Ridgeway v. Bayhealth Medical Center Inc.

Filing 39

REPORT AND RECOMMENDATIONS recommending GRANTING D.I. 32 MOTION for Summary Judgment filed by Bayhealth Medical Center Inc.. Please note that when filing Objections pursuant to Federal Rule of Civil Procedure 72(b)(2), briefing consi sts solely of the Objections (no longer than ten (10) pages) and the Response to the Objections (no longer than ten (10) pages). No further briefing shall be permitted with respect to objections without leave of the Court. Objections to R&R due by 10/18/2013. Signed by Judge Christopher J. Burke on 9/30/2013. (dlk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
KAREN L. RIDGEWAY,
Plaintiff,

v.
BAYHEALTH MEDICAL CENTER,
INC., a Delaware corporation,
Defendant.

)
)
)
)
)
)
)
)
)
)

Civil Action No. 12-158-LPS-CJB

REPORT AND RECOMMENDATION
Plaintiff Karen L. Ridgeway ("Ridgeway" or "Plaintiff') filed this action against
defendant Bayhealth Medical Center, Inc. ("Bayhealth" or "Defendant"), alleging a single claim
of employment discrimination based on age, in violation of the Age Discrimination in
Employment Act of 1967 ("ADEA"), 29 U.S.C. § 621, et seq. Presently pending before the
Court is Defendant's Motion for Summary Judgment ("Motion"). (D.I. 32) For the reasons set
forth below, the Court recommends that the Motion be GRANTED.

I.

BACKGROUND
A.

Factual Background
1.

Plaintiffs Employment History

Plaintiff began her employment at Bayhealth, a Delaware healthcare system, in 1981.
(D.I. 1 at~ 10) Bayhealth, which is comprised of Kent General and Milford Memorial Hospitals,
employs its "Five Star Standards" as a way of setting out how its employees should interact with
others, including patient "customers." (D.I. 33 at 2; D.I. 34 at 47-48) 1 These "Five Star

Citations to D.l. 34, an appendix provided by Defendant, will be to the ECF page
numbers associated with the document.

Standards" state that, inter alia, employees are expected to provide the "'highest quality of
service"' and "'meet[] customers' needs with utmost care and courtesy[.]"' (D.I. 33 at 2-3; D.l.
34 at 48)
Plaintiff served as a registered nurse for the entirety of her employment with Bayhealth;
in the last ten years of her work there, she worked on a medical surgical unit, and assisted
patients with their daily activities and treatment. (D.I. 34 at 4) Defendant ultimately terminated
Plaintiffs employment in December 2010, when Plaintiff was 52 years old. (D.I. 1 at~ 12; D.l.
34 at 10) Plaintiffs supervisor for most of her last ten years at Bayhealth was Kathleen Boyer.
(D.I. 34 at 62)
From 2000 to 2008, Plaintiff (with one exception) received a rating of "above
expectations" in her annual performance evaluations, which, for the most part, included very
positive comments regarding Plaintiffs interaction with peers and fellow patients. (D.I. 34 at 85;
D.l. 37 at B1-B15) However, from 1988 through 2009, Plaintiff was also cited for 13 different
disciplinary violations, including six verbal warnings, four written violations and three
suspensions. (D.I. 34 at 86) Many of these violations related to Plaintiffs demeanor with staff
and patients, such as violations for being "[r]ude to staff[,]" and "[r]ude and unsympathetic
toward patient and family[,]" making "derogatory comments in [the] presence of ... staff' and
for "[r]ude and offensive behavior[.]" (!d.) One such incident occurred in 2006, when Plaintiff
was given a verbal warning after she told a fellow employee in the Pharmacy department who
could not understand her instructions: "'Let me speak to someone who can speak [E]nglish. "'
(!d. at 50)

For the 2009 year, Plaintiff received a rating of"meets expectations" (D.I. 37 at B162

B 17) While this report included positive comments, it also noted, inter alia, that Plaintiff had
"little patience for those co-workers who do not share her work ethic[,]" was described as
"intimidating" by newer nurses and as someone who can "come across as hostile" when she or
her patients are not getting what they need. (!d. at B 17)
In September 2010, Plaintiff was involved in a few incidents at Bayhealth. On September
5, 2010, a technician in the Telemetry Department twice notified Plaintiff about a particular
patient's slow heart rate. (D.I. 34 at 52) According to a later-filed Employee Corrective Action
Record, Plaintiff responded with "indifference to this news" and was said to have not effectively
communicated to the technician that her assessment of the patient was different than what was
being reported on the patient's heart monitor. (!d. at 52, 65)
On September 8, 2010, Plaintiff was involved in two separate patient-related incidents.
In the first, a patient named J.Y. refused to let Plaintiff care for her any further, asserting that
Plaintiff"treated me like I was lazy." (!d. at 52) J.Y claimed that Plaintiff had addressed her in
an "insulting" manner that lacked "compassion" and was "rude." (!d. (quotation marks omitted))
For her part, Plaintiff explained that the patient liked to stay in bed a lot, and that Plaintiff had to
"strongly encourage her" to get up and walk around so as to avoid blood clots. (!d. at 8; D.l. 37
at B21) Plaintiff also stated that J. Y. lied about many aspects of their interaction. (D.I. 34 at 8,
10)
In the second September 8 incident, Plaintiff told Boyer that she had "had enough" with a
wheelchair-bound patient named R.H. and could not assist him anymore. (!d. at 52) When
Boyer checked on the patient, she found him crying and anxious; he said that he did not want
Plaintiff taking care of him any further, as unlike the other nurses who were "wonderful and very

