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ADEA claim fails after “sham affidavit” ruling

Rebecca M. Lightle//March 19, 2018

ADEA claim fails after “sham affidavit” ruling

Rebecca M. Lightle//March 19, 2018//

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A federal district judge granted defendants summary judgment after striking the plaintiff’s post-deposition declaration. The court found “egregious” inconsistencies between the declaration and prior deposition testimony.


Plaintiff Kimberly S. Moore worked as a hospital admissions clerk since 1991. Defendant Mountain States Health Alliance, which operated her hospital, terminated her employment in 2014, when she was 54 years old.

All admissions clerks had the essential job duties to register patients quickly, accurately, and efficiently and present the hospital in a positive light during interactions with the public. They were also required to report any malfunctioning equipment.

Over the years, Moore had been criticized by supervisors for having an unprofessional attitude, receiving written warnings in 2006 and 2007. The hospital disciplined Moore on multiple occasions in 2013 and 2014 for unprofessional behavior. Moore personally rated herself as needing improvement in various aspects of her 2013 final performance evaluation.

On December 19, 2013, a counseling report advised Moore that her next disciplinary infraction would result in suspension. A month later, a patient complained about her, and she was suspended for three days. Subsequently, the hospital’s CEO 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 the CEO would treat her unfairly or worse than a younger person.

Three subsequent incidents were the basis for Moore’s ultimate termination: (1) a patient complaint about her attitude; (2) a coworker’s report that Moore had clearly said “bullshit” in a hallway within earshot of patients and visitors; and (3) failure to report a broken scanner. As a result of these infractions, the hospital’s Patient Access Manager, Timothy Cheek, recommended Moore’s termination. After a hearing, the CEO made the final decision to terminate her employment.

Moore brought this action asserting age discrimination. Mountain States has moved to strike a post-deposition declaration submitted by Moore; it has also moved for summary judgment.

“Sham affidavit”

Mountain States moves to strike Moore’s declaration on the ground that it impermissibly contradicts her sworn deposition testimony. She responds that she only remembered certain events after reviewing email and other discovery materials.

Moore’s declaration should be stricken under the sham-affidavit rule because it includes numerous statements that directly contradict her earlier interrogatory answers and deposition testimony, without satisfactory explanation.

For example, during her deposition, Moore testified that Cheek had “harassed me all the time,” but the only example she could think of was when he told her “you are walking on a thin line.” The only negative remarks about her age that she could relay at the time were comments that Moore made more money and had better insurance than others “because I have been here a long time.”

By contrast, Moore’s later declaration asserted that Cheek told her that she needed to quit because it was common for women her age to have mental issues, that she was “too old to know how a mother feels,” and that she didn’t have the face they wanted to project the hospital’s fresh new image. She also declared that Cheek reprimanded her for not typing fast enough, muttering, “old dogs new tricks.”

In addition, Moore said in her deposition that she hadn’t really thought about when she would retire, but estimated she would have retired at about age 65 — nine years past her separation. But in her declaration, she asserted that she was 10 months short of retiring.

Moore’s case is not complicated and, more than anyone, she knew the facts on which her claim was based. She was also represented by experienced counsel who certainly prepared her for her deposition. It would be unfair to the opposing parties and destructive of the court’s duty to secure the just, speedy, and inexpensive resolution of this case if Moore’s declaration were not stricken.


Summary judgment is not a disfavored procedural shortcut, but rather an important mechanism for weeding out claims and defenses that have no factual basis. It is the trial judge’s affirmative obligation to prevent factually unsupported claims and defenses from proceeding to trial.

No comments constituting direct evidence of age discrimination are present in Moore’s case. She testified that, while she was not disciplined over it, Cheek had complained of her speed in registering patients as compared to other admission clerks. Moore admitted she usually did not meet the hospital’s goal of patient registration within eight minutes. In addition, she testified that Cheek commented on her compensation and insurance levels, based on her years of service. But none of these comments constitute direct evidence of discrimination.

In the absence of direct evidence, Moore cannot establish a prima facie case of age discrimination. She has not shown evidence that she was meeting her employer’s legitimate expectations at the time of her termination. The documented history of her disciplinary problems overcomes her own perceptions of her conduct. Moreover, the hospital had no choice of her replacement, in light of the mandatory seniority system imposed by its collective bargaining agreement.

Finally, Mountain States has shown a legitimate, nondiscriminatory reason for termination. She was warned that further infractions would result in termination, and Moore admits that, thereafter, the hospital did receive an additional patient complaint about her attitude and from a coworker. She also admitted her failure to report broken equipment as required.

While Moore disputes the substance of the complaints, she has not shown that these documented reasons for her termination are pretextual, and thus her claim of discrimination must fail.

Defendants’ motions to strike and for summary judgment granted.

Moore v. Mt. States Health Alliance, Case No. 2:16cv14, Mar. 12, 2018. WDVA at Big Stone Gap (Jones). VLW No. 018-3-071, 14 pp.

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