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McNamara v. Bethesda Lutheran Communities, Inc.

United States District Court, D. Kansas

April 18, 2014

CATHLEEN McNAMARA, Plaintiff,
v.
BETHESDA LUTHERAN COMMUNITIES, INC., Defendant.

MEMORANDUM AND ORDER

CARLOS MURGUIA, District Judge.

Plaintiff Cathleen McNamara brings claims for gender and age discrimination against her former employer, Bethesda Lutheran Communities, Inc. Plaintiff alleges defendant unlawfully terminated her employment, or failed to retain her employment, following a corporate restructuring.

This matter is before the court on defendant's Motion for Summary Judgment (Doc. 46). Defendant contends that plaintiff's discrimination claims fail as a matter of law because plaintiff did not present evidence indicating defendant terminated her employment for any reason other than its stated reason-that plaintiff failed to adequately perform her job functions. The court agrees with defendant and, for the following reasons, grants defendant's motion.

I. Background[1]

Defendant is a Christian social service charity and nonprofit organization that provides services to persons with developmental and intellectual disabilities. Defendant hired plaintiff in 1995 and discharged plaintiff in July 2011. Shortly before plaintiff's discharge, defendant had twelve business regions, which included the South Central (Kansas) and Rocky Mountain (Colorado) Regions. From 2009, defendant employed plaintiff as the Business Director for its South Central Region at its campus in Overland Park, Kansas.

A. Auditing Client Funds

As a Business Director, plaintiff was responsible for auditing client funds, determining how those funds would be audited, and training other individuals to audit client funds.[2] In March and April 2009, and again in April 2010, defendant provided training to plaintiff on how to conduct audits of client funds.

Plaintiff performed no audits of client funds in 2009. Plaintiff admits that the fact she did not perform any client audits in 2009 was a job performance failure on her part. Plaintiff also concedes that, in the calendar year 2010, she neither performed any client-fund audits, nor directed any persons to perform any audits of client funds. Plaintiff also took no steps to oversee client purchases, even though she admitted this was part of her job responsibilities.

In late 2009 and into 2010, Susan Fenderson, a Program Manager in plaintiff's South Central Region, began stealing funds from client accounts that she (Fenderson) managed. In August 2010, defendant discovered that Fenderson had stolen client funds by purchasing items on defendant's credit cards and keeping those items for herself. During the time Fenderson was stealing, Fenderson worked in plaintiff's region, and it was plaintiff's responsibility to confirm that personal items bought for individuals on defendant's credit cards were in possession of defendant's clients. Fenderson's theft of client funds totaled almost $28, 000, which defendant had to repay to its clients and report to Kansas licensing regulators. In response to the theft, defendant instituted new protocols and procedures regarding auditing oversight.

Plaintiff knew that client audits were a "front-burner" issue after discovery of the theft. Specifically, plaintiff understood that she, as a Business Director, was to make sure that audits of client funds were being done on a timely and monthly basis and that updates were being put into the computer system.

By July 2011, plaintiff had failed to conduct her monthly audits. On July 26, 2011, Mike Minning, defendant's Corporate Director of Financial Reporting and Internal Control Systems, sent plaintiff an e-mail in which he stated, in part:

It is now almost the end of July and your region is still failing to get all personal fund audit[s] completed. The personal fund audits must get done. As the Business Director in your region the personal fund audit process is your direct responsibility.
Currently I can see that only the months of January, March and April have been completed but have not been updated in the master file (a process you must complete). I do not see any information for the month of February. I would like to know why nothing was recorded for February. I want everything for the months of January through June updated before you leave for vacation....

Plaintiff concedes that, as of July 26, 2011, the audits were not updated and the information for February 2011 was missing. Plaintiff now contends she thought the remaining months actually were updated but simply placed in the wrong file. However, plaintiff admits that, during a telephone call with Minning that same day (July 26), she told Minning she would try get the audits finished but that she really did not have enough time and that she could not make any promises that she would get them finished.

B. Monthly Billing

In her capacity as Business Director, plaintiff also was in charge of sending monthly bills to guardians who paid for the room and board of the clients defendant served. More specifically, plaintiff was responsible for sending bills and making sure she had an accurate census as to who was served by defendant and at what level of reimbursement rate the client should be billed. Plaintiff admits she did not send billing statements to every guardian who should have been paying; rather, plaintiff determined to whom to send these bills on an ad hoc basis. Plaintiff's Regional Director, Deborah Rear, was critical of plaintiff's performance in the area of billing and expressed concern to plaintiff about money being lost because plaintiff did not have a system to ensure that those who were receiving services were being billed. Plaintiff concedes that her failure to send bills resulted in monetary losses to defendant of more than $25, 000.

C. The Restructure

In June 2011, defendant announced an operational restructure (to become effective September 2011) and the consolidation of its twelve business regions into six business regions, including the consolidation of its South Central and Rocky Mountain operations into a single West Central Region. This consolidation meant that, among other things, there would be one (instead of two) Business Directors for the new West Central Region. At the time defendant announced the restructure, plaintiff was aware that 1) the South Central and Rocky Mountain Regions were being consolidated into one and 2) there was a possibility that plaintiff would not have a job after the restructure.

Also in June 2011, and as a result of the upcoming restructure, defendant announced that Mark Wester would become the Regional Director of, and would be the individual selecting the Business Director for, the new West Central Region. At that time, Jeff Zielke, whom defendant hired in August 2010, was the Business Director for the Rocky Mountain Region. Zielke was twenty-four years old and a recent accounting graduate of the University of Wisconsin.[3] As Business Directors, plaintiff and Zielke had the same duties and responsibilities, but plaintiff claims she performed more duties than Zielke.[4] Plaintiff concedes, however, she never observed Zielke's job ...


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