Walker v. Washington Regional Medical Center

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IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FAYETTEVILLE DIVISION
PATRICK WALKER 	PLAINTIFF
V. 	CASE NO. 5:23-CV-5126
WASHINGTON REGIONAL MEDICAL CENTER 	DEFENDANT
MEMORANDUM OPINION AND ORDER
Before the Court is Defendant Washington Regional Medical Center’s (“WRMC”)
Motion for Summary Judgment (Doc. 38). Plaintiff Patrick Walker filed a Response in
Opposition (Doc. 43), and WRMC filed a Reply (Doc. 44). In January of 2021, a then-52-
year-old Walker started working at WRMC as the Director of Central Billing Office. In
November of 2022, he resigned from that position under threat of termination. After his
resignation, 	he brought 	this 	suit 	against WRMC 	under 	the Age 	Discrimination 	in
Employment Act. For the reasons below, WRMC’s Motion for Summary Judgment is
GRANTED.
I. BACKGROUND
In January of 2021, Walker was hired by Ashley Moser (his direct supervisor) and
Dan Eckels (his ultimate supervisor) to the position of Director of Central Billing Office.
Twenty-two months later, Moser and Eckels forced the then-54-year-old Walker to resign
from 	the 	same 	position. 	The 	Director 	of 	Central 	Billing 	Office 	was 	tasked 	with
“oversee[ing] the leadership and operations of the centralized business office department”
and the description of job duties included:
promoting employee engagement to achieve a positive workforce; ensuring
the activities of the billing operations are conducted in a manner consistent
with WRMC policy and the law; overseeing operations of the central billing
department, 	including 	claims 	submissions, 	management 	of 	accounts
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receivable, and denials or underpayments of claims; serving as the subject
matter expert and primary resource for all hospital and professional billing
processes; 	and 	tracking 	and 	communicating 	performance 	data 	to
leadership.
(Docs. 39, ¶¶ 4 & 5; 40-6).
When Walker started in the position, he claims that his job duties were not as
advertised. “[H]e worked entirely in the back end of the revenue cycle, and thus did not
handle 	compliance 	or 	patient 	safety, 	prepare 	budgets, 	submit 	claims, 	supervise
employees who submitted claims, or ensure claims were accurate and complete.” (Doc.
41, ¶ 5). However, his performance evaluation about a year into his tenure included the
same the written job description; it had not changed to reflect Walker’s professed on-the-
ground reality. (Doc. 41-4, pp. 2–3). During his employment, Walker struggled with
implementing the new records and billing system that WRMC had transitioned to before
he was hired. (Doc. 41-1, 20:4–21:16). He claims that he was never disciplined, (Doc. 41-
1, 23:24–24:20), but his annual performance evaluation reflects a mix of positive and
negative feedback, see Doc. 41-4, pp. 4–7 (describing Walker as “dedicated” but
cautioning against “alienating the persons on the receiving end of the communication”;
noting “a challenging year within our Business Office metrics” in which Walker “had some
positive gains”; and rating Walker 3/5 on two metrics, 4/5 on two metrics, and 5/5 on one
metric). He also failed to controvert Moser’s and Eckels’s criticisms of his performance,
instead attributing issues with the Business Office to causes outside his control. See Local
Rule 56.1(c) (“All material facts set forth in the statement [of fact] filed by the moving party
. . . shall be deemed admitted unless controverted by the statement filed by the non-
moving party . . . .”); Doc. 41, ¶¶ 10–14, 22–24.
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In April of 2022, WRMC hired an outside consultant, Huron Consulting Group, to
evaluate the business office. Moser and Eckels claim Huron advised them that Walker
was 	“not 	performing 	successfully 	in 	his 	position” 	and 	“would 	not 	be 	capable 	of
accomplishing the hospital’s objectives for his position.” (Doc. 39, ¶ 19). However, no
reports, contemporaneous writings, or statements from anyone at Huron appear in the
record, although its investigation is discussed by Moser and Eckels in their declarations
and by Walker in his deposition. See Docs. 40-4, ¶¶ 17–19; 40-5, ¶¶ 13–15; 41-1, 28:17–
30:22.
