Mikele Boyle v. Penn Dental Medicine, et al

Filing

NOT PRECEDENTIAL OPINION Coram: AMBRO, RESTREPO and COWEN, Circuit Judges. Total Pages: 9. Judge: AMBRO Authoring.

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Date Filed: 05/19/2017

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 16-3621
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MIKELE L. BOYLE, D.M.D.,
Appellant
v.
PENN DENTAL MEDICINE; UNIVERSITY OF PENNSYLVANIA TRUSTEES;
PETER B. KAUDERWOOD; DENIS F. KINANE, B.D.S., PH.D.
________________
Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Civil Action No. 2-15-cv-04716)
District Judge: Honorable Legrome D. Davis
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Submitted Under Third Circuit LAR 34.1(a)
May 11, 2017
Before: AMBRO, RESTREPO, and COWEN, Circuit Judges
(Opinion filed: May 19, 2017)
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OPINION*
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AMBRO, Circuit Judge
I.
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INTRODUCTION

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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Dr. Mikele L. Boyle, a 61-year-old dentist, alleges that Penn Dental Medicine, the
Trustees of the University of Pennsylvania, Dr. Denis F. Kinane, and Peter B.
Kauderwood (collectively, “Penn Dental”) violated the Age Discrimination in
Employment Act (“ADEA”), 29 U.S.C. §§ 621 et seq., the Pennsylvania Human
Relations Act (“PHRA”), 43 Pa. Cons. Stat. §§ 951 et seq.1, and the Employee
Retirement Income Security Act (“ERISA”), 29 U.S.C. §§ 1001 et seq., when they fired
her following an investigation by Penn Dental’s Quality Assurance Committee (the
“Quality Committee” or simply the “Committee”). Although Boyle presents no direct
evidence of age discrimination or intentional interference with her entitlement to ERISAprotected benefits, she claims that a reasonable jury could infer violations of the ADEA,
the PHRA, and ERISA. Following discovery, the District Court granted summary
judgment in favor of Penn Dental on all of Boyle’s claims, and she appeals.
II.

STANDARD OF REVIEW
Our review of an order granting summary judgment is plenary. Willis v. UPMC

Children’s Hosp. of Pittsburgh, 808 F.3d 638, 643 (3d Cir. 2015). We will uphold a grant
of summary judgment if, viewing the facts and any inferences therefrom in the light most
favorable to the non-moving party, Blunt v. Lower Merion School District, 767 F.3d 247,
265 (3d Cir. 2014), “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).

“There is no need to differentiate between [plaintiff’s] ADEA and PHRA claims
because, for our purposes, the same analysis is used for both.” Connors v. Chrysler Fin.
Corp., 160 F.3d 971, 972 (3d Cir. 1998).
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III.

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BACKGROUND
Boyle worked at Penn Dental from 1999 to 2013. In 2012, several of her

colleagues reported concerns about Boyle’s clinical work to Dr. Alisa Kauffman, Penn
Dental’s Clinical Director, who was in charge of overseeing the quality of dental care and
minimizing costs. Kauffman herself had previously noticed “sloppy” treatment preauthorization requests and poor treatment outcomes, so she performed her own quality
assurance audit of Boyle’s work. J.A. 5. Kauffman later met with the Dean of the
University of Pennsylvania School of Dental Medicine, Dr. Denis Kinane, to discuss her
concerns and recommend that he convene Penn Dental’s Quality Committee.
Kauffman, Kinane, and Assistant Dean Peter Kauderwood then met with Boyle
and asked her to resign. According to her, they accused her of malpractice and fraud and
threatened to report her to the Pennsylvania Board of Dentistry if she did not resign
immediately. When Boyle refused, Kinane convened the Quality Committee and
suspended her with pay pending its review.
Neither Kauffman nor Kinane sat on the Quality Committee. Its six members
consisted of four Penn Dental dentists, Kauderwood, and Dr. John Reitz, a prominent
dentist not employed by Penn who was asked to chair the Committee. It reviewed
between forty and sixty of Boyle’s patients’ charts and met with her to discuss nine cases
in detail. The Committee came to a unanimous agreement that Boyle was not performing
to Penn Dental’s standard of care and recommended a six-month probationary period.
Kinane accepted these findings and made arrangements for Boyle to return to work.

