WILLIAMS v. MERCY HEALTH SYSTEM et al

Filing 43

MEMORANDUM AND/OR OPINION SIGNED BY HONORABLE EDUARDO C. ROBRENO ON 3/30/12. 3/30/12 ENTERED AND COPIES E-MAILED.(ti, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
TARA WILLIAMS,
Plaintiff,
v.
MERCY HEALTH SYSTEM, et al.,
Defendants.

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CIVIL ACTION
NO. 10-4834

M E M O R A N D U M
EDUARDO C. ROBRENO, J.

MARCH 30, 2012

I. INTRODUCTION
Plaintiff Tara Williams (“Plaintiff”) brings this
employment discrimination suit pursuant to 42 U.S.C. § 1981
against Defendants Mercy Health System and Mercy Home Health
Services (“Defendants”).
counts:

Plaintiff’s Complaint contains three

(1) Count I — wrongful termination based on

retaliation; (2) Count II — wrongful termination based on racial
discrimination; and (3) Count III — hostile work environment.
Defendants answered denying all averments and asserting a
variety of affirmative defenses.

Currently before the Court is

Defendants’ Motion for Summary Judgment.

ECF No. 39.

For the reasons set forth below, the Court will deny
Defendants’ Motion.

II.

BACKGROUND1

A.

Factual Background

Plaintiff is an African-American female who commenced
employment with Defendants on or about April 28, 2008, working
as an Admission Nurse.

Am. Compl.

¶¶ 13, 14, 16.

Defendants

originally hired Plaintiff for the Suburban Home Health branch.
Plaintiff’s direct supervisor there was Linda Gusenko.
19.

Id. ¶

In December 2008, Defendants transferred Plaintiff to the

St. Mary branch, according to Defendants, because that branch
needed additional staff.

Defs.’ Br. in Supp. of Mot. for Summ.

J. 2, ECF No. 39 [hereinafter Defs.’s Br.].
Plaintiff’s supervisor was Betsy Bullard.

While there,
Plaintiff testified

that Ms. Bullard stated to Plaintiff and her sister the
following: “You people cannot just be rolling out of bed at
12:00, you people cannot just be lazy . . . .”

Williams Dep.

111:5-6, May 19, 2011, Pl.’s Br. in Opp’n to Defs.’ Mot for
Summ. J. Ex. A, ECF No. 42 [hereinafter Pl.’s Br.].

Plaintiff’s

time at the St. Mary branch was short lived; Defendants
transferred Plaintiff back to her original Suburban Home Health
branch before the end of 2008.

Id. at 113:8-22.

1

In accordance with the appropriate standard of review,
see infra, at III(A), the facts in this section are viewed in
the light most favorable to Plaintiff.
2

When back at the Suburban Home Health Branch, Diane
Guzzardo also supervised Plaintiff on an interim basis when Ms.
Gusenko was absent.
Br. Ex. B.

Gusenko Dep. 14:14-17, May 17, 2011, Pl.’s

Defendants contend that they eventually terminated

Plaintiff on May 11, 2010, for allegedly falsifying a mileage
reimbursement report and for falsifying medical records.

Defs.’

Br. 9.
During her approximately two years of employment,
Plaintiff alleges Defendants participated in various acts of
race discrimination.

Plaintiff testified that Ms. Gusenko and

Ms. Guzzardo would change Plaintiff’s schedule without giving
her notice.

Williams 365:16-366:14.

Plaintiff also compared

her schedule to Caucasian nurses; Plaintiff contends those
nurses were not subject to such changes.

Id. at 366:15-368:17.

Plaintiff testified that Defendants treated her differently than
Caucasian nurses because Plaintiff had to report to work before
seeing her first patient and had to use her vacation time if
there was insufficient work.

Id. at 374:10-23.