In November of 2022, shortly before Walker’s separation, a patient wrote a letter
complaining about a significant billing error. (Doc. 42-1). Walker was instructed to address
the issue and write a letter apologizing to the patient. (Doc. 41, ¶¶ 22–23). Walker wrote
the letter as instructed but, by his own admission, passed the issue along to another
WRMC employee to address, believing that the error was her responsibility, not his. (Doc.
41, ¶ 24). According to Eckels, when Walker “failed to adequately [address the issue] he
was given the option to resign or be terminated.” (Doc. 40-4, ¶ 22). According to Walker,
“Eckels told Plaintiff they were going in another direction.” Id. ¶ 25; Doc. 41-1, 34:3–5.
Walker does not allege that any comments about his age were made during his
employment or as justification for his threatened termination. (Doc. 41, ¶ 30).
Instead, Walker filed this suit after, he alleges, his caseworker at the Arkansas
Division of Workforce Services told him that WRMC discharged other employees over
age 50. (Doc. 40-1, 39:20–40:3). His caseworker, Katherine Williams, denies making that
statement or even having access to information that would allow her to make that
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statement. (Doc. 40-2, 15:17–16:14). There is no other evidence in the record connecting
Walker’s age to his termination.
After Walker resigned, WRMC restructured its Central Billing Office and hired
Thomas Merritt, age 52, as the Executive Director of Central Billing Office. (Doc. 41, ¶¶
27–29). A couple of months prior to Walker’s resignation, Moser announced she was
leaving her position. (Doc. 42-2). Walker alleges that Merritt was hired to replace Moser,
not Walker. (Doc. 41, ¶ 30). Walker further alleges that he has “identified a younger
similarly situated comparator, Rebecca McDade, WRMC’s Director of Revenue Integrity.”
Id. He does not allege that his job duties were transferred to McDade, only that she was
“at or younger than 40 years old,” was allowed to remain in her position, and handled
some of the job duties included in Walker’s written job description that he denied actual
responsibility for. (Docs. 41, ¶ 27; 41-2, p. 7).
II. LEGAL STANDARD
A party moving for summary judgment must establish both the absence of a
genuine dispute of material fact and entitlement to judgment as a matter of law. See Fed.
R. Civ. P. 56. The Court must review the facts in the light most favorable to the nonmoving
party and give that party the benefit of any inferences that can be drawn from those facts.
Canada v. Union Elec. Co., 135 F.3d 1211, 1212–13 (8th Cir. 1997). If the moving party
meets its burden, “the nonmoving party must then come forward with specific facts
showing that there is a genuine issue for trial.” Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 587 (1986) (quotations omitted). “Where the record taken as a whole
could not lead a rational trier of fact to find for the non-moving party, there is no ‘genuine
issue for trial.’” Id.
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“To be material, a fact must ‘affect the outcome of the suit under the governing
law.’” Torgerson v. City of Rochester, 643 F.3d 1031, 1052 (8th Cir. 2011) (quoting
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). “‘The mere existence of a
scintilla of evidence in support of the [nonmoving party’s] position will be insufficient’ to
survive summary judgment.” Anderson v. Durham D&M, L.L.C., 606 F.3d 513, 518 (8th
Cir. 2010) (quoting Liberty Lobby, 477 U.S. at 252). The nonmoving party must instead
produce sufficient evidence “such that a reasonable jury could return a verdict” in their
favor. Allison v. Flexway Trucking, Inc., 28 F.3d 64, 66 (8th Cir. 1994) (quoting Liberty
Lobby, 477 U.S. at 248 (1986)).