3

compassionate[,]" Plaintiff was instead "focused on 'attacking him"' and denying him access to a
wheelchair. (!d.) R.H.'s wife was also in tears when she spoke with Boyer, and asserted that
Plaintiff was "keeping [R.H.] like a prisoner[.]" (!d.) For her part, Plaintiff claimed that the
dispute arose over R.H. 's attempts to leave the hospital floor to smoke; when Plaintiff tried to
stop what she saw as behavior dangerous to R.H.' s health, she said R.H. became almost "violent"
and this "scared" her. (!d. at 9-10, 53; D.I. 37 at B20) Plaintiff stated that she spoke in the
"kindest manner" to R.H. whenever they interacted, and denied that she had attacked him
verbally. (D.I. 37 at B20)
Plaintiff was suspended for five days due to these September 2010 incidents. (D.I. 34 at
52) An Employee Corrective Action Record regarding the incidents states that "[b ]eginning
immediately, [Plaintiff] will begin to demonstrate compassion and caring for her patients and
their well being by improving her communication style[,]" and that the behaviors Plaintiff
displayed were "not acceptable" and required "immediate and sustained improvement." (!d. at
53) It noted that any "additional policy infractions will result in an immediate termination." (!d.)
In significant part due to these September 2010 incidents, Plaintiff received a "below
expectations" rating on her 201 0 annual performance evaluation, which she signed on December
23, 2010. (!d. at 39-50) The incidents were referenced in the evaluation as examples of
Plaintiffs failure to effectively communicate with others, or to demonstrate compassion and
caring to patients. (!d.) Ultimately, although it noted some positive aspects of Plaintiffs work,
the evaluation concluded that Plaintiff had "struggled" with creating and supporting Bayhealth's
"Five-Star Service culture." (!d. at 48) At the end of the evaluation, Boyer writes that while
Plaintiff did not completely agree with the assessment, she "verbalized understanding of areas of
4

needed improvement." (/d. at 50)
Two days later, on December 25, 2010, a patient, M.J., expressed that she was upset and
dissatisfied with Plaintiff. (!d. at 55, 57) The patient stated that she had a migraine headache,
but that Plaintiff did not show her "compassionate behavior[,]" delayed providing medication for
the migraine and failed to follow up with her. (/d. at 55-56) The patient described this as a
"'horrible experience.'" (!d. at 56) Plaintiff, for her part, asserted that she had treated the patient
with compassion and had attempted to accelerate the process of getting the patient her
medication. (D.I. 37 at B25-B27)
Following this December 25, 2010 incident, Bayhealth decided to terminate Plaintiffs
employment. (D.I. 34 at 55) An Employee Corrective Action Record regarding the termination
cites this incident as part of a "pattern of insensitive, inappropriate, and uncaring behavior"
allegedly displayed by Plaintiff during her tenure. (!d. at 56) A January 2011 letter sent to
Plaintiff regarding the termination (the "January 2011 termination letter"): ( 1) noted that
Plaintiff was discharged for cause, due to failing "to deliver care in a manner consistent with
organizational standards"; (2) cited Plaintiffs "insensitiv[ity] to patient needs and [a lack ofJ
compassion necessary to promote an effective patient/staff relationship"; and (3) noted this was
part of a "pattern of similar behavior" Plaintiff had displayed in the past. (/d. at 59) Plaintiff
appealed the discharge internally; Bayhealth's Chief Executive Officer thereafter denied the
appeal, noting in a February 2011 letter (the "February 2011 letter") that Plaintiffs description of
certain of these incidents differed from the patients' description, but finding the patients'
complaints to be "credible[.]" (!d. at 60)

5

2.

Information Regarding Other Bayhealth Nurses

In her briefing, Plaintiff has pointed to three nurses at Bayhealth who were younger than
Plaintiff and whom Plaintiff asserts are appropriate comparators.
The first, referred to in the briefing as "Nurse A," was 23 years old at the time of
Plaintiffs termination in December 2010, and had been working for Bayhealth as a nurse for one
year and two months at that time. (D.I. 37 at B45) In or around January 2010, a patient in Nurse
A's care began to vomit, and the patient's granddaughter stated that when she asked Nurse A for
help, Nurse A responded "'What would you like me to do?'" and failed to help in any way. (!d.
at B42) In reviewing the incident, Boyer wrote that Nurse A was a "brand new nurse[,] fresh off
orientation" about whom Boyer had been receiving "very positive feedback[.]" (!d. at B41)
Boyer stated that Nurse A had attempted to call for a doctor when she saw the patient vomiting.
(!d.) However, Boyer wrote that Nurse A had "not communicat[ed] effectively with" the

patient's granddaughter in failing to inform her that Nurse A was attempting to call a doctor,
which left the impression that Nurse A did not care about the patient. (!d.)
In June 2010, Nurse A was involved in another incident, in which a patient complained
about Nurse A's attitude. (!d. at B35) Boyer later wrote that Nurse A was upset about the
condition of the patient's roommate and may have "come across" the wrong way to the patient.
(!d.) Since this was the second time Nurse A had a patient express concern over her attitude and

care, Boyer treated the incident as worthy of a "formal coaching session" with the understanding
that a future complaint would result in counseling. (!d.) She wrote that the incident was likely
due to Nurse A's "inexperience and newness coming through[.]" (!d.)
Nurse B was 24 years old at the time of Plaintiffs termination; she had been working for
6