Plaintiff

testified that as early as December 2008 she informed her direct
supervisor, Ms. Gusenko, about this alleged discrimination, but
Ms. Gusenko also did not take steps to prevent or ameliorate
this alleged discrimination other than speak with Ms. Guzzardo.
Id. at 121:2-19; see also Gusenko Dep. 21:14-22:6 (acknowledging
that Plaintiff complained she was being singled out).
3

Similarly, Plaintiff testified that Jennifer O’Connell, the head
of human resources, knew about Plaintiff’s complaints, yet did
nothing to ameliorate the problem.

Williams Dep. 134:20-136:4.

In addition to this alleged disparate treatment,
Plaintiff testified about Ms. Guzzardo’s various acts of alleged
discriminatory conduct toward her.

Plaintiff testified that,

during a March 2010 telephone call, Ms. Guzzardo referred to
herself in ethnic terms, calling herself a “Guido” and telling
Plaintiff that she would “take care of” Plaintiff.
75:15-16.

Id. at

Plaintiff believed this was a physical threat, as she

understood a “Guido” to be someone with mafia connections.
at 72:17-73:5.

Id.

Plaintiff testified that during this

conversation Ms. Guzzardo called Plaintiff a “coon” and a
“nigger.”2

Id. at 89:5-90:21.

In addition, Plaintiff testified

that Ms. Guzzardo also called Plaintiff a “nigger” on one other
occasion.

Id. at 93:8-94:5.

Finally, Plaintiff testified that

Ms. Guzzardo told Plaintiff to “stay in her place.”

Id. at

73:6-13.
Plaintiff brought all of these alleged acts of
harassment and discrimination to the attention of Ms. Gusenko,
but contends that Ms. Gusenko took no action.
97:5.

Id. at 95:18-

Plaintiff eventually informed Ruth Martynowicz, vice

2

Although the Court does not condone the use of the word
“nigger,” it includes the term here because it is an important
allegation in this case.
4

president of operations, of this alleged harassment.
Martynowicz Dep. 35:10-23, May 23, 2011, Defs.’ Br. Ex. C.

Ms.

Martynowicz testified that she told Plaintiff to bring her
complaints to her supervisor.

Id. at 35:23-36:3.

Plaintiff again complained to Ms. Gusenko in April
2010 about Ms. Guzzardo.

Plaintiff told Ms. Gusenko that she

planned to file a charge with the U.S. Equal Employment
Opportunity Commission (“EEOC”) regarding Ms. Guzzardo’s
harassment and discriminatory treatment.
288:1.

Williams Dep. 286:7-

Plaintiff did contact the EEOC in April 2010, and filed

an official questionnaire on April 26, 2010.

See Pl.’s Br. Ex.

H.
On May 3, 2010, Plaintiff met with Ms. Martynowicz,
Ms. Gusenko, and Ms. O’Connell, to discuss Plaintiff’s work
performance.

Ms. Martynowicz told Plaintiff that they believed

Plaintiff falsified her mileage reimbursement reports for her
travel.

Martynowicz Dep. 105:16-23.

In addition, Ms.

Martynowicz informed Plaintiff of alleged patient mistreatment
and falsification of medical records.

In particular, Plaintiff

allegedly failed to take a patient’s blood pressure, but noted
that she did take the patient’s blood pressure on the patient’s
chart.

Id. at 38:23-41:17.

Moreover, Plaintiff allegedly had a

patient admitted to a hospital for further medical care, but

5

never documented this fact on that patient’s record.

Id. at

40:20-41:10.
Plaintiff attempted to refute or offer explanations
for each of these alleged incidents, but Ms. Martynowicz
alledgedly prevented Plaintiff from offering such explanations.
Williams Dep. 229:12-230:11.

Plaintiff also allegedly belched

and spit during this meeting, though Plaintiff denies she acted
in this way.

Id. at 281:3-283:1.

Plaintiff also testified that

during her performance meeting either Ms. Gusenko or Ms.
O’Connell muttered the word “niggers.”

Id. at 237:7-239:21.