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However, during Boyle’s initial paid suspension, the dentists who treated her
patients in her absence raised additional concerns with Kauffman about the quality of
Boyle’s work. When Kauffman relayed these concerns to Kinane, Kauderwood, and
(through Kinane) the Quality Committee, the Committee increased the scope of its
investigation. It met with the dentists who had raised concerns about Boyle and, after
further review of her patients’ outcomes, agreed, again unanimously, that Boyle was not
planning and executing treatments to Penn Dental’s minimum standards and that her
clinical notes lacked adequate documentation. When Kinane received the Quality
Committee’s second report, which did not recommend remediation or probation, he fired
Boyle in November 2013.
IV.

ANALYSIS
A.

Age Discrimination

We evaluate Boyle’s age-discrimination claims under the familiar McDonnell
Douglas burden-shifting formula: 1) the plaintiff has the burden of establishing a prima
facie case of age discrimination; 2) if she does, the burden shifts to the defendant to
articulate a legitimate, nondiscriminatory reason for the alleged adverse employment
action; and 3) if the defendant meets its burden, the plaintiff must show that the
defendant’s proffered legitimate, nondiscriminatory reason was pretextual (that is, an
excuse). Willis, 808 F.3d at 644. While it is not obvious that Boyle has even established a
prima facie case, Penn Dental has offered a legitimate, nondiscriminatory reason for
firing her, and she has failed to show it was pretextual. Consequently, we shall affirm the
District Court’s grant of summary judgment on that basis.
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“The employer satisfies its burden of production by introducing evidence which,
taken as true, would permit the conclusion that there was a nondiscriminatory reason for
the unfavorable employment decision.” Fuentes v. Perskie, 32 F.3d 759, 763 (3d Cir.
1994). Penn Dental produced significant evidence that it fired Boyle because she was not
performing to its standard of care. Thus, in order to avoid summary judgment, Boyle
must point to evidence that “1) casts sufficient doubt upon . . . the legitimate reason[]
proffered by the defendant so that a factfinder could reasonably conclude that [it] was a
fabrication; or 2) allows the factfinder to infer that [age] discrimination was more likely
than not a motivating or determinative cause of the adverse employment action.” Id. at
762. She doesn’t do so.
Boyle produced no direct evidence of discrimination. She admits that no one at
Penn Dental ever mentioned her age during her review and eventual termination; that she
has no reason to believe the Quality Committee was aware of or considered her age when
it made its findings; that, to her knowledge, none of the dentists who initially raised
concerns about the quality of her work had any bias against her; and that, while she
suspected Kauffman had a grudge against her, the latter never did or said anything that
would lead Boyle to believe there was a bias against older dentists.
In the absence of direct evidence, Boyle points to circumstantial evidence that she
contends shows that Penn Dental’s stated reason for firing her was pretextual. She looks
first to the case of one former Penn Dental dentist, under age 40, who, unlike Boyle, was
put on a performance management plan before being fired. Boyle claims the fact that this
younger dentist received different treatment shows that Penn Dental discriminated against
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her. But the example she cites is relevant only if Boyle and the younger dentist were
similarly situated. See Simpson v. Kay Jewelers, Div. of Sterling, Inc., 142 F.3d 639, 645
(3d Cir. 1998). They were not. While all of Penn Dental’s concerns about Boyle related
to the quality of the care she delivered (and thus went to the core of her work), the bulk of
its concerns about Boyle’s younger purported comparator focused on his productivity:
tendency to leave work early, failure to come to work on Mondays, and refusal to accept
new patients. J.A. 30, 354.
She next looks for support in the cases of other dentists over age 40 who Boyle
contends were pushed out of Penn Dental. She admits that she has no personal knowledge
of why these dentists left, has no basis on which to evaluate their quality as dentists, and
received no information about their departures from anyone at Penn Dental. Other than
the hearsay that Boyle delivered in her own deposition, she relies only on complaints,
correspondence, and court filings relating to the other terminated employees. But hearsay,
whether contained in Boyle’s testimony or other employees’ documents, is not admissible
to defeat a motion for summary judgment. See Smith v. City of Allentown, 589 F.3d 684,
693 (3d Cir. 2009) (“Hearsay statements that would be inadmissible at trial may not be
considered for purposes of summary judgment.”).
Taking on the Quality Committee’s findings directly, Boyle presents her own
testimony that she responded to all of the Committee’s concerns, the affidavit of one
former colleague, Dr. Steven Pesis, attesting that she “was an excellent dentist[,]” J.A.
346–47, and letters from a few patients who were satisfied with her care and upset about