Bayhealth for four years at that time, and as a nurse for seven months. (!d. at B49) In or around
July 2010, in Nurse B' s second month as a nurse, a patient complained that she had failed to
timely respond to his request for help in using the bathroom. (!d. at B37) Boyer later wrote that
Nurse B had a different memory of the nature of the request, but that she acknowledged having
failed to pass along the patient's request during a shift-to-shift report. (!d.)
Nurse C was 29 years old at the time of Plaintiffs termination; she had been working for
Bayhealth for over eight years at that time, and as a nurse for over seven years. (!d. at B44-B45)
In January 2010, Nurse C was involved in an incident in which a patient's daughter complained
that she had not been kept apprised of her mother's condition. (!d. at B40) According to the
patient, when she called and spoke to Nurse C (who was acting as Charge Nurse) about the
situation, Nurse C "'yelled at her"' and said that it was not the nursing staffs responsibility to
notify the patient's daughter. (Jd.) Boyer later wrote that Nurse C admitted that she "may have
been coming across as stem" in her conversation with the patient's daughter, but that Nurse C
claimed that the woman was yelling and would not listen to Nurse C's explanation about the
incident. (!d.) There is no record of Nurse C being disciplined regarding this incident. (!d. at
B53)

B.

Procedural History

On February 10, 2012, Plaintiff filed her Complaint. (D.I. 1) On April6, 2012, this
matter was referred to me by Judge Leonard P. Stark to "hear and resolve all pretrial matters, up
to and including the resolution of case-dispositive motions[.]" (D.I. 9)
On January 14, 2013, Defendant filed the instant Motion. (D.I. 32) Defendant's Motion
was fully briefed as of February 25, 2013. (D.I. 38)
7

II.

STANDARD OF REVIEW
A grant of summary judgment is appropriate where "the movant shows that there is no

genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law."
Fed. R. Civ. P. 56(a). The moving party bears the burden of demonstrating the absence of a
genuine issue of material fact. See Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475
U.S. 574,585 n.lO (1986). Ifthe moving party has demonstrated the absence of a genuine
dispute of material fact, the nonmovant must then "come forward with specific facts showing
that there is a genuine issue for trial." Id at 587 (internal quotation marks omitted). If the
nonmoving party fails to make a sufficient showing on an essential element of its case with
respect to which it has the burden of proof, the moving party is entitled to judgment as a matter
of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). During this process, the Court
will "draw all reasonable inferences in favor of the nonmoving party, and it may not make
credibility determinations or weigh the evidence." Reeves v. Sanderson Plumbing Prods., Inc.,
530 u.s. 133, 150 (2000).
However, in order to defeat a motion for summary judgment, the nonmoving party must
"do more than simply show that there is some metaphysical doubt as to the material facts."

Matsushita, 475 U.S. at 586-87; see also Podobnik v. United States Postal Serv., 409 F.3d 584,
594 (3d Cir. 2005) (party opposing summary judgment "must present more than just bare
assertions, conclusory allegations or suspicions to show the existence of a genuine issue")
(internal quotation marks and citation omitted). The "mere existence of some alleged factual
dispute between the parties will not defeat an otherwise properly supported motion for summary
judgment; the requirement is that there be no genuine issue of material fact." Anderson v.

8

Liberty Lobby, Inc., 477 U.S. 242,247-48 (1986) (emphasis in original). Facts that could alter

the outcome are "material," and a factual dispute is genuine only where "the evidence is such that
a reasonable jury could return a verdict for the nonmoving party." !d. at 248. "If the evidence is
merely colorable, or is not significantly probative, summary judgment may be granted." !d. at
249-50 (internal citations omitted). A party asserting that a fact cannot be-or, alternatively,
is-genuinely disputed must support the assertion either by citing to "particular parts of materials
in the record, including depositions, documents, electronically stored information, affidavits or
declarations, stipulations (including those made for purposes of the motion only), admissions,
interrogatory answers, or other materials"; or by "showing that the materials cited do not
establish the absence or presence of a genuine dispute, or that an adverse party cannot produce
admissible evidence to support the fact." Fed. R. Civ. P. 56(c)(l)(A) & (B).

III.

DISCUSSION
A.

McDonnell Douglas Burden-shifting Analysis

The ADEA makes it "unlawful for an employer ... to discharge any individual or
otherwise discriminate against any individual with respect to his compensation, terms,
conditions, or privileges of employment, because of such individual's age[.]" 29 U.S.C. §
623(a). In the absence of direct evidence of discrimination, a plaintiff may prove age
discrimination through the familiar burden-shifting analysis developed by the United States
Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Smith v. City of
Allentown, 589 F.3d 684, 691 (3d Cir. 2009); Bowman v. U.S. Dept. ofAgric., Civ. No. 10-

00493-LPS, 2013 WL 1291622, at *2 (D. Del. Mar. 28, 2013). The parties agree that the
McDonnell Douglas burden-shifting framework is applicable to Plaintiffs claim of disparate

9

treatment, as Plaintiff does not point to the existence of direct evidence of discrimination here.
(D.I. 33 at 12-13; D.I. 36 at 13)
Under McDonnell Douglas, a plaintiff must first successfully establish a prima facie case
of age discrimination. Smith, 589 F.3d at 689; Bowman, 2013 WL 1291622, at *2. If she does
so, then the burden of production shifts to the defendant employer to articulate a legitimate, nondiscriminatory reason for the adverse employment action. Smith, 589 F.3d at 690; Bowman,
2013 WL 1291622, at *2. If the defendant employer can provide such a reason, the burden shifts
back to plaintiff to demonstrate, by a preponderance of the evidence, that the reasons offered by
defendant were not its true reasons for the adverse employment action, but were instead a pretext
for age discrimination. Smith, 589 F.3d at 690; Bowman, 2013 WL 1291622, at *2. 2

B.

