CIECKA v. THE COOPER HEALTH SYSTEM

Filing 44

OPINION. Signed by Chief Judge Jerome B. Simandle on 2/14/2017. (dmr)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

MICHAEL CIECKA,

HONORABLE JEROME B. SIMANDLE
Plaintiff,
Civil Action
No. 15-4075 (JBS/KMW)

v.
THE COOPER HEALTH SYSTEM,

OPINION
Defendant.

APPEARANCES:
Ari R. Karpf, Esq.
Julia W. Clark, Esq.
Karpf Karpf & Cerutti PC
3331 Street Road, Suite 128
Two Greenwood Square
Bensalem, PA 19020
Attorneys for Plaintiff
Christine P. O’Hearn, Esq.
Brown & Connery, LLP
360 Haddon Avenue
P.O. Box 539
Westmont, NJ 08108
Attorney for Defendant

SIMANDLE, Chief Judge:
INTRODUCTION
In this employment discrimination case, Plaintiff Michael
Ciecka alleges that he was wrongfully terminated from his
position as a radiology technologist with Defendant The Cooper
Health System because of his age. Plaintiff avers that he was
subjected to age discrimination, retaliation, and a hostile work

environment in violation of the Age Discrimination in Employment
Act, 29 U.S.C. § 621 et seq., and the New Jersey Law Against
Discrimination, N.J.S.A. 10:5-1 et seq. The Cooper Health System
now moves before this Court for summary judgment on all of
Plaintiff’s claims. For the reasons that follow, the Court will
grant in part and deny in part Cooper’s motion.
BACKGROUND
Plaintiff Michael Ciecka (“Plaintiff”) was employed as a
full-time radiology technologist by The Cooper Health System
(“Cooper”) from January 24, 2000 until his termination on
December 11, 2014. (Deposition of Michael Ciecka (“Ciecka Dep.”)
[Exhibit A to Certification of Christine P. O’Hearn (“O’Hearn
Cert.”)] at 41:21, 295:22-25.) Plaintiff was 52 years old at the
time of his termination. (Id. at 11:10-12.) At that time, only
four or five staff technologists at Cooper were older than
Plaintiff, in a group of about 45 employees. (Id. at 81:6-84:8.)
Radiology Technologists at Cooper
Radiology technologists at Cooper are responsible for
performing diagnostic radiographic procedures, placing patient
testing orders, completing necessary paperwork and logs, and
maintaining competency in a variety of clinical settings,
including the operating room, emergency room, trauma, general,
portable, and fluoroscopy. (Ciecka Dep. at 61:13-62:8; see also
Radiology Technologist Job Description [Ex. B to O’Hearn
2

Cert.].) Most staff technologists rotate through the different
departments, and work is assigned by weekly schedules.
(Deposition of Cindy Alessandrini [Ex. C to O’Hearn Cert.] at
15:6-18.) A few technologists are assigned exclusively to the
operating room and are apparently held to a higher standard of
competency than those who merely rotate through. (Deposition of
Ron Colna (“Colna Dep.”) [Ex. D to O’Hearn Cert.] at 134:8-18.)
Day-to-day, cases in the operating room are assigned by a
schedule set in the morning, subject to change if emergency
cases came in. (Id. at 49:4-51:7.) The parties dispute how much
control staff technologists have over the cases and procedures
they perform. (Compare Defendant’s Statement of Material Facts
(“Def. SMF”) ¶ 71 with Plaintiff’s Statement of Material Facts
(“Pl. SMF”) ¶ 71, ¶¶ 170-176.)
There are two pieces of equipment in particular that
technologists use at Cooper: the O-arm and the C-arm. (Ciecka
Dep. at 137:2-138:9; see also Cooper University Radiology Job
Specific Responsibilities and Competency Review [Ex. F to
O’Hearn Cert.].) Both pieces of equipment have been used in
Cooper’s operating room since at least 2010, and the
competencies and requirements for operation did not change
during the course of Plaintiff’s employment. (Deposition of
Andrea Mullison [Ex. K to Plaintiff’s Statement of Material
Facts (“Pl. SMF”)] at 36:15-37:2.)
3

Technologists’ equipment skills are evaluated during their
initial 3-month probation. (Deposition of Joseph LeBender
(“LeBender Dep.”) [Ex. H to O’Hearn Cert.] at 25:9-20.) Once a
technologist passes probation, he is presumed to be competent in
all of the required equipment and clinical departments. (Id.)
Thereafter, technologists are reviewed annually by their
supervisors, with a focus on a different skill each year. (Id.
at 24:19-25:8.) The Cooper Performance Evaluation form provides
space to give employees a “core value rating” and an “overall
evaluation” on a scale of “does not meet expectations (1)” to
“outstanding (5),” along with comments from their supervisor.
(See Performance Evaluation Forms Dated 2010 through 2014 [Ex.
M, N, O, P & Q to O’Hearn Cert.]; see also Performance
Evaluations [Ex. F & S to Pl. SMF].) Those employees rated
“needs improvement” or “does not meet expectations” require an
Action Plan for Improvement of Employee Performance, detailing a
description of the supervisor’s concerns, a plan for
improvement, and a progress review. (See id.) Employees are
rated on a 5-point scale on core values including excellence in
service, ownership, integrity, innovation, teamwork, and
respect; their job-specific responsibilities and competencies
are also rated on a 5-point scale, for customer service/patient
care, policy and procedure compliance, miscellaneous duties,
radiation safety, workflow and patient care, image QC and
4

