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Norton v. PHC-Elko, Inc.

United States District Court, D. Nevada

September 16, 2014

ROBERT R. NORTON, Plaintiff,
PHC-ELKO, INC. a domestic corporation, doing business as NORTHEASTERN NEVADA REGIONAL HOSPITAL, Defendant

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For Robert R. Norton, Plaintiff: Julie Cavanaugh-Bill, Cavanaugh-Bill Law Offices, LLC, Elko, NV.

For Phc-Elko, Inc., agent of Northeastern Nevada Regional Hospital, Defendant: Anthony L. Hall, LEAD ATTORNEY, Holland and Hart LLP, Reno, NV; Katherine Coe Heard, Mark W. Peters, LEAD ATTORNEYS, Waller Lansden Dortch & Davis, LLP, Nashville, TN.

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ROBERT C. JONES, United States District Judge.

This case was brought by a private employee who alleges that he was terminated

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in violation of the Americans with Disabilities Act (" ADA" ), the Age Discrimination in Employment Act (" ADEA" ), and a contractual agreement between the parties. Before the Court is Defendant's Motion for Summary Judgment (ECF No. 34), Plaintiff's Opposition to that Motion (ECF No. 41), and Defendant's Reply to Plaintiff's Opposition (ECF No. 46). For the reasons that follow, Defendant's Motion is GRANTED.


The disorganized nature of Plaintiff's Opposition created a difficulty in determining Plaintiff's factual contentions. Nevertheless, the Court finds the following facts to be undisputed by the parties. Plaintiff worked as the Dietary Director at Northeastern Nevada Regional Hospital (" Defendant" or " the Hospital" ) for eleven years before being terminated. (Norton Dep. 10:22-11:1, 16:14-16, ECF No. 34-1 Ex. 1). Plaintiff was approximately sixty years old at that time. ( Id. at 18:18-19). During Plaintiff's employment at the Hospital, he underwent a number of back surgeries ( Id. at 9:3-15, 14:25-15:13). These surgeries required him to take leave from work and caused him complications at work since they limited the amount of weight he could lift. ( Id. at 7-14; Miller Dep. 43:9-15, ECF No. 41-5). Plaintiff still continued to work to the best of his abilities. (Norton Dep. 17:8-17). A few months prior to Plaintiff's termination that is the subject of this lawsuit, Plaintiff underwent surgery to repair a torn rotator cuff. (Miller Dep. 43:9-15.) The surgery required Plaintiff's absence from the Hospital for an unstated amount of time and that he attend physical therapy, which he did at the Hospital. (Norton Dep. 63:11-15).

Directors, such as Plaintiff, were given authorization to access and make necessary adjustments on the Hospital's Kronos system, the program utilized by the Hospital to track employees' work time. (Trollope Decl. ¶ ¶ 9-10, ECF No. 34-3). To " clock in" or " clock out" (known as a " punch" ), an employee would swipe her identification badge at a Kronos station and the program would record the employee's name, the time, and the action. ( Id. at 9). A director might then make a subsequent adjustment, for example, to add a punch if an employee failed to swipe his or her badge, to indicate that an employee was using paid time off, or to input that an employee worked in a supervisory capacity for a shift. ( Id. at 16). Kronos tracked any changes made to an employee's time by recording the unique user identification assigned to authorized managers. ( Id. at 10).

In early February 2012, Marco Sanchez (" Sanchez" ), an employee in Plaintiff's department, reported to Angela Chaffin (" Chaffin" ), the Hospital's Human Resources (" HR" ) Director, that he believed Plaintiff was altering Sanchez's punch times and causing his paychecks to be consistently lower than he anticipated. (Chaffin Decl. ¶ 4, ECF No. 34-2). Chaffin took this accusation to Grant Trollope (" Trollope" ), the Hospital's Chief Financial Officer. ( Id. ¶ ¶ 5-7). Chaffin and Trollope informed Gene Miller (" Miller" ), the Chief Executive Officer of the Hospital, about the allegations against Plaintiff and their intent to investigate Sanchez's claim. (Trollope Decl. ¶ ¶ 6-7). Plaintiff was then suspended without pay pending the outcome of the investigation. (Norton Dep. 102:23-103:7).