Following this meeting, Defendants terminated Plaintiff’s
employment and replaced her with a Caucasian nurse.
Martynowicz Dep. 47:13-17.

See

Following her termination, Plaintiff

brought the instant lawsuit.

B.

Procedural History
Plaintiff filed her Complaint on September 20, 2010.

ECF No. 1.

Defendants moved to dismiss Count III of Plaintiff’s

Complaint — her claim of a hostile work environment.
Mot. to Dismiss 1, ECF No. 8.

Defs.’

The Court granted Defendants’

Motion, but granted Plaintiff leave to amend her Complaint.
Order, Dec. 13, 2010, ECF No. 20.

Plaintiff duly filed her

Amended Complaint on January 6, 2011.

ECF No. 22.

Defendants

filed an answer to Plaintiff’s Amended Complaint denying all
6

averments and asserting a variety of affirmative defenses.
No. 25.

ECF

After the close of discovery, Defendants filed a Motion

for Summary Judgment on all counts, and Plaintiff responded in
opposition.

Defendants’ Motion is now fully briefed and ripe

for disposition.

III. DISCUSSION

A.

Legal Standard
Summary judgment is appropriate if there are no

genuine disputes of material fact and the moving party is
entitled to judgment as a matter of law.

Fed. R. Civ. P. 56(a).

“A motion for summary judgment will not be defeated by ‘the mere
existence’ of some disputed facts, but will be denied when there
is a genuine issue of material fact.”

Am. Eagle Outfitters v.

Lyle & Scott Ltd., 584 F.3d 575, 581 (3d Cir. 2009) (quoting
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-248 (1986)).
A fact is “material” if proof of its existence or non-existence
might affect the outcome of the litigation, and a dispute is
“genuine” if “the evidence is such that a reasonable jury could
return a verdict for the nonmoving party.”

Anderson, 477 U.S.

at 248.
In undertaking this analysis, the court views the
facts in the light most favorable to the non-moving party.
7

“After making all reasonable inferences in the nonmoving party’s
favor, there is a genuine issue of material fact if a reasonable
jury could find for the nonmoving party.”

Pignataro v. Port

Auth. of N.Y. & N.J., 593 F.3d 265, 268 (3d Cir. 2010) (citing
Reliance Ins. Co. v. Moessner, 121 F.3d 895, 900 (3d Cir.
1997)).

While the moving party bears the initial burden of

showing the absence of a genuine dispute of material fact,
meeting this obligation shifts the burden to the non-moving
party who must “set forth specific facts showing that there is a
genuine issue for trial.”

B.

Anderson, 477 U.S. at 250.

Application
Plaintiff brings three distinct claims against

Defendants pursuant to § 1981.

Plaintiff alleges Defendants

discriminated against her during her employment and fired
Plaintiff because of her race.

She alleges that Defendants

fired her in retaliation for complaining about the alleged
discrimination.

And, Plaintiff alleges that she was subject to

a hostile work environment.

Defendants moved for summary

judgment on each of Plaintiff’s claims.
each claim in turn.

8

The Court addresses

1.

Discrimination Pursuant to § 1981

Section 1981 states that all persons have the right to
make and enforce contracts to the same extent that right “is
enjoyed by white citizens.”

42 U.S.C. § 1981 (2006).

Thus, §

1981 prevents discrimination in the making of contracts.

Brown

v. Philip Morris, Inc., 250 F.3d 789, 796 (3d Cir. 2001).

And,

Courts analyze claims of discrimination pursuant to § 1981 under
the same standard as Title VII.

See Brown v. J. Kaz, Inc., 581

F.3d 175, 181-82 (3d Cir. 2009).

Under this standard, an

employer who discriminates does not typically disclose a
discriminatory animus; therefore, the Supreme Court created a
modified burden shifting analysis to allow plaintiffs to bring
discrimination claims even though they lack direct proof of
discrimination.
Cir. 1999).