improvement, area competency, and computer skills. (See id.) The
Performance Evaluation form also provides space for the
supervisor to identify specific skills enhancement, training,
and education an employee should undertake to improve job
performance and set some goals and objectives for the employee’s
next year. (See id.) Performance evaluations are signed by the
employee and his or her manager, who may or may not be the
“evaluator” listed on the form. (See id.)
The staff technologists at Cooper are overseen by two lead
technologists; for most of the duration of Plaintiff’s
employment, they were Ronald Colna and Joseph LeBender.
(LeBender Dep. at 27:7-18.) Mr. Colna was promoted to the head
of the department in the fall of 2014 and replaced by Cindy
Alessandrini. (Id. at 27:11-12, 28:18-22.) Both lead
technologists have the same responsibilities over the staff
technologists and divide their authority between day and night
shifts. (Id. at 27:24-28:12.) Because Plaintiff routinely worked
day shifts, he reported to Mr. Colna until the fall of 2014,
when Mr. LeBender took over the day shift lead position. (Id. at
31:13-24.)
Cooper has a “progressive” disciplinary policy by which an
employee is issued a verbal and written warnings before
suspension before termination. (Id. at 29:3-5, 30:12-23.) A lead
technologist alone does not have the authority to terminate an
5

employee without input from a “director level or higher.” (Id.
at 29:24-30:5.)
Plaintiff’s Performance Until June 2014
The parties dispute how to describe Plaintiff’s job
performance as a radiation technologist before June 2014. Mr.
Colna testified that he noticed as early as 2006 that Plaintiff
avoided complex and invasive cases, and that physicians and
other staff had been complaining to him about Plaintiff for
years. (Colna Dep. at 63:16-66:12; see also Deposition of
Matthew Harrington (“Harrington Dep.”) [Ex. G to O’Hearn Cert.]
at 52:3-53:2.) The parties dispute if and how Plaintiff was ever
made aware of these complaints. (Compare Def. SMF ¶ 35 with Pl.
SMF ¶ 25.) It is undisputed that Plaintiff was subjected to some
disciplinary actions between 2009 and 2012 unrelated to the
issues that allegedly gave rise to his 2014 Performance
Improvement Plan. (See Discipline Forms [Ex. I, J, K, & L to
O’Hearn Cert.].)
However, Plaintiff points out that his performance
evaluations were strong, and he enjoyed a close personal
relationship with Mr. Colna. Specifically, Plaintiff’s
performance was overall rated “exceeds expectations” in both
2013 and 2014, and he was given mostly or completely scores of 4
out of 5 for his competency in operating room technology and for
all “core values and actions.” (See Plaintiff’s 2014 Performance
6

Evaluation and Plaintiff’s 2013 Performance Evaluation.) None of
the issues raised in the 2014 Performance Improvement Plan were
ever raised in his previous performance evaluations. (Colna Dep.
at 107:21-108:6.)
The June 2014 Grievance and Written Complaint
The crux of Plaintiff’s claims is that the circumstances of
his employment changed drastically after events that occurred in
June of 2014. On June 5, 2014, Plaintiff received a written
warning for using offensive language in a conversation about a
co-worker. (Progressive Discipline Form dated June 5, 2014 [Ex.
R to O’Hearn Cert.].) He filed a grievance challenging the
warning on June 9, 2014. (Grievance dated June 9, 2014 [Ex. U to
O’Hearn Cert.]; see also Ciecka Dep. at 178:21-179:1.)
That same day, Plaintiff sent a separate letter to Cooper’s
Human Resources Department. (Complaint [Exhibit Y to O’Hearn
Cert.].) Plaintiff told Human Resources that Mr. LeBender, his
“immediate supervisor” had “made references about [his] age”
while discussing the incident that gave rise to his June 5
warning. (Id.) He confided that “I can’t help but feel as though
Joe LeBender has me now in ‘his crosshairs,’ and I fear that my
position here is in jeopardy . . . .” (Id.) Jill Melchiorre in
Human Resources acknowledged Plaintiff’s discrimination
complaint and met with him on July 9, 2014 to discuss it.
(Deposition of Jill Melchiorre (“Melchiorre Dep.”) [Ex. AA to
7