“An age discrimination plaintiff may survive the defendant's motion for summary
judgment either by setting out direct evidence of discrimination or by creating an inference
of discrimination under the McDonnell Douglas burden-shifting framework.” Ramlet v. E.F.
Johnson Co., 507 F.3d 1149, 1152 (8th Cir. 2007) (citation omitted). Without direct
evidence 	of 	age 	discrimination,1 	Walker 	can 	establish 	a 	prima 	facie 	case 	by
demonstrating that: (1) he is over 40 years old; (2) he met the applicable job qualifications;
(3) he suffered an adverse employment action; and (4) he was replaced by someone
sufficiently younger to permit an inference of age discrimination. Ramlet v. E.F. Johnson
Co., 507 F.3d 1149, 1153 (8th Cir. 2007). “In reduction in force (RIF) cases where the
plaintiff's duties are either eliminated or redistributed to remaining workers, the fourth
element is satisfied by showing that age was a factor in the termination.” Id. An employee
has the burden to establish that age was the “but for” cause of the adverse employment
1 WRMC argues that Walker has no direct evidence of age discrimination, and Walker
does not disagree with, or even address, this argument in his Response.
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action. 	Gross v. FBL Financial Services, Inc., 557 U.S. 165, 176-78 (2009). 	The
employee retains this burden of persuasion throughout the McDonnell Douglas burden-
shifting framework. Id. at p. 180.
III. DISCUSSION
There is no dispute that Walker is over 40 or that he suffered an adverse
employment action. Instead, WRMC argues that Walker failed to make out a prima facie
case because the evidence shows that he did not meet applicable job qualifications and
he has failed to produce any evidence permitting an inference that age was a factor in his
separation.
a. Walker’s Performance and WRMC’s Legitimate Expectations
In 	his 	Response, 	Walker 	does 	not 	argue 	that 	he 	met 	the 	applicable 	job
qualifications, but instead argues that WRMC’s performance-based reasons for his
termination were pretextual. (Doc. 43, pp. 3–6). Nonetheless, the Court will examine his
pretext argument where relevant to counter WRMC’s argument that Walker did not meet
its legitimate expectations.
To satisfy this element of his prima facie case, Walker must demonstrate that he
“was 	actually 	performing 	h[is] 	job 	at 	a 	level 	that 	met 	h[is] 	employer’s 	legitimate
expectations.” Whitley v. Peer Rev. Sys., Inc., 221 F.3d 1053, 1055 (8th Cir. 2000),
abrogated on other grounds by Torgerson v. City of Rochester, 643 F.3d 1031 (8th Cir.
2011). Past performance evaluations may not “in themselves establish that [an employee]
was meeting [their employer]’s legitimate employment expectations at the time” of the
adverse employment action when those evaluations are dated. Fisher v. Pharmacia &
Upjohn, 225 F.3d 915, 920–21 (8th Cir. 2000) (citing Miller v. Citizens Sec. Group, Inc.,
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116 F.3d 343, 346 (8th Cir.1997)). Here, the singular performance evaluation during
Walker’s tenure occurred eleven months after he started and eleven months before his
termination.
Moreover, the parts2 of this evaluation that Walker is using to support his professed
adequate performance show that, even eleven months before his termination, Walker was
struggling with effective communication. Moser noted that Walker should “[w]ork on
reducing risk of alienating the persons on the receiving end of the communication.” (Doc.
41-4, p. 4). This feedback is in line with Moser’s and Eckels’s statements that Walker “did
not interact well with his colleagues” and therefore required repeated counseling “on his
leadership style” and “temperament.” (Docs. 40-4, ¶¶ 20–21; 40-5, ¶ 12). “[A]n employer
may legitimately place equal or greater importance on leadership and people skills [than
relevant subject-matter skills].” Ziegler v. Beverly Enterprises-Minnesota, Inc., 133 F.3d
671, 675 (8th Cir. 1998).
