Barbara Brasher v. Thomas Jefferson University Ho

Filing

NOT PRECEDENTIAL OPINION Coram: VANASKIE, KRAUSE and NYGAARD, Circuit Judges. Total Pages: 6. Judge: KRAUSE Authoring.

Case: 16-1146

Document: 003112523752

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Date Filed: 01/27/2017

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 16-1146

BARBARA BRASHER,
Appellant
v.
THOMAS JEFFERSON UNIVERSITY HOSPITAL INC,
TDBA Thomas Jefferson University Hospital
____________________________________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Civil Action No. 2-13-cv-04103)
District Judge: Honorable Anita B. Brody
____________________________________
Submitted Under Third Circuit L.A.R. 34.1(a)
on Tuesday October 25, 2016
Before: VANASKIE, KRAUSE, and NYGAARD, Circuit Judges
(Opinion filed: January 27, 2017)
OPINION*

*

This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7
does not constitute binding precedent.

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KRAUSE, Circuit Judge.
Barbara Brasher appeals the District Court’s grant of summary judgment in favor
of her former employer, Thomas Jefferson University Hospital, on Brasher’s Age
Discrimination in Employment Act claim. For the reasons that follow, we will affirm.
I.

Background
Brasher is a nurse, now at least fifty-two years old, who was employed at Thomas

Jefferson University Hospital from January 2009 until January 21, 2013. During that
time, Brasher was the subject of multiple disciplinary actions relating to her work
performance, culminating in the Hospital’s decision to terminate her employment based
on her handling of a diabetic patient’s insulin therapy.1
Brasher brought an age discrimination claim against the Hospital under the Age
Employment in Discrimination Act of 1967 (“ADEA”), 21 U.S.C. §§ 621-634.2 The
District Court granted summary judgment to the Hospital, on the ground that Brasher had
not raised a genuine issue of material fact as to whether the Hospital’s legitimate,
nondiscriminatory reasons for deciding to terminate her—her alleged failure to follow the
Hospital’s protocols, her decision to begin an insulin infusion that was beyond the scope
of her nursing license, and her history of documentation errors—were pretextual. See

1

Although Brasher chose to resign when it became clear that the Hospital had
decided to terminate her employment, the parties analyze this case as if the Hospital had
affirmatively terminated Brasher’s employment, and the Court does the same.
2

Brasher also brought a Pennsylvania Human Relations Act claim, which is not at
issue in this appeal. The District Court granted summary judgment on that claim to the
Hospital.
2

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Brasher v. Thomas Jefferson Univ. Hosps., Inc., No. 13-4103, 2015 WL 9315985, at *4-9
(E.D. Pa. Dec. 23, 2015). This appeal followed.
II.

Discussion3
Brasher contests the District Court’s grant of summary judgment, which we

review de novo, Courtney v. La Salle Univ., 124 F.3d 499, 502 (3d Cir. 1997), and will
affirm if “there is no genuine dispute as to any material fact” and if, viewing the facts in
light most favorable to Brasher, the Hospital “is entitled to judgment as a matter of law,”
Fed. R. Civ. P. 56(a); Burton v. Teleflex Inc., 707 F.3d 417, 425 (3d Cir. 2013). Brasher
advances three sources of evidence to show that the Hospital’s reasons for deciding to
terminate her were pretextual,4 and we address each source of evidence in turn.
First, Brasher points to the Hospital’s failure to fire JiJi Joseph, “a nurse in her
20’s,” who, like Brasher, had made a serious medication error. Appellant’s Br. 15, 1819. Brasher’s point relies on the principle that evidence of more favorable treatment
toward a similarly situated member of a non-protected group, when combined with other

The District Court had subject-matter jurisdiction over Brasher’s ADEA claim
pursuant to 28 U.S.C. § 1331. We have jurisdiction pursuant to 28 U.S.C. § 1291.
3

4

The parties do not dispute that, under the first step of the McDonnell Douglas
burden-shifting framework that applies to Brasher’s ADEA claim, see Burton, 707 F.3d
at 425-27, Brasher established a prima facie case of age discrimination. And, aside from
two passing statements in Brasher’s brief that do not suffice to place the issue in dispute,
see Laborers’ Int’l Union of N. Am., AFL-CIO v. Foster Wheeler Corp., 26 F.3d 375, 398
(3d Cir. 1994), the parties do not dispute that, under the second step of the McDonnell
Douglas framework, the Hospital articulated legitimate, nondiscriminatory reasons for
Brasher’s termination. We therefore proceed to the third step of the McDonnell Douglas
framework, in which the plaintiff must provide evidence from which a factfinder could
reasonably infer pretext. See Burton, 707 F.3d at 426-27.
3