O’Hearn Cert.] at 22:5-15; see also Notes from Ms. Melchiorre
[Ex. H to Pl. SMF].) Ms. Melchiorre discussed the complaint with
Mr. LeBender in July and he admitted to commenting on
Plaintiff’s age, although he claimed such comments were in the
context of “counseling Mr. Ciecka on performance issues.”
(Melchiorre Dep. at 35:2-37:13; see also LeBender Dep. at 73:874:6.) As Plaintiff points out, Mr. LeBender presented an
inconsistent timeline in his recollection of these events,
seeming to confuse his June comments with Plaintiff’s August
Performance Improvement Plan. (See Pl. SMF ¶ 49.) The parties
dispute whether any other members of the management team –
especially Mr. Colna - knew about Plaintiff’s discrimination
complaint. (Compare Def. SMF ¶¶ 52-53 with Pl. SMF ¶¶ 52-53.)
The parties also dispute whether Mr. LeBender’s age-related
comments were an isolated incident or whether, as Plaintiff
testified, he made comments about other employees and continued
to do so during Plaintiff’s Performance Improvement Plan.
(Ciecka Dep. at 87:1-89:5.)
The 2014 Performance Improvement Plan
A few weeks later, an incident in the operating room
apparently led to management taking concrete action against
Plaintiff, although the parties dispute what exactly happened.
(Compare Def. SMF ¶¶ 56-63 with Pl. SMF ¶¶ 56-63.) Cooper
alleges that Plaintiff created a “patient safety issue” by
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asking an inexperienced recent graduate, Ryan DeLucas, to cover
an O-arm procedure in the operating room that Plaintiff was
supposed to take over from Matthew Harrington, one of the
radiology technologists primarily assigned to the operating
room. (Harrington Dep. at 90:23-92:5.) Apparently, Plaintiff
told Mr. DeLucas that he didn’t know how to use the O-arm.
(Email string between Ryan DeLucas and Ron Colna [Ex. CC to
O’Hearn Cert.]; see also Colna Dep. at 101:4-18.) Mr. Harrington
had to walk Mr. DeLucas through the procedure and immediately
called Mr. Colna because he “felt what Mike did was unsafe.”
(Harrington Dep. at 94:7-24.) Plaintiff asserts that he only
instructed Mr. DeLucas to take that case because the operating
room was short-staffed at the time and Plaintiff had to go
handle another case, that he did not know that this particular
case was an O-arm case, and that he never told Mr. DeLucas that
he did not know how to use the O-arm. (Ciecka Dep. at 206:13208:5.)
Mr. Colna asserts that he decided to put Plaintiff on a
Performance Improvement Plan (“the PIP” or “the Plan”) because
of this incident. (Colna Dep. at 100:23-101:3, 111:9-13.) He
testified that the decision to place Plaintiff on a PIP after
that incident was a joint decision between him, Mr. LeBender,
Ms. Alessandrini, and Human Resources and that he drafted the
Plan himself. (Id.)
9

According to documentation on the PIP, Plaintiff “struggled
with maintaining a level of competency in the OR and other
Diagnostic Imaging areas.” (See PIP [Ex. DD to O’Hearn Cert.].)
According the Plan, the management team was concerned that
Plaintiff did “not have the confidence level or skill set to
work independently” with the O-arm and that “[i]t has been
documented that [Plaintiff] appears to get confused and is
unable to perform basic Task” with the C-arm. (Id.) The Plan
directed that Plaintiff would be assigned to the Operating Room
and to “closely work with” one of the designated OR
technologists in order to familiarize himself with the
equipment, that Plaintiff and all other technologists would be
required to attend a workshop on the O-arm, and that Plaintiff
would meet regularly with a member of the Management Team to
evaluate his progress, with the goal of “improving his clinical
skills and as a result increase his level of self-confidence.”
(Id.) Plaintiff had to fill out daily log sheets to track what
procedures he worked on during his PIP and meet regularly with
Mr. Colna to review his progress. (Ciecka Dep. at 103:3-20,
218:5-18.) The parties dispute whether Mr. Colna alone, or Mr.
Colna and Mr. LeBender together, were responsible for monitoring
Plaintiff’s progress on the PIP. (Compare Def. SMF ¶¶ 75, 77
with Pl. SMF ¶¶ 75, 77.) The PIP was originally scheduled to be

10

in place from August 14, 2014 through October 17, 2014, but it
was extended to November 7, 2014. (Melchiorre Dep. at 62:7-21.)
The parties further dispute how Plaintiff performed under
the PIP. According to Cooper, Plaintiff continued to avoid O-arm
procedures and showed no initiative in trying to gain exposure
to new types of cases. (Harrington Dep. at 66:6-68:3.) Mr.
Harrington and Andrea Mullison, another technologist assigned
primarily to the operating room, both told Mr. Colna that they
did not think Plaintiff was improving during his PIP and that he
seemed nervous in the operating room. (See Harrington Dep. at
73:24-6; Mullison Dep. at 89:16-90:8, 141:3-8.) Ms. Alessandrini
testified that she, too, had the opportunity to observe
Plaintiff in the operating room during his PIP and that he could
not use the O-arm and had difficulty with the C-arm.
(Alessandrini Dep. at 44:21-46:11, 52:5-53:19.) It appears that
Plaintiff did not attend training sessions held by Ms. Mullison
for all of the staff technologists on the O-arm. (Mullison Dep.
at 118:2-22.) Physicians complained about Plaintiff’s
performance and apparently stated that they did not want him
working on their cases. (Harrington Dep. at 76:7-20, 99:5-100:8,
113:7-13; Certifications from Drs. Bussey, Graf, Yocom, Dolch,
and Mashru [Ex. KK, MM, OO, PP, and QQ to O’Hearn Cert.].) It is
undisputed that Plaintiff met with Mr. Colna three times during
the PIP, but Plaintiff disputes the accuracy of Mr. Colna’s
11

notes indicating that Plaintiff was not improving. (Compare Def.
SMF ¶ 103 with Pl. SMF ¶ 103.)
Plaintiff asserts that he was forced to adhere to rules
“that no one else had to adhere to” under his PIP, despite the
fact that his issues with the O-arm and C-arm were common among
all staff technologists besides the technologists assigned
primarily to the operating room. (Ciecka Dep. at 98:1-3;
Harrington Dep. at 79:8-11; Mullison Dep. at 23:4-24:11, 92:2293:4; Colna Dep. at 55:6-58:2.) Furthermore, Plaintiff denies
that he struggled with O-arm and C-arm procedures during his
PIP, and asserts that Mr. Harrington, Ms. Mullison, and Ms.
Alessandrini did not spend sufficient time with him in the
operating room to have the opportunity to realistically evaluate
his skills because he was usually in the operating room alone.
(Ciecka Dep. at 209:10-17, 213:20-214:18, 320:25-231:4;
Harrington Dep. at 74:17-21.) In fact, he believes that he was
not properly supported by the lead technologists during his PIP.
(See Pl. SMF ¶ 91.) He also asserts that it was very common for
physicians to complain about all of the radiology technologists
except for the ones permanently assigned to the operating room.
(Mullison Dep. at 26:20-28:23.) Finally, Plaintiff also notes
that he had no control over the assignments he took in the
operating room and that he did actually attend one of Ms.
Mullison’s training sessions. (Ciecka Dep. at 217:4-15.)
12