With respect to Moser’s and Eckels’s other statements regarding Walker’s poor
performance, 	i.e., 	his 	overarching 	failure 	to 	take 	responsibility 	for 	“overall 	billing
operations,” see Docs. 40-4, ¶¶ 10–14; 40-5, ¶¶ 8–12, Walker presents no evidence apart
from his eleven-month-old performance evaluation to controvert their assertions and,
more tellingly, fails to contradict them in his Response to WRMC’s Statement of Facts.
See Doc. 41, ¶¶ 10–11, 13–14. 	Instead, he points to the lack of contemporaneous
documentary evidence of poor performance, his own deposition testimony that he
“couldn’t recall any discussion about performance issue or deficiencies during his
2 The copy of Walker’s 2021 evaluation that is in the record was submitted by Walker’s
counsel and appears to have pages missing. WRMC did not include a copy of the
evaluation in its summary judgment exhibits.
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employment,” and circumstances or personnel that were more responsible for Billing
Office failures than he was. (Doc. 41, pp. 3–6). This final argument for the adequacy of
his performance does not rebut Moser’s and Eckels’s contentions that Walker failed to
take ownership of Billing Office operations—it reinforces them.
WRMC’s “final straw” demonstrates this point. The parties agree that in November,
shortly before he was fired, Walker was instructed to deal with a patient complaint and
write a letter of apology. Walker argues that the complaint was not his fault or his
responsibility, although he does not dispute that he was instructed to deal with it:
Again, while Defendant attempts to ascribe the reason for this complaint to
Plaintiff, a review of the complaint itself and emails surrounding the
complaint show that the issue originated because hospital staff failed to add
the patient’s supplemental insurance during registration for his visits, which
Plaintiff explained in his letter to the patient. This error fell under the front-
end revenue cycle, which was overseen not by Plaintiff but by another
employee, Shelley Burch, and Plaintiff forwarded this issue to her to
address.
Id. at 5–6. Here, too, Walker, by his own admission, demonstrates the “insubordination,”
“failure to follow through with assigned tasks,” and “inadequate[ ] follow up and
response[ ] to patient complaints” that his supervisors complained of by shifting blame
and responsibility elsewhere. (Doc. 40-4, ¶ 14). No reasonable jury could infer from
Walker’s own deposition testimony that he was meeting WRMC’s expectation that he take
responsibility for Billing Office operations generally.
To the extent that WRMC relies on the Huron investigation to argue that Walker
was not meeting expectations, the Court does not consider those arguments because the
only record evidence about the outcome of the investigation are Moser’s and Eckels’s
second-hand statements. However, Walker admits that Huron was brought in to deal with
issues in the Billing Office, which lends further support to WRMC’s claim that the Billing
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Office was experiencing issues under Walker’s leadership. (Doc. 40-1, 28:17–30:19). In
total, none of Walker’s evidence creates a genuine issue of material fact as to whether
he was meeting WRMC’s legitimate expectations at the time he was separated. His
statement that he does not recall being disciplined while at the same time acknowledging
the failures of his department and shifting blame for them to others does not permit an
inference that he was meeting WRMC’s expectations. See Miller v. Citizens Sec. Grp.,
Inc., 116 F.3d 343, 346 (8th Cir. 1997). And his “attempt to justify his failure [to meet the
employer's requirements] does not create a genuine issue as to the legitimacy of the
requirement.” Riley v. Lance, Inc., 518 F.3d 996, 1002 (8th Cir.2008); cf. Haigh v. Gelita
USA, Inc., 632 F.3d 464, 470 (8th Cir. 2011) (“[The plaintiff]'s justifications for his failure
to meet [his employer]'s expectations are not evidence that creates a genuine issue of
fact as to whether [his employer]'s reasons were mere pretext.”).