See Iadimarco v. Runyon, 190 F.3d 151, 157 (3d

Under this analysis, each plaintiff carries the

initial burden and must establish a prima facie case of racial
discrimination by a preponderance of the evidence.

Sarullo v.

U.S. Postal Serv., 352 F.3d 789, 797 (3d Cir. 2009).
Once the plaintiff establishes the prima facie case,
“the burden shifts to the employer to ‘articulate some
legitimate, nondiscriminatory reason for the employee’s
rejection.’”

Id. (quoting McDonnell Douglas Corp. v. Green, 411

U.S. 792, 802 (1973)).

Although the burden of production shifts

to the defendant, “the ultimate burden of persuading the trier
9

of fact that the defendant intentionally discriminated against
the plaintiff remains at all times with the plaintiff.”

St.

Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 506-07 (1993)
(alteration and internal quotation marks omitted).

If the

employer puts forth a legitimate nondiscriminatory reason, the
presumption of discrimination raised by plaintiff’s prima facie
case is rebutted, and “[t]he plaintiff then must establish by a
preponderance of the evidence that the employer’s proffered
reasons were merely a pretext for discrimination.”

Sarullo, 352

F.3d at 797.

a.

The Prima Facie Case

Whether a plaintiff has established a prima facie case
is a question of law.

Id.

Establishing a prima facie case

requires the plaintiff to show: “(1) [he/she] belongs to a
protected class; (2) he/she was qualified for the position; (3)
he/she was subject to an adverse employment action despite being
qualified; and (4) [this occurred] under circumstances that
raise an inference of discriminatory action.”

Id.

Defendants

do not dispute at this stage that Plaintiff established her
prima facie case.

Defs.’ Br. 11.

10

b.

Legitimate Nondiscriminatory Reason

Once a plaintiff establishes a prima facie case, a
presumption of discrimination arises.

This presumption is

rebutted if the defendant “articulate[s] some legitimate,
nondiscriminatory reason for the employee’s [termination].”
McDonnell, 411 U.S. at 802.

This burden of production rests on

the defendant and is a low standard.

See Iadimarco, 190 F.3d at

157 (“[T]he defendant need not persuade the court that it was
actually motivated by the proffered reasons.” (internal
quotation marks omitted)).

“The defendant satisfies its burden

at this step by introducing evidence which, taken as true, would
permit the conclusion that there was a nondiscriminatory reason
for the unfavorable [action].”

Anderson v. Wachovia Mortgage

Corp., 621 F.3d 261, 271 (3d Cir. 2010) (alteration in original)
(citation and internal quotation marks omitted).
Defendants put forth evidence of legitimate
nondiscriminatory reasons for Plaintiff’s termination.
Specifically, Defendants contend that they terminated Plaintiff
because they believed she falsified patient records and mileage
reimbursement reports.

Plaintiff argues that Defendants’

nondiscriminatory reasons are a pretext for discrimination.

11

c.

Pretext

After a defendant offers a legitimate nondiscriminatory reason for termination, “the presumption raised
by the prima facie case . . . drops from the case.”

St. Mary’s

Ctr., 509 U.S. at 507 (citation and internal quotation marks
omitted).

At the summary judgment stage the plaintiff need not

prove her case of discrimination, but “‘must point to some
evidence, direct or circumstantial, from which a fact finder
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.’”

Iadimarco, 190

F.3d at 165-66 (emphasis in original) (quoting Fuentes v.
Perskie, 32 F.3d 759, 764 (3d Cir. 1994)).

In other words, the

plaintiff must provide evidence to “allow a factfinder
reasonably to infer that each of the employer’s proffered
nondiscriminatory reasons . . . was either a post hoc
fabrication or otherwise did not actually motivate the
employment action.”

Id. at 166 (omission in original) (citation

and internal quotation marks omitted).

The burden of persuading

the trier of fact that the alleged acts constituted unlawful
discrimination remains with the plaintiff.