The November 2014 EEOC Complaint
Plaintiff filed a charge of discrimination with the EEOC on
November 18, 2014 alleging age discrimination due to Mr.
LeBender’s comments and his treatment under the PIP. (Charge
[Ex. RR to O’Hearn Cert.].) It is undisputed that he never told
anyone at Cooper that he filed the EEOC charge.
The December 2014 Termination
Plaintiff was terminated on December 11, 2014, at his last
meeting with Mr. Colna under the PIP. (Ciecka Dep. at 295:2225.) Mr. Colna and Ms. Alessandrini were present, and it is
undisputed that Human Resources approved of the decision to
terminate. (Colna Dep. at 144:15-21; Melchiorre Dep. at 69:814.) Plaintiff believes that Mr. LeBender, although not present
at the meeting, was part of the decision to terminate his
employment. (Colna Dep. at 138:4-139:7; Defendant’s Answers to
Plaintiff’s First Set of Interrogatories [Ex. M to Pl. SMF] at
No. 3.) According to Mr. Colna, Plaintiff was fired for failing
to improve under the PIP. (Id. at 135:1-138:10; see also
Performance Plan Improvement Time Line for Michael Ciecka [Ex.
TT to O’Hearn Cert.].) Mr. Colna relied on complaints from
physicians and feedback from Mr. Harrington, Ms. Mullison, and
Ms. Alessandrini, that “[Plaintiff] was still unable to perform
to the standard expectations that we hold for all technologists”

13

in coming to the decision that “the only other option we [had]
at this point [was] to terminate.” (Colna Dep. at 145:1-146:4.)
Plaintiff filed this two-count action against Cooper on
June 16, 2015, bringing claims for age discrimination,
retaliation, and hostile work environment work environment
pursuant to the ADEA and NJLAD. [Docket Item 1.] After the
parties exchanged discovery, Cooper filed the instant motion for
summary judgment. [Docket Item 28.] The motion is now fully
briefed and the Court will decide without holding oral argument
pursuant to Fed. R. Civ. P. 78.
STANDARD OF REVIEW
Federal Rule of Civil Procedure 56(a) generally provides
that the “court shall grant summary judgment if the movant shows
that there is no genuine dispute as to any material fact” such
that the movant is “entitled to judgment as a matter of law.”
FED. R. CIV. P. 56(a). A “genuine” dispute of “material” fact
exists where a reasonable jury’s review of the evidence could
result in “a verdict for the non-moving party” or where such
fact might otherwise affect the disposition of the litigation.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
Disputes over irrelevant or unnecessary facts, however, fail to
preclude the entry of summary judgment. Id.

Conclusory, self-

serving submissions cannot alone withstand a motion for summary
judgment. Gonzalez v. Sec’y of Dept. of Homeland Sec., 678 F.3d
14

254, 263 (3d Cir. 2012) (internal citations omitted). “When the
moving party has carried its burden under Rule 56(c), its
opponent must do more than simply show that there is some
metaphysical doubt as to the material facts.” Matsushita Elec.
Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586
(1986).
In evaluating a motion for summary judgment, the Court must
view the evidence in the light most favorable to the non-moving
party, here the Plaintiff, and must provide that party the
benefit of all reasonable inferences.

Scott v. Harris, 550 U.S.

372, 378 (2007); Halsey v. Pfeiffer, 750 F.3d 273, 287 (3d Cir.
2014).

However, any such inferences “must flow directly from

admissible evidence [,]” because “‘an inference based upon []
speculation or conjecture does not create a material factual
dispute sufficient to defeat summary judgment.’”

Halsey, 750

F.3d at 287 (quoting Robertson v. Allied Signal, Inc., 914 F.2d
360, 382 n. 12 (3d Cir. 1990); citing Anderson, 477 U.S. at
255).
DISCUSSION
The Age Discrimination in Employment Act (“ADEA”), 29
U.S.C. § 621 et seq., prohibits discrimination in employment
with respect to “compensation, terms, conditions, or privileges
of employment, because of such individual’s age.” 29 U.S.C. §
623(a). Under the New Jersey Law Against Discrimination
15

(“NJLAD”), N.J.S.A. 10:5-1 et seq., an employer may not
discriminate or take any unlawful employment practice “because
of . . . age.” N.J.S.A. 10:5-12(a). Both statutes also make it
unlawful for an employer to retaliate against any employee who
opposes any discriminatory employment practice, files a
complaint, or participates in an investigation, proceeding, or
litigation. 29 U.S.C. § 623(d); N.J.S.A. 10:5-12(d). Since
claims under the ADEA and NJLAD utilize the same analytical
framework, the Court will discuss the state and federal claims
together. Turner v. Schering-Plough Corp., 901 F.2d 335, 341 (3d
Cir. 1990).
A. Defendant Is Not Entitled to Summary Judgment on
Plaintiff’s Age Discrimination Claims
Counts I and II of the Complaint allege age discrimination
in violation of the ADEA and NJLAD. Liability for discrimination
“depends on whether the protected trait (under the ADEA age)
actually motivated the employer’s decision.” Hazen Paper Co. v.
Biggins, 507 U.S. 604, 610 (1993). A plaintiff must show that
his “age was the ‘but-for’ cause of the employer’s adverse
action.” Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 177
(2009). It is not enough to show that age was a “motivating
factor” in the employers’ decision; age must have a
“determinative influence.” Id. at 176 (quoting Hazen Paper Co.
v. Biggins, 507 U.S. 604, 610 (1993)).