Analysis
1.

Prima Facie Case

To establish a prima facie case of age discrimination, a plaintiff must show: ( 1) she is
forty years of age or older; (2) the defendant took an adverse employment action against her; (3)
she is qualified for the position; and (4) she was ultimately replaced by another employee who
was sufficiently younger to support an inference of discriminatory animus. Bowman, 2013 WL
2

The Third Circuit has endorsed the continued use of the McDonnell Douglas
framework even after the Supreme Court's decision in Gross v. FBL Fin. Servs., Inc., 557 U.S.
167, 180 (2009), which required that a plaintiff seeking to recover under a disparate treatment
age discrimination theory must prove by a preponderance of the evidence that age was the "but
for" cause of the challenged employment action. Smith, 589 F.3d at 691; Ashley v. Bayhealth
Med Ctr., Inc., 869 F. Supp. 2d 544, 551 n.7 (D. Del. 2012). The Third Circuit has explained
that Gross stands for the proposition that it is improper to shift the burden of persuasion
(including the burden of proving "but for" causation) to the defendant in an age discrimination
case; it has noted, however, that McDonnell Douglas does not do this, and instead shifts only the
burden of production between the plaintiff and employer at each of its three stages. Smith, 589
F.3d at 691; Ashley, 869 F. Supp. 2d at 551 n.7.
10

1291622, at *2; Ashley v. Bayhealth Med. Ctr., Inc., 869 F. Supp. 2d 544, 551 (D. Del. 2012).
While the above-stated form of prima facie case is ordinarily applicable to ADEA claims, rigid
adherence to a specific form of prima facie proof has been eschewed by the Supreme Court and
by the United States Court of Appeals for the Third Circuit. Ashley, 869 F. Supp. 2d at 551
(citing cases). Accordingly, '"the precise elements of a plaintiffs prima facie case may vary with
the particular circumstances' of a case." !d. at 552 (quoting Waldron v. SL Indus., Inc., 56 F.3d
491,494 (3d Cir. 1995)).
For purposes of the present motion, the parties do not dispute that Plaintiff can establish
the first three elements of the prima facie case, in that Plaintiff is over 40 years old, was qualified
for her position, and was terminated. Defendant contests, however, that Plaintiff has sufficiently
established the fourth element. (D.I. 33 at 14-16; D.l. 38 at 2-5)
As to that element, here there is no suggestion in the record that Plaintiff was replaced by
a younger employee. In such a circumstance, our Court has explained:
[A] more generic fourth element is appropriate. Specifically, a showing
that the circumstances of the adverse employment action gives rise to an
inference of age discrimination would be sufficient to satisfy the fourth
element of a prima facie case .... A common circumstance[] giving rise to
an inference of unlawful discrimination ... [is] the more favorable
treatment of similarly situated colleagues outside of the relevant class ....
Ultimately, plaintiffs evidentiary burden at [the prima facie] stage is rather
modest: it is to demonstrate to the court that the plaintiffs factual scenario
is compatible with discriminatory intent-i.e., that discrimination could be
a reason for the employer's action.
Ashley, 869 F. Supp. 2d at 552 (internal quotation marks and citations omitted); see also Johnson
v. St. Luke's Hosp., Civil Action No. 06-3417,2007 WL 3119845, at *5 (E.D. Pa. Oct. 23, 2007);
Bullock v. Children's Hosp. of Phi/a., 71 F. Supp. 2d 482, 487 (E.D. Pa. 1999). Here, Plaintiff

11

asserts that she has established the fourth element of her prima facie case because "persons
outside her protected classification were treated more favorably[.]" (D.I. 36 at 14) More
specifically, she asserts that "Nurses A, B, and C did not suffer any formal discipline in response
to patient complaints, while Plaintiff was suspended and then terminated for patient complaints
lodged against her in the last four months of2010." (ld.)
The Third Circuit has explained that "similarly situated" employees need not be
"identically situated" in order to be considered valid comparators, but that they must nevertheless
be similar in "all relevant respects." Opsatnik v. Norfolk S. Corp., 335 F. App'x 220, 223 (3d
Cir. 2009) (internal quotation marks and citation omitted); see also Haskins v. Christiana Care
Health Servs., 701 F. Supp. 2d 623, 629 (D. Del. 2010). While the factors relevant to this

analysis depend on the context of each case, often a showing that a person is similarly situated
"includes [evidence that] the two employees dealt with the same supervisor, were subject to the
same standards, and had engaged in similar conduct without such differentiating or mitigating
circumstances as would distinguish their conduct or the employer's treatment of them."
Opsatnik, 335 F. App'x at 223 (internal quotation marks and citations omitted); see also Haskins,

