United States District Court, D. Maryland, Southern Division
GEORGE JARROD HAZEL, District Judge.
This is an age discrimination case brought by Carolyn Avant ("Avant") against her former employer, Southern Maryland Hospital, Inc. ("the Hospital"), for purported violations of the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. §§ 621-634, et seq., and the Maryland Fair Employment Practices Act, § 20-606, Md.Code Ann., State Gov't. Avant also alleges that her rights under the Family Medical Leave Act, ("FMLA"), 29 U.S.C.A. §§ 2601-2654, were violated. This Memorandum Opinion and accompanying Order address the Hospital's Motion for Summary Judgment, ECF No. 42. A hearing is not necessary. See Loc. R. 105.6 (Md.). For the reasons stated below, the Hospital's Motion for Summary Judgment is GRANTED. Avant's complaint is therefore dismissed with prejudice.
Avant was hired by the Hospital on August 7, 1995 as Manager of the Hospital's Central Supply Department. See ECF No. 52-4 at 8. In 2008, Avant's job title was changed to Director of Central Supply Department. See id. In August 2011, Lynn Bode ("Bode") was hired as the Hospital's Administrative Director of Surgical Services and became Avant's supervisor. See ECF No. 44 at ¶ 2; see also ECF No. 42-1 at 15.
The Central Sterile Supply Department maintains and processes the Hospital's supply of patient care equipment and sterile instruments, including the collection, decontamination, assembly, sterilization, high-level disinfection, and distribution of all instruments and equipment to various units in the Hospital, including those used in surgery. See ECF No. 44 at 2-3 at ¶¶ 8-9, 11. As the Director of the Central Supply Department, Avant was responsible for "direct[ing] and coordinat[ing] activities related to the preparation, distribution and control of sterile/nonsterile supplies, equipment and instrumentation throughout Perioperative Services and the units within the hospital." Id. at 12. Specifically, Avant was responsible for "overseeing the sterilization of surgical instruments, providing leadership management to Central Supply Department technicians ("CS Techs")..., identifying CS Techs' learning needs and recommending educational methods..., providing verbal and/or written feedback to [Bode], and reporting problems concerning Central Supply Department employees to [Bode]." ECF No. 57 at 3.
In addition to her responsibility for supervising the CS Techs, it is undisputed that Avant also had some oversight responsibilities for the Instrument Technicians staffed in the Operating Room. As early as 2008, Avant's previous supervisors indicated in her performance evaluations their desire for her to "[a]ssume responsibility for the Instrument Aides in the [Operating Room]." ECF No. 42-5 at 125. By the time Bode became Avant's supervisor, this responsibility was clearly expressed to her. In fact, at Avant's deposition, she testified that shortly after Bode was hired, the two of them had a discussion during which Bode informed her that she was responsible for the performance of the Instrument Technicians in the Operating Room. See id. at 46-47 at 104:12-105:12. Indeed, when issues involving Operating Room Instrument Technicians would arise, Bode would contact Avant for explanation. See ECF No. 44 at 17. Furthermore, Avant was responsible for "complet[ing] the OR Instrument Technicians' performance evaluations...." ECF No. 57 at 4; see also ECF No. 42-5 at 20 at 51:9-14.
Shortly after Bode was hired, she became aware of patient safety issues relating to the contamination of surgical instrumentation and an increase in patient infections. See ECF No. 44 at ¶ 5; see also ECF No. 42-6 at 17:4-19:17. Specifically, sets of instruments used in orthopedic surgical procedures that were supposed to have been sterilized were found to be contaminated with bio-burden ( i.e., human tissue and body fluids). See ECF No. 42-6 at 19:18-20:12; see also ECF No. 44 at ¶ 6. In addition, upon arrival, Bode learned that the Hospital had had eight surgical site infections in orthopedic joint replacement cases from January 2011 to August 2011, which was above its normal rates. See ECF No. 42-6 at 17:4-19:17; see also ECF No. 44 at ¶ 6. As a result of the increased number of infections, the Hospital lost a significant amount of orthopedic surgical business. See ECF No. 42-6 at 125:1-126:5; see also ECF No. 44 at ¶ 6. In fact, Bode received complaints from surgeons who had decided to take their surgical business away from the Hospital due to the infection problem. See ECF No. 44 at ¶ 6. Bode attributed the high infection rates for orthopedic surgeries to the Operating Room Instrument Technicians' lack of training and failure to follow updated standards and recommendations pertaining to instrument reprocessing. See ECF No. 42-6 at 11 at 32:6-35:7.
In recognition of the increased infection rate, the Hospital, in January 2012, engaged the services of a company known as STERIS to conduct an initial assessment of the Central Supply Department's procedures. See ECF No. 44 at 5 at ¶ 13. On February 6, 2012, STERIS provided the Hospital with its initial assessment. In addition to its concerns about the physical layout of the Operating Room's decontamination area, STERIS found that the Operating Room Instrument Technicians and CS Techs did not understand the distinction between dirty and clean areas and were not taking off their dirty gloves before assembling the cleaned instruments for sterilization. See id. at ¶¶ 13-14; see also ECF No. 44 at 18-32. Based on this assessment, Bode decided that an in-depth review of the functions of the Central Sterile Supply Department was necessary in order to fully understand the extent and severity of the issues identified by STERIS. See ECF No. 44 at 6 at ¶ 15. The Hospital therefore engaged SterilTek, the professional consulting division of STERIS, to conduct a more comprehensive, two-week assessment of the Central Sterile Supply Department. See id.