16

The burden shifting framework set forth in McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973) applies to
discrimination claims under the ADEA. Turner, 901 F.2d at 34142. The McDonnell Douglas analysis proceeds in three stages.
First, the plaintiff must establish a prima facie case of
discrimination. McDonnell Douglas, 411 U.S. at 802. In an age
discrimination case, a discharged employee must show “(1) that
he belongs to the protected class, i.e., is older than forty;
(2) was qualified by training and experience for the job from
which he was discharged; and (3) was replaced by a person
sufficiently younger to permit an inference of age
discrimination.” Turner, 904 F.3d at 342 (citing Sorba v. Penn.
Drilling Co., 821 F.2d 200, 202 (3d Cir. 1987)). The burden then
shifts to the defendant “to articulate some legitimate,
nondiscriminatory reason” for the plaintiff’s termination. Id.
If defendant does this, the burden shifts back to the plaintiff
“to prove by a preponderance of the evidence that the legitimate
reasons offered by the defendant were not its true reasons, but
were a pretext for discrimination.” Jones v. School Dist. Of
Philadelphia, 198 F.3d 403, 410 (3d Cir. 1999). Although this
burden of production shifts from party to party, “[t]he ultimate
burden of persuading the trier of fact that the defendant
intentionally discriminated against the plaintiff remains at all
times with the plaintiff.” Id.
17

The parties assume, and the Court will as well, that
Plaintiff has presented sufficient evidence to establish a prima
facie case for age discrimination. Cooper argues that it is
entitled to summary judgment because it presents a legitimate,
nondiscriminatory reason for Plaintiff’s termination which he
cannot rebut as pretext for discriminatory animus. Plaintiff, in
turn, argues that summary judgment is inappropriate because he
can point to evidence in the record showing that he was placed
on the PIP because he complained about Mr. LeBender’s agerelated comments and that he was held to disproportionate
standards under the PIP because Mr. LeBender was a primary
decisionmaker in Cooper’s employment actions. This motion
requires the Court to decide whether Plaintiff has adduced
evidence from which a reasonable factfinder could conclude that
he could carry his burden at the third stage of the McDonnell
Douglas analysis. For the following reasons, the Court finds
that he has come forward with evidence raising a genuine dispute
of material fact and will deny Defendant’s motion for summary
judgment on the age discrimination claim.
1. Cooper’s legitimate, nondiscriminatory reason for
Plaintiff’s Termination
Consistent with the second step of the McDonnell Douglas
analysis, Cooper presents a legitimate, nondiscriminatory reason
for Plaintiff’s termination. The second step “does not require

18

that the employer prove that the articulated legitimate,
nondiscriminatory reason was the actual reason for the adverse
employment action. Instead, the employer must provide evidence
that will allow the factfinder to determine that the decision
was made for nondiscriminatory reasons.” Willis v. UPMC
Children’s Hospital of Pittsburgh, 808 F.3d 638, 644 (3d Cir.
2015). Cooper has plainly made this showing, taking the position
that Plaintiff was terminated for failure to improve his
performance under the PIP.
As a staff technologist at Cooper, Plaintiff was expected
to achieve and maintain competence in the two pieces of
equipment that technologists use in the operating room during
surgery: the O-arm and the C-arm. (Ciecka Dep. at 137:2-138:9;
see also Cooper University Radiology Job Specific
Responsibilities and Competency Review.) Cooper contends that
Mr. Colna placed Plaintiff on a PIP effective August 14, 2014
due to concerns that he had “struggled with maintaining a level
of competency in the OR and other Diagnostic Imaging areas.”
(See PIP [Ex. DD to O’Hearn Cert.].) According the Plan, the
management team was concerned that Plaintiff did “not have the
confidence level or skill set to work independently” with the Oarm and that “[i]t has been documented that [Plaintiff] appears
to get confused and is unable to perform basic Task” with the Carm. (Id.) The Plan directed that Plaintiff would be assigned to
19

the Operating Room and to “closely work with” one of the
designated OR technologists in order to familiarize himself with
the equipment, that Plaintiff and all other technologists would
be required to attend a workshop on the O-arm, and that
Plaintiff would meet regularly with a member of the Management
Team to evaluate his progress, with the goal of “improving his
clinical skills and as a result increase his level of selfconfidence.” (Id.)
Mr. Colna testified at his deposition that he had received
verbal complaints from physicians and lead technologists in the
operating room about Plaintiff’s performance and his willingness
to take on invasive cases in the spring of 2014, but that the
situation “came to a head” in August 2014 when Plaintiff created
a “patient safety issue” by asking an inexperienced recent
graduate to cover an O-arm procedure in the operating room
“because [he] don’t know how to do this.” (Colna Dep. at 87:1488:16, 101:6-102:22.) Mr. Colna testified that the decision to
place Plaintiff on a PIP after that incident was a joint
decision between him, Mr. LeBender, Ms. Alessandrini, and Human
Resources and that he drafted the Plan himself. (Id. at 100:23101:3, 111:9-13.)
Cooper takes the position that Plaintiff’s termination was
warranted because his performance did not improve as required
under the PIP, despite extending the time period for which the
20