b. Evidence Supporting an Inference of Discrimination
Even if the Court were to disregard Moser’s and Eckels’s statements and Walker’s
admissions and conclude that Walker was meeting WRMC’s legitimate expectations, he
has nevertheless failed to present evidence that supports a finding in his favor on the
fourth element, regardless of how the Court defines that element.3 The Eighth Circuit has
“noted it is unlikely a supervisor would hire an older employee and then discriminate on
the basis of age, and such evidence creates a presumption against discrimination.” Haigh
v. Gelita USA, Inc., 632 F.3d 464, 470 (8th Cir. 2011) (quoting Fitzgerald v. Action, Inc.,
521 F.3d 867, 877 (8th Cir.2008)). Here, Walker was hired by the same supervisors at 52
3 Because Walker’s claim fails under either construction of the fourth element, there is no
material fact issue of whether Merritt was Walker’s replacement or whether his duties
were instead redistributed between Merritt and others.
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that fired him at 54, so there is “a presumption against any age discrimination in this case,”
and Walker has “failed to rebut with any evidence permitting a reasonable inference of
discriminatory animus.” Id.
WRMC 	argues 	that 	the 	typical 	fourth 	element—replacement 	by 	someone
sufficiently younger to permit an inference of age discrimination—should apply. Under
that standard, Walker has failed to make out this element because his replacement,
Thomas Merritt, was 52, just two years younger than Walker, which is not sufficiently
younger to support an inference of age discrimination. Lewis v. St. Cloud State Univ., 467
F.3d 1133, 1136 (8th Cir. 2006) (“[A] five-year age difference is insufficient to establish a
prima facie case . . . .” (citing Schiltz v. Burlington Northern R.R., 115 F.3d 1407, 1413
(8th Cir.1997))).
In response, Walker argues that Merritt was not his replacement, but instead
replaced Moser. Therefore, Walker argues that the reduction-in-force fourth element—
some showing that age was a factor in the termination—should apply. Walker points to
his younger coworker, Rebecca McDade, and argues that a reasonable jury could infer
age was a factor in Walker’s termination because “McDade was younger than Plaintiff
and was not terminated when Plaintiff was, showing she was more favorably treated as
she retained her employment while Plaintiff was forced to resign or face termination.”
(Doc. 43, p. 8). Walker asserts that McDade was similarly situated because she had a
“similar title and the same supervisor” and “performed job duties included in the written
description of Plaintiff’s position.” Id.
Even assuming that the reduction-in-force standard applies, Walker has submitted
no evidence related to McDade’s performance, positive or negative, so the Court cannot
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find that she is similarly situated to Walker. See Wilcox v. State Farm Mut. Auto. Ins. Co.,
253 F.3d 1069, 1071 (8th Cir. 2001) (finding terminated employee and younger employee
in same position not similarly situated where the terminated employee had “performance
difficulties” that the younger employee did not have); Miller v. Citizens Sec. Grp., Inc., 116
F.3d 343, 347–48 (8th Cir. 1997) (finding that “no reasonable fact finder could draw an
inference of discrimination” where the plaintiff’s only proof of similar performance was the
affidavit of someone who “reviewed a small fraction” of the employer’s files to evaluate
the plaintiff’s and the younger comparator’s performance). Thus, there is no basis for a
jury to infer that age was a but-for reason that explains why Walker was terminated while
McDade was not.
IV. CONCLUSION
Because Walker has failed to present direct evidence or make out a prima facie
case of discrimination, his ADEA claim cannot survive summary judgment. On this record,
taken as a whole, no reasonable jury could infer that age was a reason for Walker’s
separation from WRMC. Therefore, IT IS HEREBY ORDERED that WRMC’s Motion for
Summary Judgment (Doc. 38) is GRANTED. Judgment will enter contemporaneously
with this Opinion, and the case is DISMISSED.
IT IS SO ORDERED on this 10th day of January, 2025.
________________________________
TIMOTHY L. BROOKS
UNITED STATES DISTRICT JUDGE
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