701 F. Supp. 2d at 629.
In assessing whether Plaintiff can demonstrate that Nurse A, B or C is an appropriate
comparator, the decision in Haskins v. Christiana Care Health Servs., 701 F. Supp. 2d 623 (D.
Del. 2010) is instructive. In Haskins, the plaintiff, an African-American patient guide in the
maternity ward at the defendant's hospital, alleged that she was wrongfully terminated on the
basis of her race. Haskins, 701 F. Supp. 2d at 624-25, 628. From July 2003, when she started
her work as a patient guide, through March 2004, the plaintiff accumulated seven violations of
12

defendant's lateness policy and a number of third-party complaints from visitors and patients
who had expressed dissatisfaction with her rude demeanor toward them. !d. at 625. Eventually,
the plaintiff was placed on "Decision Making Leave" (or "DML") due to these infractions-the
final level of discipline prior to termination under the terms of defendant's disciplinary policy.

!d. at 625-26. Thereafter, plaintiff received two additional complaints regarding plaintiffs
professional demeanor and various additional violations for lateness; these additional infractions
resulted in plaintiff being placed on two different "Action Plan[s.]" !d. at 626. Each time she
was placed on such a plan, plaintiff was told that any future discipline could result in termination
of her employment. !d. In November 2006, after plaintiff was one minute late to work, she was
found in violation of the Action Plans and was terminated. !d. 3
In reviewing plaintiffs claim, the Haskins Court determined that plaintiff could not make
out a prima facie case of racial discrimination, in part because she had not identified any
similarly situated employees who were treated more favorably than her. Id at 628. Plaintiff had
pointed to two other non-African American patient guides as potential comparators, whom
plaintiff claimed had been guilty of multiple infractions of the lateness policy, but were never
disciplined as a result. Jd The Haskins Court found, however, that the employment
characteristics of the potential comparators were "sufficiently dissimilar" from that of plaintiff,
as the potential comparators did not possess "a similarly lengthy disciplinary record in
comparison to [plaintiff]." !d. at 629-30. It noted that neither proposed comparator had been

3

The plaintiffs termination came despite the fact that she had received generally
positive employment evaluations during this period, indicating that she was performing at a
satisfactory to above-average level, and despite the fact that she had received positive feedback
from certain patients and visitors. Haskins, 701 F. Supp. 2d at 626.
13

placed on DML, whereas plaintiff had been placed on that status and then received two separate
action plans due to her "serial violations" of the lateness policy. !d. at 630. The Haskins Court
explained that plaintiff had also not "cit[ed] to any evidence in the record to demonstrate that
either [proposed comparator] had a comparable number of lateness or other disciplinary
infractions" and that this was particularly relevant "in light of the fact that once [plaintiff] was
placed on DML and/or an Action Plan, she was subject to termination for a single infraction
under the Disciplinary Policy." !d.; see also Maull v. Div. ofState Police, Dept. Of Pub. Safety,
State of Del., 141 F. Supp. 2d 463, 479 (D. Del. 2001) (finding that circumstances of each

proposed comparator were not sufficiently similar to plaintiffs circumstances, where none of the
comparators had disciplinary records similar in length or scope to plaintiffs disciplinary record,
and none were on probation at the time of their misconduct, as was plaintiff), aff'd 39 F. App'x
769 (3d Cir. 2002).
In this case, as in Haskins, even if the identified conduct of the proposed comparators is
deemed similar to that triggering Plaintiffs dismissal, the prior disciplinary records of those
comparators is significantly different from Plaintiffs history. Indeed, it is so different, in so
many different ways, that a reasonable jury could not conclude that Nurse A, B or C were
similarly situated to Plaintiff.
For example, here the record does not indicate that any of the proposed comparators were
the subject of a long history of complaints about rude behavior; in contrast, Plaintiffs
disciplinary record consisted of fourteen violations-not including the December 2010 incident
that resulted in her termination-many of which involved allegations of rude behavior directed to

14

patients or staff members. 4 Although some of the complaints regarding Plaintiffs alleged rude
behavior were lodged long ago, others were made in closer proximity to Plaintiffs termination,
beginning with the 2006 complaint by Plaintiffs co-worker in the Pharmacy Department. (D.I.
34 at 50-51) Indeed, even just focusing on 201 0-the final year of Plaintiffs employment with
Defendant-staff and patients complained about Plaintiffs rude or unprofessional behavior
regarding at least four separate incidents (i.e., the September 5 incident involving the Telemetry
Department; the two separate incidents on September 8 involving J.Y. and R.H.; and the
December 25 incident involving M.J.). 5 These incidents occurred in a short four-month
span-essentially coming one right after the other.
In contrast, Nurse A was the subject of just two patient complaints (coming about six
months apart) while Nurse A was in her first year of employment as Bayhealth nurse, and Nurses
B and C were each involved in a single incident in which patient or patient's family member
complained about their conduct. (D.I. 37 at B35-B42) The glaring difference in the scope of
Plaintiffs and her proposed comparators' disciplinary records is alone sufficient for the Court to

4

(See, e.g., D.l. 34 at 86 (October 3, 1998 verbal warning for: "Rude to staff'; July
14, 1989 written violation for, inter alia: "Negative behaviors"; November 28, 1989 suspension
for: "Insensitive remarks auditory to patients"; January 4, 1990 written violation for: "Rude and
unsympathetic toward patient and family"; May 5, 2000 suspension for, inter alia: "derogatory
comments in presence of[] staff'; November 20, 2006 verbal warning for: "Rude and offensive
behavior"; and September 14, 2010 suspension for, inter alia: "Unprofessional conduct" and
"Rude behavior"))
5