Plan was in place from October 2014 until December 2014. (Colna
Dep. at 145:1-146:4, 147:11-148:22.) Mr. Colna relied on
complaints from physicians and feedback from the designated OR
technologists during the PIP about Plaintiff’s performance and
confidence with the O-arm and C-arm, and input from Ms.
Alessandrini, one of the lead technologists, that “[Plaintiff]
was still unable to perform to the standard expectations that we
hold for all technologists” in coming to the decision that “the
only other option we [had] at this point [was] to terminate.”
(Id. at 145:1-146:4; see also Harrington Dep. at 76:7-20, 99:5100:8, 113:7-13 (recalling complaints from Dr. Yocon, Dr. Graf,
and Dr. Mashru); Certifications from Drs. Bussey, Graf, Yocom,
Dolch, and Mashru [Ex. KK, MM, OO, PP, and QQ to O’Hearn
Cert.].) The Court is satisfied that Cooper has adequately
carried its burden at the second step of the McDonnell Douglas
analysis.
2. Plaintiff’s Rebuttal
Plaintiff concedes that this is a legitimate,
nondiscriminatory reason for his termination, but maintains that
summary judgment is not warranted because factual disputes
remain over whether the PIP was pretext for Mr. LeBender’s
discriminatory animus, and whether he was held to a different
standard than other staff technologists at Cooper. The Court
will deny Cooper’s motion for summary judgment on Plaintiff’s
21

age discrimination claim because he has pointed to
inconsistencies in the record regarding Cooper’s rationale for
placing him on the PIP and terminating his employment, and
circumstantial evidence that age discrimination was the
motivating reason.
The Third Circuit has explained that a plaintiff may defeat
summary judgment at the third step of the McDonnell Douglas
analysis “by pointing to some evidence, direct or
circumstantial, from which a factfinder would 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 actions.” Jones, 198 F.3d at 413. Only at trial is a
plaintiff in an employment discrimination case required to
“convince the finder of fact both that the reason was false, and
that discrimination was the real reason.” St. Mary’s Honor Ctr.
V. Hicks, 509 U.S. 502, 515 (1993) (emphasis in original); see
also Ezold v. Wolf, Block, Schorr and Solis-Cohen, 983 F.2d 509,
523 (3d Cir. 1992) (same). “To discredit the employer’s
proffered reason, the plaintiff cannot simply show that the
employer’s decision was wrong or mistaken. Rather, the nonmoving plaintiff must demonstrate such weaknesses,
implausibilities, inconsistencies, incoherencies, or
contradictions in the employer’s proffered legitimate reasons
22

for its action that a reasonable factfinder could rationally
find them unworthy of credence, and hence infer that the
employer did not act for the asserted non-discriminatory
reasons.” Shaner v. Synthes, 204 F.3d 494, 501 (3d Cir. 2000)
(quoting Fuentes v. Perskie, 32 F.3d 759, 765 (3d Cir. 1994)).
Plaintiff has successfully pointed to numerous issues in
the record to rebut Cooper’s stated legitimate,
nondiscriminatory reason for his termination. First, Plaintiff
has provided testimony from Mr. Colna that he was aware of the
complaints about Plaintiff’s O-arm and C-arm skills and
leadership and teamwork abilities identified in the PIP for some
time before Plaintiff was placed on the PIP, and yet never
identified them in a performance evaluation. (See Colna Dep. at
65:5-43, 87:14-90:11, 107:21-109:1). This contradicts other
evidence in the record, by which Plaintiff has shown that his
employment evaluations were positive in the time leading up to
the PIP, before he made his age discrimination complaint.
Specifically, Plaintiff’s performance was overall rated “exceeds
expectations” in both 2013 and 2014, and he was given mostly or
completely scores of 4 out of 5 for his competency in operating
room technology and for “core values and actions.” (See
Plaintiff’s 2014 Performance Evaluation [Ex. F to Pl. SMF] and
Plaintiff’s 2013 Performance Evaluation [Ex. S to Pl. SMF]).
Additionally, Plaintiff has also offered evidence that he was
23

treated differently from other staff radiology technologists;
apparently many technologists, most of whom were younger than
Plaintiff, had the same deficiencies with the operating room
equipment as he did, and yet no others were put on a PIP or
otherwise disciplined. (See Harrington Dep. at 78:11-79:11;
Colna Dep. at 133:7-134:24; Mullison Dep. at 106:14-109:5;
Ciecka Dep. at 81:6-84:8.)
Finally, Plaintiff argues that there are factual disputes
surrounding some of Cooper’s assertions. Specifically, Plaintiff
disputes the statement that physicians had complained about
Plaintiff’s performance for years, offering testimony from one
of the permanent operating room technologists that she had never
heard complaints about Plaintiff before the summer of 2014.
(Mullison Dep. at 57:1-58:2.) Additionally, Plaintiff disputes
Cooper’s recounting of the allegedly precipitating incident with
the recent graduate in the operating room: Plaintiff testified
at his deposition that he asked the graduate to cover the O-arm
procedure, before knowing the type of procedure that it was,
because there were two simultaneous procedures happening in the
operating room; that he offered to take the one that was
scheduled to last longer; and that he never told the graduate
that he didn’t know how to work the O-arm. (See Ciecka Dep. at
206:17-209:9.) Although Plaintiff will have to contend at trial
with the fact that the primary decisionmakers in his case were
24

