Hill v. Lockheed Martin Logistics Mgmt.,
Inc., 354 F.3d 277, 285 (4th Cir. 2004)). Moreover, the district

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court found that even though Hart disputed that she was
responsible for the lab decertification, she failed to produce
evidence showing that Bon Secours did not believe she was
responsible or that they did not fire her because of this
belief. J.A. 895-96.
Further, the district court properly noted that to
establish a prima facie case for retaliation under the FMLA,
Hart must demonstrate that (1) she engaged in protected
activity; (2) Bon Secours took adverse action against her, and
(3) the adverse action was causally connected to her protected
activity. J.A. 896 (citing Cline v. Wal-Mart Stores, Inc., 144
F.3d 294, 301 (4th Cir. 1998)). The district court then found
that although Hart established a prima facie case, Hart failed
to show that Bon Secours’ explanation for firing her was
pretext. The job performance and lab licensing issues arose
months before Hart took FMLA leave and were unrelated to such
leave, and the district court found that, as discussed with
regard to the ADEA claim, Hart failed as a matter of law to meet
her burden of proving that these non-discriminatory reasons were
a pretext. J.A. 897 (citing Nichols v. Ashland Hosp. Corp., 251
F.3d 496, 502 (4th Cir. 2001)).

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For these reasons, the district court granted Bon Secours’
summary judgment motion.*
II
Hart now appeals the district court’s order. In challenging
the order, Hart argues the evidence shows that she proved the
fourth element of her prima facie case under the ADEA and that
there is sufficient evidence to support a finding that Bon
Secours’ justification for firing Hart was a pretext for age
discrimination and retaliation.
“We review the district court's order granting summary
judgment de novo.” White, 375 F.3d at 294. Summary judgment is
appropriate “if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed. R. Civ. P. 56(c). The
relevant inquiry in a summary judgment analysis is “whether the
evidence presents a sufficient disagreement to require
submission to a jury or whether it is so one-sided that one
party must prevail as a matter of law.” Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 251-52 (1986).
* Hart does not appeal the district court’s grant of summary
judgment in favor of Bon Secours on the two defamation claims.

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Having reviewed and considered, de novo, the record,
briefs, and applicable law, and having had the benefit of oral
argument, we are persuaded the district court appropriately
addressed the issues of both the prima facie cases and pretext
and correctly granted summary judgment in favor of Bon Secours
on the ADEA and FMLA claims. Accordingly, we affirm the summary
judgment on those claims based substantially on the reasoning of
the district court. See Hart v. Bon Secours Baltimore Health
System, et al., No. 1:08-cv-02516-JFM (D. Md. Aug. 17, 2010).
AFFIRMED

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