Plaintiffs December 2010 performance evaluation noted yet another encounter
with a patient who was left with the impression that Plaintiff lacked compassion and did not care
about her, after Plaintiff rejected the patient's request for a second lunch tray of her favorite
meal. (D.I. 34 at 48; see also id. at 66-67) While it does not appear that Plaintiff was formally
disciplined with respect to this incident, Boyer and the Director of Patient Care Services
discussed the incident with Plaintiff, emphasizing that nursing is a service profession and
patients needed to be served with care and compassion. (!d. at 48)
15

conclude that these other nurses cannot be deemed appropriate comparators. See Kuzma v.

MBNA Institutional PA Servs., LLC, NO. 2:10cv1433, 2013 WL 808837, at *6-7 (W.D. Pa. Mar.
5, 2013) (stating that in order for a co-employee to be an appropriate comparator, he or she
should "possess a similar disciplinary record" as the plaintiff, and finding proposed comparator's
disciplinary record to be dissimilar, where plaintiff had "a history of documented incidents of
inappropriate and unprofessional conduct" while proposed comparator, at most, had isolated
incidents of less severe, unreported misconduct); Briggs v. Pa. Dept. ofTransp., No. 02: 07-cv0118, 2009 WL 2475455, at *8 (W.D. Pa. Aug. 7, 2009) (where plaintiff had extensive
disciplinary record, including nine suspensions, while purported comparators had received only
counseling for their infractions and had no prior disciplinary action taken against them, plaintiffs
record was "a differentiating circumstance which prevents any of the [purported comparators]
from being deemed 'similarly situated' to [p]laintiff').
Additionally, another significant difference sets Plaintiff apart from the proposed
comparators: she, like the plaintiff in Haskins, was on the final step of Defendant's progressive
discipline policy at the time of her termination. (D.I. 34 at 15)6 In conjunction with Plaintiffs
five-day suspension in September 2010 (which resulted from the three separate preceding
complaints of inappropriate behavior in that month), Defendant warned Plaintiff that "[a]ny
additional policy infractions will result in an immediate termination." (D.I. 34 at 53; see

also id. at 15) Just a few months later-and a mere two days after Plaintiff had received her

6

While the progressive disciplinary policy itself does not appear to be a part of the
record before the Court, Plaintiff confirmed in her deposition testimony that such a policy existed
and that she was on its final step (i.e., that she would be terminated if she engaged in similar
incidents of behavior to those that had precipitated this step). (D .I. 34 at 15)
16

2010 "below expectations" performance evaluation, during which she verbalized her
understanding of the need to improve her customer service skills-Plaintiff again faced a similar
complaint. (!d. at 39-50, 55-57) This was the December 25 complaint from M.J. about
Plaintiffs lack of compassionate care, which M.J. termed a "horrible experience." (!d. at 55-57)
In contrast, there is no evidence that Nurses A, B, or C were on the final step of
Defendant's disciplinary policy (or were anywhere near such a stage) at the time in which they
received complaints regarding their interpersonal communications. Thus, since Plaintiff (unlike
those other nurses) was on the precipice of termination at the time of the infraction-at-issue, it
stands to reason that her December 201 0 violation resulted in an outcome dissimilar from any
discipline that the other nurses faced. See, e.g., Haskins, 701 F. Supp. 2d at 630; Coleman v.
Blockbuster, Inc., Civil Action No. 05-4506,2008 WL 2622912, at *10 n.lO (E.D. Pa. June 30,

2008) (plaintiff and co-worker were not similarly situated, even though they had committed
identical policy violations, where proposed comparator had no disciplinary history at time of the
violation, while plaintiff had already received two final warnings, such that the "difference
between [plaintiff and the co-worker's] disciplinary histories explains the differing treatment of
the two and shows that [employer] followed its own policies").
As set out above, Defendant assertedly made the decision to terminate Plaintiff based not
on a single isolated incident, but because of a "pattern" of rude behavior that persisted in spite of
discipline, counseling, and even a final warning. (See, e.g., D.I. 34 at 85; D.I. 37 at B33) Yet
since Nurses A, B and C had different and vastly dissimilar disciplinary histories than did
Plaintiff, any disparate treatment they received for a similar infraction could not be said to give
rise to an inference of discriminatory motive. Therefore, Plaintiff cannot rely on these
17

comparators to make out the fourth prong of her prima facie case. See, e.g., Maull, 39 F. App'x
at 773-74 (affirming district court's finding that plaintiffs proffered comparators were not
similarly situated, where plaintiff had attempted to make comparisons on an incident-to-incident
basis, but the record reflected that defendant terminated plaintiff "based not only on the events of
October 10-13, 1998, but also on his probationary status and his disciplinary record"); see also

Haskins, 701 F. Supp. 2d at 630; Kuzma, 2013 WL 808837, at *7. 7 As a result, the Court
recommends that summary judgment be granted in favor of Defendant with respect to Plaintiffs
claim. See Ashley, 869 F. Supp. 2d at 552 n.9 (noting that a plaintiffs "[f]ailure to make out a
prima facie case will result in a judgment for the defendant") (citing Pivirotto v. Innovative Sys.,

Inc., 191 F.3d 344, 352 (3d Cir. 1999)).