also all over 40, if all reasonable inferences are extended in
favor of Plaintiff, a reasonable jury could believe Plaintiff’s
theory that his performance issues were manufactured by
management as pretext for age discrimination. These material
factual disputes and “inconsistencies . . . and contradictions”
in Cooper’s stated reason for Plaintiff’s termination preclude
the entry of summary judgment on this claim.
B. Defendant Is Not Entitled to Summary Judgment on
Plaintiff’s Retaliation Claims
Counts I and II also allege that Cooper retaliated against
Plaintiff for engaging in protected activity under the ADEA and
NJLAD by reporting age-based discrimination. Both statutes make
it unlawful for an employer to retaliate against any employee
who opposes any discriminatory employment practice, files a
complaint, or participates in an investigation, proceeding, or
litigation. 29 U.S.C. § 623(d); N.J.S.A. 10:5-12(d).
The McDonnell Douglas burden-shifting framework applies to
retaliation claims under the ADEA and NJLAD. Daniels v. School
Dist. of Philadelphia, 776 F.3d 181, 193 (3d Cir. 2015). To
state a prima facie case for retaliation, a plaintiff must show
“(1) protected employee activity; (2) adverse action by the
employer either after or contemporaneous with the employee’s
protected activity; and (3) a causal connection between the
employee’s protected activity and the employer’s adverse

25

action.” Id. (citing Marra v. Phila. Hous. Auth., 497 F.3d 286,
300 (3d Cir. 2007)); see also Battaglia v. United Parcel
Service, Inc., 70 A.3d 602, 619 (N.J. 2013) (same). The employer
may then present a legitimate, non-retaliatory reason for having
taken the adverse employment action, which the plaintiff can
then rebut as pretext. Id.
At this point, it is undisputed that Plaintiff engaged in
protected activity by submitting a written complaint of age
discrimination to Cooper’s Human Resources Department on June 9,
2014.1 Similarly, both parties assume that Plaintiff was
subjected to two adverse employment actions: being placed on a
PIP in August of 2014 and his termination on December 11, 2014.2
Where Plaintiff and Cooper disagree is whether Plaintiff can
demonstrate a causal connection between his June complaint of
discrimination and his adverse employment actions.

1

As Cooper points out in its moving papers, Plaintiff also
engaged in protected activity by filing an EEOC Complaint in
November 2014. However, because Plaintiff’s arguments focus
solely on his June complaint to Human Resources, the Court will
not consider whether there is a causal link between Plaintiff’s
EEOC Complaint and termination.
2 Cooper would have this Court read Plaintiff’s Opposition Brief
to mean that he has abandoned his claim that the PIP is an
adverse employment action. (Reply at 3, discussing Opp’n at 29.)
The Court rejects this interpretation of Plaintiff’s Brief and
will consider whether a causal connection exists between
Plaintiff’s complaint and both purported adverse employment
actions.
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Cooper argues that Plaintiff cannot prove causation because
he cannot show that the sole decisionmaker, Mr. Colna, was aware
of Plaintiff’s discrimination complaint. Of course, an employer
cannot retaliate against an employee if the employer’s
decisionmaker did not know of the employee’s protected activity.
Moore v. City of Philadelphia, 461 F.3d 331, 351 (3d Cir. 2006).
Nevertheless, Plaintiff has pointed to evidence in the record
showing that Mr. Colna was not the sole decisionmaker who put
Plaintiff on a PIP in August and terminated his employment in
December. According to Plaintiff, the decision to place him on a
PIP was a joint decision between Mr. Colna, Mr. LeBender, Ms.
Alessandrini, and Human Resources, and the decision to terminate
his employment was made by Mr. Colna with input from Mr.
LeBender and Ms. Alessandrini and with the approval of Human
Resources. (Colna Dep. at 100:23-101:3, 111:9-13, 138:20140:18.) From this, a reasonable factfinder could infer that the
decision to take adverse employment actions against Plaintiff
was made, at least in part, by someone with knowledge of his
protected activity. Accordingly, factual disputes preclude the
summary judgment on this basis.
The Third Circuit has described three ways to establish
causation in a retaliation case: “(1) an unusually suggestive
temporal proximity between the protected activity and the
allegedly retaliatory action, or (2) a pattern of antagonism
27