See St. Mary’s Ctr.,

509 U.S. at 507 (discussing burdens under McDonnell Douglas
analysis).
12

Defendants contend that Plaintiff failed to take the
blood pressure of a patient, but recorded that she did take that
blood pressure.

Defs.’ Br. 13; Martynowicz Dep. 39:5-40:11.

Moreover, Ms. Guzzardo spoke directly to the patient and the
patient’s husband about the incident and confirmed that
Plaintiff did not take the patient’s blood pressure.

Finally,

as Plaintiff did not seek discovery from the patient or the
patient’s husband, Plaintiff thus “all but concedes the honesty
of [Defendants’] belief that [Plaintiff] falsified patient
records.”

Defs.’ Br. 13.
In response, Plaintiff contends that she did take the

patient’s blood pressure.

Moreover, Plaintiff’s deposition

testimony states explicitly her belief that any report from the
patient to the contrary was fabricated.3
268:2.

Williams Dep. 266:14-

Plaintiff buttresses this contention by arguing that she

had a history of providing professional care to her patients.
Specifically, Plaintiff argues that “[i]t is simply not
believable that a registered nurse, who had been employed with
Defendants for two years and received favorable performance
evaluations, would neglect to take a patient’s blood pressure.”
Pl.’s Br. 20.

Moreover, Plaintiff argues that the patient’s

3

Plaintiff notes that it was Ms. Guzzardo that
investigated Plaintiff’s alleged failure to take a blood
pressure reading. Thus, Plaintiff argues, as Ms. Guzzardo
already showed racial animus toward Plaintiff, Ms. Guzzardo
fabricated this incident and reported it back to Ms. Gusenko.
13

alleged complaint occurred on April 9, 2010, but Defendants did
not confront Plaintiff with this complaint until May 3, 2010.
Thus, Plaintiff argues, if her alleged failure to take the
patient’s blood pressure was egregious enough to warrant
termination, why did Defendants not confront her sooner?

Id.

The Court finds that Plaintiff put forth enough
evidence to satisfy her burden on summary judgment with respect
to pretext for the falsified medical records.

The evidence of

records shows that a reasonable jury could conclude that
Defendants’ proffered reason for termination — falsifying a
blood pressure reading — is false.4

Specifically, by directly

contradicting Defendants with respect to whether or not she took
the reading and by providing evidence of Plaintiff’s past
performance, Plaintiff has shown “weaknesses, implausibilities,
inconsistencies, incoherencies, or contradictions in []
[Defendants’] proffered legitimate reasons” to the extent that
“a reasonable factfinder could rationally find them unworthy of
credence.”

Fuentes, 32 F.3d at 765 (emphasis in original)

(citation and internal quotation marks omitted).
With respect to Plaintiff’s alleged mileage
falsification, Defendants argue that Plaintiff’s mileage
4

Defendants also put forward evidence that Plaintiff
was disciplined on several occasions during her first six months
of employment for various performance reasons. See Defs.’ Br.
2-3. Yet, Defendants do not argue that Plaintiff’s termination
was in any way affected by these previous performance problems.
14

documentation shows that she conducted five patient
appointments, traveled ninety-five miles, all before 11:15 A.M.
Defendants assert that as each patient appointment takes one to
two hours, it would be impossible for Plaintiff to conduct five
appointments and travel ninety-five miles in one morning.
Therefore, Defendants contend, Plaintiff must have falsified her
mileage reimbursement reports.
Plaintiff responds and explains that Defendants’
patient list did not include additional patients that Plaintiff
visited that same day.

Plaintiff contends that Defendants

rerouted Plaintiff and added to her patient list.
Defendants knew about the additional mileage.

Thus,

Moreover, there

were also additional patients whose homes Plaintiff drove to,
but who were unavailable.

While Plaintiff recorded the mileage

for these drives, she did not record the patients.

Finally,

Plaintiff testified that she also drove back to the office
between seeing patients.