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her departure from Penn Dental. Boyle also notes that, over her nearly 15 years with Penn
Dental, she received no complaints from patients.
But “[t]he fact that an employee disagrees with an employer’s evaluation of him
does not prove pretext.” See Billet v. CIGNA Corp., 940 F.2d 812, 825 (3d Cir. 1991)
overruled in part on other grounds by St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502
(1993). And the colleague whose affidavit she cites was neither a member of the Quality
Committee nor a supervisor of Boyle’s work. Finally, the notes of satisfaction and
absence of complaints from patients who rely on the expertise of Penn Dental and its
employees do little to cast doubt on the truth of its quality concerns.
“[W]e do ‘not sit as a super-personnel department that reexamines an entity’s
business decisions.’” Capps v. Mondelez Glob., LLC, 847 F.3d 144, 154 n.9 (3d Cir.
2017) (quoting McCoy v. WGN Cont’l Broad. Co., 957 F.2d 368, 373 (7th Cir. 1992)).
“No matter how medieval a firm’s practices, no matter how high-handed its decisional
process, no matter how mistaken the firm’s managers, [the ADEA does] not interfere.”
McCoy, 957 F.2d at 373 (quoting Pollard v. Rea Magnet Wire Co., 824 F.2d 557, 560
(7th Cir. 1987)). “[T]he issue of pretext does not address the correctness or desirability of
reasons offered for employment decisions. Rather, it addresses the issue of whether the
employer honestly believes in the reasons it offers.” Id. (internal citation omitted).2

Boyle also complains about the Quality Committee’s initial invitation to meet with her
to discuss certain patients’ charts within two weeks of giving her notice of the cases to be
reviewed. She notes that the Committee’s policy affords preparation time of “up to one
month” to dentists under review. See J.A. 9 n.8. She asked for more time, and although a
discovered e-mail written by the Committee’s chair shows his reluctance, the Committee
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The closest Boyle gets to casting doubt on Penn Dental’s concerns is her citation
to the affidavit of Steven Pesis, who, despite Kauffman’s statement to the contrary, stated
that he did not approach her with concerns about Boyle’s work. The affidavit might raise
an eyebrow, but it is not enough for a reasonable jury to infer that Penn Dental’s reasons
given for firing Boyle were pretextual. Pesis was only one of four dentists who came to
Kauffman with concerns about Boyle, and Boyle presents neither deposition testimony
nor affidavits from the other three. Moroever, even were Kauffman biased or misguided
in her initial concerns, she was neither a member of the Quality Committee nor the one
who made the ultimate decision to fire Boyle. And Boyle presents no evidence that
Kauffman was biased against her because of her age.
For all of these reasons, we agree with the District Court’s grant of summary
judgment in favor of Penn Dental on Boyle’s age-discrimination claims.
B.

Interference with Retirement Benefits

“Section 510 of ERISA prohibits employer conduct taken against an employee
who participates in a pension benefit plan for ‘the purpose of interfering with the
attainment of any right to which such participant may become entitled under the plan.’”
Gavalik v. Cont’l Can Co., 812 F.2d 834, 851 (3d Cir. 1987) (quoting 29 U.S.C. § 1140).
Boyle dedicates just four sentences of her brief to defending her ERISA claim. She
contends only that this claim is based on the same evidence of pretext supporting her age-

granted her request. Without more, it is difficult to see how this apparent slight
undermines the Committee’s conclusions about the quality of Boyle’s work.
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discrimination claims, that the District Court was wrong to grant summary judgment as to
those claims, and thus that she must also prevail on her ERISA claim.
We take Boyle’s invitation to evaluate her ERISA claim in the same light as her
age-discrimination claims, and, accordingly, we affirm the District Court’s grant of
summary judgment on this claim as well. We also note, however, that a finding of pretext
with respect to Boyle’s ADEA claim would not necessarily require reversal as to her
ERISA claim because the latter requires a showing of “specific intent to violate ERISA.”
Dewitt v. Penn-Del Directory Corp., 106 F.3d 514, 522 (3d Cir. 1997) (internal quotation
marks omitted). Moreover, Boyle does not identify any ERISA-covered retirement
benefits that would have vested absent her termination. She cites her own deposition
testimony regarding tuition benefits to which she would have continued to be entitled if
she later retired from Penn Dental. See J.A. 286–287. But it argues that these benefits are
not governed by ERISA, J.A. 59–60, and Boyle makes no argument to the contrary.
Accordingly, Boyle’s ERISA claim cannot stand.
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We thus affirm the judgment of the District Court.

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