2.

Pretext

Even assuming that Plaintiff had met her burden as to her prima facie case, however, the
grant of summary judgment would still be appropriate. It is not disputed that Defendant has
provided a legitimate, non-discriminatory reason for Plaintiffs termination (i.e., that Plaintiffs
pattern of alleged insensitive, inappropriate and uncaring behavior toward co-workers and
patients was the impetus for her discharge). (D.I. 33 at 16-17; D.l. 36 at 16) Once an employer
does so, the plaintiff then carries the burden of proving that this reason was a pretext for
discrimination. Bowman, 2013 WL 1291622, at *3. In order to show pretext in discrimination

7

The Court's conclusion here is further reinforced by the fact that, in its briefing,
Plaintiff makes no extended legal argument in support of the claim that Nurses A, B, or C are
actually "similarly situated" to Plaintiff, and cites to no case law in support of that assertion.
Rather, Plaintiff simply states her conclusion that "persons outside her protected classification
were treated more favorably" because they "did not suffer any formal discipline in response to
patient complaints." (D.I. 36 at 14; see also id. at 17)
18

cases, Plaintiff must "point to some evidence, direct or circumstantial, from which a factfinder
could reasonably either (1) disbelieve the employer's articulated legitimate reasons; or (2)
believe that an invidious discriminatory reason was more likely than not a motivating or
determinative cause of the employer's action." Fuentes, 32 F.3d at 764; Bowman, 2013 WL
1291622, at *3. In this Circuit, this two-pronged test is known as the Fuentes test. Ashley, 869
F. Supp. 2d at 553.
Plaintiff makes four basic arguments with respect to pretext, all directed at prong one of

Fuentes. That is, Plaintiff attempts to demonstrate that a reasonable jury, assessing this evidence,
could find that Defendant's proffered legitimate, non-discriminatory reason "was not merely
wrong, but ... was 'so plainly wrong that it cannot have been the employer's real reason[,]"'

Jones v. Sch. Dist. ofPhila., 198 F.3d 403,413 (3d Cir. 1999) (quoting Keller v. Orix Credit
Alliance, Inc., 130 F.3d 1101, 1109 (3d Cir. 1997)), and that instead age discrimination was the
"but for" cause of her termination, (D.I. 36 at 15 & n.6). The Court disagrees, finding that each
of these four arguments, either individually or taken together, are insufficient to support denial of
the Motion.
First, Plaintiff argues that Defendant is "attempting ... to bolster its proffered reasons for
Plaintiffs termination by claiming that her termination had something to do with alleged
negative interactions with co-workers." (/d. at 16) Plaintiff points to her January 2011
termination letter, and asserts that its contents make clear that the "proffered reason for [her]
termination was solely her alleged deficient patient care." (!d.) Therefore, according to Plaintiff,
when Defendant now relies on negative interaction with co-workers (like the September 5, 2010
incident with a technician in the Telemetry Department) to further bolster its reasons for
19

termination, this is an example of shifting explanations that suggest pretext. (!d.)
Plaintiffs argument is belied by the evidence of record. The January 2011 termination
letter states that Plaintiff was terminated "for failure to deliver care in a manner consistent with
organizational standards[.]" (D.I. 37 at B33) By way of further explanation, the letter notes that
an investigation concluded that Plaintiff was "insensitive to patient needs and lacked compassion
necessary to promote an effective patient/staff relationship," but that the decision was also
informed by Plaintiffs prior "pattern of similar behavior during [her] employment with
Bayhealth" such that it was "unlikely [Plaintiffs] behavior would improve[.]" (!d.) Similarly,
the Employee Corrective Action Record referencing Defendant's decision to discharge Plaintiff
states that "[d]uring [Plaintiffs] tenure at Bayhealth [she] ha[s] developed a pattern of
insensitive, inappropriate, and uncaring behavior." (D.I. 34 at 56) It is clear from the record that
prior complaints of Plaintiffs rudeness to co-workers were a part of the "pattern" of conduct that
informed Plaintiffs 2011 termination. (D.I. 37 at B34 (January 2011 termination letter citing
"pattern of insensitive behavior" during Plaintiffs tenure, evident in Plaintiffs "personnel
record[,]" as supporting termination decision); see also D.l. 34 at 72-75 (Boyer citing evidence of
prior interactions with peers as part of "pattern" of behavior informing Plaintiffs termination);
id. at 85-86 (Defendant Memorandum citing Plaintiffs "record" as part of the basis for her
termination, and thereafter listing Plaintiffs disciplinary record, including incidents with coworkers))
Second, Plaintiff argues that given the strong reviews she received for her patient care in
the decade leading up to her termination, the assertion that Defendant terminated her for patient
complaints made in the last four months of her employment is unworthy of belief. (D.I. 36 at 16)
20

It is well-settled, however, that "positive evaluations prior to [a plaintiffs] termination, standing

alone, [are] not sufficient to support an inference of pretext." Haskins, 701 F. Supp. 2d at 632-33
(citing cases). Here, as in Haskins, the fact that Plaintiff had received positive feedback with
respect to certain aspects of her employment in the past did not exempt her failure to comply
with Defendant's "Five Star Standards." !d.
Additionally, here the nature of those prior positive evaluations are clearly juxtaposed
with the decidedly less positive evaluations that Plaintiff received in 2009 ("meets expectations")
and 2010 ("below expectations"). (D.I. 37 at B16-17; B28-B31); see Jones v. United Parcel
Service, Inc., No. 03-0284-CV-W-GAF, 2005 WL 1009572, at *19 (W.D. Mo. Apr. 7, 2005)