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evidence from which to infer discrimination, may allow a plaintiff to establish pretext.
See Simpson v. Kay Jewelers, Div. of Sterling, Inc., 142 F.3d 639, 645-47 (3d Cir. 1998).
But, as the District Court correctly noted, Johnson was not similarly situated to Brasher,
for there was no evidence that Johnson had Brasher’s history of documentation errors,
which had been a factor in the Hospital’s decision to terminate Brasher’s employment.
See Brasher, 2015 WL 9315985, at *8. Thus, because Johnson lacked some of “the
particular criteria or qualifications identified by the employer as the reason for the
adverse action,” the Hospital’s failure to fire Joseph is not evidence of pretext. Simpson,
142 F.3d at 647; accord Willis v. UPMC Children’s Hosp. of Pittsburgh, 808 F.3d 638,
649-50 (3d Cir. 2015); Blanding v. Pa. State Police, 12 F.3d 1303, 1309-10 (3d Cir.
1993).
Second, Brasher cites the “considerable animosity” she experienced from her
former colleagues at the Hospital. Appellant’s Br. 19-20. However, this evidence also
cannot establish pretext, whether we consider it as grounds for a hostile work
environment claim or as evidence of more favorable treatment toward a similarly situated
member of a non-protected group. To the extent Brasher intends to cite her former
colleagues’ behavior as grounds for a hostile work environment claim, she has not
appealed the District Court’s decision not to entertain that “eleventh-hour claim,”
Brasher, 2015 WL 9315985, at *4 n.9, and she has thus waived any argument in support
of it, see Gonzalez v. AMR, 549 F.3d 219, 225 (3d Cir. 2008). And to the extent Brasher
intends to cite her former colleagues’ behavior as evidence of more favorable treatment
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toward similarly situated comparators, she fails to establish that her former colleagues
were similarly situated, as she neither asserts that they were younger nor that their
transgressions were as serious as her own. See Willis, 808 F.3d at 649-50; Anderson v.
Consol. Rail Corp., 297 F.3d 242, 250 (3d Cir. 2002).
Lastly, Brasher points to evidence indicating that she had followed a physician’s
instructions during “the insulin incident” that led to the Hospital’s decision to terminate
her employment. Appellant’s Br. 20 (internal quotation marks omitted). But, to raise a
genuine issue of fact on pretext, Brasher cannot merely point to evidence that one of the
Hospital’s reasons for deciding to terminate her employment was wrong; she must cite
evidence to show “that it was so plainly wrong that it cannot have been the . . . real
reason,” Keller v. Orix Credit Alliance, Inc., 130 F.3d 1101, 1109 (3d Cir. 1997), and that
the Hospital’s real reason was thus discriminatory animus, see Daniels v. Sch. Dist. of
Phila., 776 F.3d 181, 198-99 (3d Cir. 2015); Fuentes v. Perskie, 32 F.3d 759, 765 (3d
Cir. 1994).
Brasher’s evidence does not satisfy this standard. Even assuming that Brasher had
followed a physician’s instructions during “the insulin incident,” Brasher does not dispute
the facts underlying the Hospital’s other reasons for deciding to terminate her
employment: (a) her failure to follow the Hospital’s protocols, which, among other
things, required two nurses to approve insulin infusions, and (b) her history of
documentation errors. Indeed, Brasher concedes (a) that she “forgot to have a second
nurse witness her actions” in connection with the insulin infusion; and (b) that she
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previously had been placed on a “Formal Employee Action Plan” in response to
complaints about her documentation and also had received a written warning in
connection with yet more documentation errors. Appellant’s Br. 7, 9. On this record,
because Brasher produced evidence to discredit only one of the Hospital’s multiple
reasons for deciding to terminate her employment, and because that evidence is
unaccompanied by weaknesses or inconsistencies underlying the Hospital’s other
reasons, Brasher’s third source of evidence does not create a genuine issue of fact as to
whether the Hospital’s reasons for deciding to terminate Brasher’s employment were
pretextual. See Daniels, 776 F.3d at 198-99; Fuentes, 32 F.3d at 765.
III.

Conclusion
We conclude that, whether considered singly or in the aggregate, Brasher’s cited

sources of evidence do not establish a genuine issue of material fact and the Hospital was
entitled to summary judgment. See Burton, 707 F.3d at 426-27. We will therefore affirm
the judgment of the District Court.

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