In March 2012, prior to the completion of the two-week SterilTek assessment, but after the completion of the initial STERIS review, Avant applied for, and received, FMLA leave in order to care for her ill son. See ECF No. 2 at ¶ 19. Avant began to take her FMLA leave in early March 2012. See id. In May 2012, while Avant was still on leave, SterilTek began its review of the Central Sterile Supply Department. At the end of SterilTek's assessment, it produced an 89-page report (the "SterilTek Report") detailing the observed deficiencies of the Central Sterile Supply Department. Specifically, the SterilTek Report noted that there were "[m]ajor areas of non-compliance with industry standards, regulations, and best practices" and that the Hospital "[m]ust immediately correct sterilization issues and then improve decontamination practices." ECF No. 45 at 13. Furthermore, the assessment concluded that there was a "total lack of knowledge and management of the sterilization processes." Id.
As it related to Avant specifically, the SterilTek Report concluded that she  "[l]ack[ed] [an] understanding and ability to implement process controls to ensure timely and quality performance by the staff";  "[l]ack[ed] [an] understanding that department performance and compliance requires continued attention to detail and follow-up";  "[l]ack[ed] [an] understanding or inability to implement basic sterile processing requirements within sterilization thus resulting in major patient care violations";  "[l]ack[ed]  follow through in monitoring and completing Process Improvement initiatives assigned by direct supervisor"; and  "[l]ack[ed]  any active training and education program outside of new hire learning by shadowing other staff." Id. at 71. Based on these findings, the SterilTek Report recommended that the Hospital "take corrective action to remedy this situation as soon as possible." Id.
Additionally, following the release of the SterilTek Report, John Kimsey ("Kimsey"), the SterilTek executive who drafted the report, sent a letter to Bode on May 18, 2012 that provided "additional observations and comments pertaining to [the Central Sterile Supply Department's] performance and leadership abilities." Id. at 99. Specifically, Kimsey observed that "[i]n ten years of performing assessments and working in over 200 hospitals nationwide, [the Hospital's Central Sterile Supply Department] rank[ed] as the worst department we have seen and  received the lowest assessment rankings and scores I have personally ever seen." Id. Kimsey went on to say that he had "never seen a [Central Sterile Supply Department] score in the red in Decontamination, Assembly, and Sterilization" and that the department "was absolutely unaware of the regulations, best practices, or basic monitoring that [was] required." Id. Finally, Kimsey expressed his "lack of faith in [the Hospital's] current leadership team consisting of your CS Director [ i.e. Avant] and 2nd Shift Supervisor." Id.
Based on these remarks, as well as the findings contained in the SterilTek Report, Bode recommended to her immediate supervisor and to the President of the Hospital that Avant be relieved of her duties. They agreed. Therefore, on May 24, 2012, Avant, while still on FMLA leave, was summoned to the Hospital, whereupon she was given the option of resigning in lieu of termination. See ECF No. 57 at 21. Avant accepted. See id. At the time of her forced resignation, Avant was 67 years old. See id. at 1.
After pursuing her administrative remedies, Avant filed this lawsuit on September 19, 2013 in the Circuit Court of Maryland for Prince George's County claiming that she was discriminated against based on her age, as well as interference with, and retaliation for, exercising her FMLA rights. See ECF No. 1; see also ECF No. 2. On October 10, 2013, the Hospital removed the case to this Court. See ECF No. 1. Following the completion of discovery, the Hospital filed a motion for summary judgment. See ECF No. 42. That motion is now fully briefed and is presently before the Court. For the reasons discussed more fully below, the Court will GRANT the Hospital's motion.
II. STANDARD OF REVIEW
Summary judgment is proper if there are no issues of material fact and the moving party is entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Francis v. Booz, Allen & Hamilton, Inc., 452 F.3d 299, 302 (4th Cir. 2006). A material fact is one that "might affect the outcome of the suit under the governing law." Spriggs v. Diamond Auto Glass, 242 F.3d 179, 183 (4th Cir. 2001) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). A dispute of material fact is only "genuine" if sufficient evidence favoring the non-moving party exists for the trier of fact to return a verdict for that party. Anderson, 477 U.S. at 248-49. However, the nonmoving party "cannot create a genuine issue of material fact through mere speculation or the building of one inference upon another." Beale v. Hardy, 769 F.2d 213, 214 (4th Cir. 1986). The Court may only rely on facts supported in the record, not simply assertions in the pleadings, in order to fulfill its "affirmative obligation... to prevent factually unsupported claims or defenses' from proceeding to trial." Felty v. Grave-Humphreys Co., 818 F.2d 1126, 1128 (4th Cir. 1987) When ruling on a motion for summary judgment, "[t]he evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor." Anderson, 477 U.S. at 255.
A. Age Discrimination in Employment Act
Avant contends that she was discriminated against on the basis of her age in violation of the ADEA when she was forced to resign on May 24, 2012. See ECF No. 2 at ¶¶ 29-34.
Section 4(a)(1) of the ADEA, 29 U.S.C. § 623(a)(1), provides, in pertinent part: "It shall be unlawful for an employer... to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's age." In order to establish a cause of action under the ADEA, "a plaintiff must demonstrate that but for the employer's motive to discriminate against the plaintiff on the basis of age, the ...