All of these facts, according to

Plaintiff, account for the large amount of mileage on her
report.

At the May 3, 2010, disciplinary meeting Plaintiff

attempted to offer the above explanation, but was not permitted.5
5

Defendants contend that they fired a Caucasian nurse
for falsifying medical records. Plaintiff argues that that
nurse never showed up for a disciplinary meeting to refute
Defendants’ claims against her. This alleged comparator holds
no weight for the Court, as it views the facts in the light most
favorable to Plaintiff.
15

Plaintiff’s evidence shows “weaknesses, implausibilities,
inconsistencies, incoherencies, or contradictions in []
[Defendants’] proffered legitimate reasons” to the extent that
“a reasonable fact finder could rationally find them unworthy of
credence.”

Id. (emphasis in original).

Therefore, Plaintiff

has produced sufficient evidence “from which a fact finder could
reasonably . . . disbelieve [Defendants’] articulated legitimate
reasons.”

Iadimarco, 190 F.3d at 165-66.
Moreover, Plaintiff offers evidence of racial animus

in the form of stray remarks allegedly spoken by supervisors.
Specifically, Plaintiff testified that Ms. Guzzardo, in 2009,
called Plaintiff a “coon” and a “nigger.”
90:21.

Williams Dep. 89:5-

And, Plaintiff testified that Ms. Guzzardo called her a

“nigger” again in March 2010.

Moreover, Plaintiff testified

that during her termination meeting on May 3, 2010, either Ms.
Gusenko or Ms. O’Connell muttered the word “niggers.”

Stray

remarks of racial animus may be probative of discrimination.
When considering their probative value, the Court considers
three factors: (1) the relationship of the speaker to the
employee and within the corporate hierarchy; (2) the purpose and
content of the statement; and (3) the temporal proximity of the
statement to the adverse employment decision.

Ryder v.

Westinghouse Elec. Corp., 128 F.3d 128, 133 (3d Cir. 1997); see

16

also Parker v. Verizon Pa., Inc. 309 F. App’x 551, 559 (3d Cir.
2009).
Here, the first Ryder factor weighs in favor of
finding these stray remarks probative of discrimination.

Ms.

Guzzardo was, at times, Plaintiff’s interim supervisor when Ms.
Gusenko was out of the office.

Gusenko Dep. 14:14-17.

Moreover, Plaintiff’s testimony also states that either Ms.
Gusenko or Ms. O’Connell, Plaintiff’s direct supervisor and the
head of human resources, respectively, called Plaintiff a
“nigger.”

Thus, as all of the alleged speakers of the word

“nigger” were in a supervisory role to Plaintiff, this Ryder
factor weighs in Plaintiff’s favor.
The second Ryder factor also weighs in Plaintiff’s
favor.

Use of a racially charged word such as “nigger” in the

process of disciplining or berating someone suggests racial
animus.

Thus, this Ryder factor weighs in Plaintiff’s favor.
The third Ryder factor also weighs in Plaintiff’s

favor.

Two of the alleged utterances of “nigger” occurred in

March 2010 and May 2010.
was May 11, 2010.

Plaintiff’s official termination date

At the very least, Plaintiff’s testimony that

“nigger” was uttered during the May 3, 2010, meeting shows a
close proximity to her termination.
also weighs in Plaintiff’s favor.

17

Accordingly, this factor

Given the stray remarks allegedly made, Plaintiff has
shown sufficient evidence from which a fact finder could
reasonably “believe that an invidious discriminatory reason was
more likely than not a motivating or determinative cause of the
employer’s action.”

Iadimarco, 190 F.3d at 165-66.

In this

case, Plaintiff adduced sufficient evidence for a fact-finder to
reasonably disbelieve Defendants’ proffered legitimate
nondiscriminatory reasons for her termination and to believe
that invidious discrimination was more likely than not the
reason for her termination.

Accordingly, the Court will deny

Defendants’ Motion for Summary Judgment on Plaintiff’s
discrimination claim.