couple with timing to establish a causal link,” or, in the
absence of that proof, (3) “the plaintiff must show that from
‘the evidence gleaned from the entire record as a whole’ the
trier of fact should infer causation.” Lauren W. ex rel. Jean W.
v. DeFlaminis, 480 F.3d 259, 267 (3d Cir. 2007).
The crux of Plaintiff’s argument is that his position
changed dramatically between the spring and summer of 2014, and
that the only difference was his discrimination complaint in
June. Plaintiff points to his positive performance reviews and
close relationship with Mr. Colna prior to his protected
activity on the one hand, and the sudden change to a PIP with
“unrealistic goals” and no support, and higher expectations of
performance placed on him than on other technologists who
struggled with the same operating room equipment, on the other,
to lead to the inference that his protected activity was the
reason he was placed on the PIP and “set up to fail.” (See Opp.
at 35-36.) “[C]ircumstantial evidence, such as inconsistent
reasons given by the employer for terminating the employee or
the employer’s treatment of other employees [may] give rise to
an inference of causation when considered as a whole.” Marra v.
Philadelphia Housing Authority, 497 F.3d 286, 302 (3d Cir. 2007)
(discussing Farrell 206 F.3d at 280-81). The Court is satisfied
that Plaintiff has made a prima facie showing for his
retaliation claim, and for the reasons discussed above, has
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presented enough evidence to rebut Cooper’s legitimate,
nondiscriminatory reason as pretext.
It would be improper for the Court to enter summary
judgment at the present time on this claim. There is enough
material in the record, viewed in the light most favorable to
Plaintiff, for a jury to infer that retaliation caused Plaintiff
to be placed on a PIP and terminated. A jury could choose to
read between the lines and link the few weeks between
Plaintiff’s discrimination complaint and PIP with the
“inconsistencies . . . and contradictions” in Cooper’s changing
assessment of Plaintiff’s job performance to conclude that
Cooper unlawfully retaliated against him for making a complaint
of age discrimination. For these reasons, the Court will deny
Cooper’s summary judgment motion on this claim.
C. Defendant Is Entitled to Summary Judgment on Plaintiff’s
Hostile Work Environment Claims
Finally, Counts I and II also allege that Plaintiff was
subjected to a hostile work environment at Cooper after making
his complaint of discrimination against Mr. LeBender, in
violation of the ADEA and the NJLAD.3

3

The Complaint also alleges “Age-based Hostile Work Environment”
in violation of the ADEA and NJLAD, but the Court deems those
claims abandoned because Plaintiff’s opposition brief addresses
only his claims for a hostile work environment in retaliation
for his discrimination complaint.
29

A hostile work environment is one which is “permeated with
discriminatory intimidation, ridicule, and insult that is
sufficiently severe or pervasive as to alter the conditions of
[his] employment and create an abusive working environment.”
Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 116 (2002)
(internal quotation marks omitted). To prevail on a hostile work
environment claim, a plaintiff must establish that “(1) he
suffered intentional discrimination because of his [age]; (2)
the discrimination was pervasive or regular; (3) it
detrimentally affected him; (4) it would have detrimentally
affected a reasonable person of the same protected class in his
position; and (5) there is a basis for vicarious liability.”
Caver v. City of Trenton, 420 F.3d 243, 262 (3d Cir. 2005)
(internal quotation marks omitted); see also Taylor v. Metzger,
706 A.3d 685, 688-89 (N.J. 1998) (holding that a hostile work
environment claim under NJLAD requires a plaintiff to
demonstrate “that the defendant’s conduct (1) would not have
occurred but for the employee’s [protected status]; and [that
the conduct] was (2) severe or pervasive enough to make a (3)
reasonable [person of the same protected class] believe that (4)
the conditions of employment are altered and the working
environment is hostile or abusive.”)
Under both statutes, whether conduct is severe or pervasive
depends on the “totality of the circumstances.” Andrews v. City
30

of Philadelphia, 895 F.2d 1469, 1482 (3d Cir. 1990); see also
Taylor, 706 A.2d at 692 (“Severity and workplace hostility are
measured by surrounding circumstances.”). The circumstances to
be considered “may include the frequency of the discriminatory
conduct; its severity; whether it is physically threatening or
humiliating, or a mere offensive utterance; and whether it
unreasonably interferes with an employee’s work performance.”
Harris v. Forklift Sys., Inc., 510 U.S. 17, 23 (1993); Cutler v.
Dorn, 955 A.3d 917, 925 (N.J. 2008) (same). While “offhanded
comments, and isolated incidents (unless extremely serious)” are
not sufficient to sustain a hostile work environment claim,
Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998), the
cumulative impact of incidents which individually would be
insufficiently severe may create a hostile work environment.
Cutler, 955 A.3d at 925; see also Andrews, 420 F.3d at 263 (“a
discrimination analysis must concentrate not on individual
incidents, but on the overall scenario.”)
In this case, Plaintiff avers that being placed on a PIP
despite prior positive work performance evaluations and having
his work closely monitored under the PIP constitutes a hostile
work environment. Cooper takes the position that summary
judgment is proper because this conduct was not severe or
pervasive conduct so as to constitute a hostile work
environment. The Court agrees. “[I]t is well-settled that being
31

closely supervised or watched does not constitute an adverse
employment action that can support a [hostile work environment
claim], and that having one’s work micromanaged may be
unpleasant but does not give rise to a hostile environment
claim.” McKinnon v. Gonzales, 642 F. Supp. 2d 410, 423 (D.N.J.
2009) (internal citations omitted); see also Shepherd v.
Hunterdon Developmental Ctr., 803 A.2d 611, 626 (N.J. 2002)
(“Similarly, without more, an employer’s filing of a
disciplinary action cannot form the basis of a LAD complaint.”).
Without evidence of further discriminatory conduct, there is no
basis from which a jury could reasonably identify sufficiently
serious, pervasive, offensive and humiliating conduct rising to
the level of a hostile work environment. The Court will grant
Cooper’s motion for summary judgment on this claim.
CONCLUSION
An accompanying Order will be entered.

February 14, 2017
Date

s/ Jerome B. Simandle
JEROME B. SIMANDLE
Chief U.S. District Judge

32