("While ... positive performance evaluations [are] a powerful indicator of satisfactory
performance, an employer is free to rely more heavily on recent performance than past
performance."). Indeed, co-worker and patient complaints of Plaintiffs rude and insensitive
behavior were the very reasons why Plaintiffs formerly positive performance evaluations grew
more negative in the months and years leading up to her termination. (D.I. 37 at B17 (2009
evaluation citing fact that Plaintiff had "little patience for[] co-workers who do not share her
work ethic[,]" needed to be "mindful of how her words and actions come across to her peers[,]"
was "intimidating" and "comes across as hostile to other members of the healthcare team"); D.l.
34 at 39-51 (2010 evaluation setting out the various 2010 incidents and describing how they
contributed to a "below expectations" rating)) Contrary to Plaintiffs argument, Plaintiffs
evaluation history (and how it changed over time), bolsters Defendant's legitimate nondiscriminatory reason for termination.
Third, Plaintiff argues that Defendant failed to take into account other information
21

regarding the September 201 0 complaints from R.H. and J. Y. before deciding to terminate
Plaintiff-particularly a letter written by a third patient, asserting that these allegations were
false. (D.I. 36 at 8, 16-17; D.l. 37 at B23) As an initial matter, even if this letter could properly
be considered at this stage, (D .I. 3 8 at 8-9), there is little evidence in the record regarding it. In
terms of explaining how the letter is asserted to evidence pretext, Plaintiff cites only to a portion
of Boyer's deposition. (D.I. 36 at 8, 16-17) That portion of the deposition transcript, however,
indicates that Boyer could not recall at the time of the deposition whether or not she had seen the
letter, or had shared it with other members of Defendant's leadership team, prior to Plaintiffs
termination. (D.I. 34 at 72) This record does not clearly support Plaintiffs assertion that
Defendant had the letter in its possession and then "failed to take [it] into account" before firing
Plaintiff. (D.I. 36 at 16-17)8 And more broadly, the record otherwise confirms that multiple
decision-makers were involved in the decision to terminate Plaintiffs employment, and that they
considered a compilation of evidence (including Plaintiffs own written and verbal statements,
the patient complaints, statements by Plaintiffs colleagues, and Plaintiffs personnel file) before
doing so. (D.I. 34 at 59-60)
It is well-established a court may not "second-guess a company's business judgment or
decisional process"; the inquiry here, instead, is whether the asserted rationale for termination is
so implausible that it is unworthy of credence. See Garvin v. Progressive Cas. Ins. Co., No.
5:08-cv-3758, 2010 WL 1948593, at *7 (E.D. Pa. May 10, 2010) (rejecting plaintiffs argument
that decision maker's failure to review all of the documentation surrounding investigation prior

8

Indeed, the substance of Boyer's deposition testimony is the opposite: she
testified that if she had had the letter in her possession, she "would have" taken it into account in
deciding what discipline to impose on Plaintiff. (D.I. 34 at 72)
22

to terminating plaintiff established pretext); see also Ashley, 869 F. Supp. 2d at 555 ("[T]he
ADEA has not transformed courts into 'super-personnel department[s] that reexamine[] entities'
business decisions."') (quoting Brewer v. Quaker State Oil Refining Corp., 72 F.3d 326, 332 (3d
Cir. 1995)). Here, the scant evidence of record regarding the letter at issue provides no firm basis
to question the plausibility of Defendant's rationale for termination.
Fourth and finally, Plaintiff also cites to the assertedly more favorable treatment of
Nurses A, B, and Cas evidence of pretext. (D.I. 36 at 17) However, as the Court has explained,
these co-workers were not similarly situated to Plaintiff, and are thus not proper comparators.
Accordingly, even if Plaintiff had established a prima facie case, which she did not, she
has failed to put forth sufficient evidence from which a reasonable jury could conclude that the
purported reasons for Defendant's decision to terminate Plaintiff were a pretext for intentional
age discrimination. On this basis also, Defendant is entitled to summary judgment with respect
to Plaintiffs claim.
IV.

CONCLUSION

For the reasons set forth above, I recommend that Defendant's Motion for Summary
Judgment be GRANTED.
This Report and Recommendation is filed pursuant to 28 U.S.C. § 636(b)(l)(B), Fed. R.
Civ. P. 72(b)(1) and D. Del. LR 72.1. The parties may serve and file specific written objections
within fourteen (14) days after being served with a copy of this Report and Recommendation.
Fed. R. Civ. P. 72(b). The failure of a party to object to legal conclusions may result in the loss
of the right to de novo review in the district court. See Henderson v. Carlson, 812 F.2d 874, 87879 (3d Cir. 1987); Sincavage v. Barnhart, 171 F. App'x 924, 925 n.l (3d Cir. 2006).
23

The parties are directed to the Court's Standing Order in Non-ProSe Matters For
Objections Filed Under Fed. R. Civ. P. 72, dated November 16, 2009, a copy of which is
available on the District Court's website, located at http://www.ded.uscourts.gov.

Dated: September 30, 2013
Christopher J. Burke
UNITED STATES MAGISTRATE JUDGE

24