Trollope ran an audit report in Kronos searching for Plaintiff's edits on time records of all employees in Plaintiff's department for a three-year period. (Trollope Decl. ¶ ¶ 11-12). The result of the audit showed that Plaintiff and many other Hospital

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supervisors consistently made adjustments to employees' time. ( Id. ¶ 15). According to Trollope, Plaintiff's changes caused particular concern because they were not accompanied with the usual reasons for these types of adjustments. ( Id. ¶ 16). Rather than just adding a punch that an employee had missed, Plaintiff was modifying the time at which punches occurred, which Trollope believed was illegal and violated Hospital policy. ( Id. ¶ ¶ 15-16). This was also inconsistent with the changes made by other supervisors. ( Id. ¶ 16). Trollope thought this behavior manifested Plaintiff's desire to cut labor costs in his department by reducing the overall time worked by employees. ( Id. ¶ ¶ 15-16).

On February 22, 2012, Miller and Chaffin met with Plaintiff to discuss the findings of Trollope's audit. (Norton Dep. 127:16-25). Plaintiff acknowledged that he indeed routinely adjusted employees' time and that the adjustments were necessary to correct the time records to reflect the hours Plaintiff believed the employees actually worked based on his personal observations and the shift assigned to the employee. ( Id. at 130:3-15). Miller and Chaffin doubted whether Plaintiff's time changes were actually appropriate. For instance, the Kronos record showed adjustments made by Plaintiff when he was on leave of absence and could not personally observe his employees. (Miller Decl. ¶ 10, ECF No. 34-4; Chaffin Decl. ¶ 19). Miller shortly thereafter terminated Plaintiff, citing that the decision was based on the information gathered by Trollope and Plaintiff's acknowledgment that he routinely made changes to employee's recorded work time. (Miller Decl. ¶ ¶ 10-13). The Hospital then paid $5,655.10 to the nine current Dietary Department employees whose times Plaintiff had adjusted, which accounted for more than 400 work hours. (Trollope Decl. ¶ 20; Chaffin Decl. ¶ 22; Miller Decl. ¶ 14).

After his termination, Plaintiff filed a charge against the Hospital with the Equal Employment Opportunity Commission (" EEOC" ) claiming he was fired because of his age and health condition. (Charge of Discrimination, ECF No. 34-1 Ex.16). He alleged that the time adjustment issue was just a pretext that Defendant used to justify his termination. ( Id. ). With the EEOC's approval, Plaintiff sued Defendant for discrimination based on his age and disability. ( See Compl., ECF No. 1). Defendant moves for summary judgment on all claims.


A principle purpose of the summary judgment rule is to " isolate and dispose of factually unsupported claims or defenses." Celotex Corp. v. Catrett, 477 U.S. 317, 323-24, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). A court grants summary judgment only if " the movant shows that there is no genuine issue as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). In making this determination, the court " must draw all reasonable inferences supported by the evidence in favor of the non-moving party." Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1061 (9th Cir. 2002). " [T]his standard provides that the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Rather, only genuine issues of material facts are relevant to the summary judgment analysis. A fact is material if it " might affect the outcome of the suit under the governing law." Id. at 248. " The moving party bears the initial burden of establishing the absence of a genuine issue of material

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fact." Fairbank v. Wunderman Cato Johnson, 212 F.3d 528, 531 (9th Cir. 2000). The burden is met by demonstrating to the court " that there is an absence of evidence to support the nonmoving party's case." Celotex Corp., 477 U.S. at 325. This is done by citing to depositions, documents, electronically stored information, affidavits or declarations, stipulations, admissions, interrogatory answers, or other materials. Fed.R.Civ.P. 56(c)(1)(A). Once the initial burden is met, however, " Rule 56(e) requires the nonmoving party to ...

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