2.

Retaliation Claim

To prevail on a claim for retaliation, “an employee
must prove that (1) she engaged in a protected employment
activity, (2) her employer took an adverse employment action
after or contemporaneous with the protected activity, and (3) a
‘causal link’ exists between the adverse action and the
protected activity.”

Andreoli v. Gates, 482 F.3d 641, 649 (3d

Cir. 2007) (citation and internal quotation marks omitted).
And, similar to a claim of discrimination, after
Plaintiff establishes her prima facie case, the burden shifts to
Defendants to proffer a legitimate non-retaliatory reason for
18

the adverse employment action.

Estate of Olivia ex rel. McHugh

v. New Jersey, 604 F.3d 788, 798 (3d Cir. 2010).

If Defendants

proffer such evidence, the burden shifts back to Plaintiff to
show that Defendants’ proffered reason is pretext.

Id.

Defendants concede, for argument purposes, that
Plaintiff established her prima facie case on her retaliation
claim.

Moreover, Defendants do not put forth additional

evidence, other than the evidence discussed above, of a
legitimate non-retaliatory reason for terminating Plaintiff.
Plaintiff, in addition to attacking the credibility of
Defendants’ reasons for terminating her, also argues that the
temporal proximity between Plaintiff notifying Defendants that
she planned to file an EEOC charge and her termination
demonstrates pretext.

In this regard, Plaintiff testified that

she informed her supervisor, Ms. Gusenko, at a meeting in early
April 2010 that she planned to file a complaint with the EEOC.
Williams Dep. 286:18-287:7.

Moreover, she did file this

complaint with the EEOC on April 26, 2010.

See U.S. Equal

Employment Opportunity Commission Intake Questionnaire (April
26, 2010), Pl.’s Br. Ex. H.

Defendants terminated Plaintiff

following a purported performance meeting on May 3, 2010.
Plaintiff argues that the short time between Plaintiff informing
Ms. Gusenko about her intent to file the EEOC charge and her
termination illustrates pretext.
19

In this case the temporal proximity of Plaintiff’s
protected activity and her termination suggests retaliation, and
a jury could infer that Plaintiff’s termination was retaliatory.
The Court may consider the temporal proximity of a protected act
to an adverse employment action when assessing a plaintiff’s
retaliation case.6

See Fasold v. Justice, 409 F.3d 178, 189-90

(3d Cir. 2005) (holding that “when only a short period of time
separates an aggrieved employee’s protected conduct and an
adverse employment decision” there is evidence for an inference
of retaliation).

Here, Defendants terminated Plaintiff

approximately one month after Plaintiff informed Ms. Gusenko
that she was filing a charge with the EEOC.

Moreover,

Defendants terminated Plaintiff fifteen days after she filed a
charge of discrimination with the EEOC.

Such temporal proximity

combined with Plaintiff’s earlier evidence refuting Defendants’
proffered reasons for termination — falsifying mileage reports
and patient records — is sufficient for a jury to conclude that
6

To consider temporal proximity, Plaintiff must show
that the “decision maker had knowledge of the protected
activity.” Moore v. City of Phila., 461 F.3d 331, 351 (3d Cir.
2006). In this case, the record is unclear whether Defendants
knew that Plaintiff actually did file a charge with the EEOC.
Nonetheless, Plaintiff testified that she informed Ms. Gusenko,
her direct supervisor and a person responsible for terminating
Plaintiff, that she planned to file a charge with the EEOC.
Thus, at least according to Plaintiff, Defendants were on
sufficient notice of a protected activity. See Oliver v. Bell
Atl. Corp., No. 92-751, 1994 WL 3515829, at *2 (E.D. Pa. 1994)
(Robreno, J.).
20

Defendants’ legitimate non-retaliatory reasons for Plaintiff’s
termination were only pretext.7

Accordingly, the Court will deny

Defendants’ Motion for Summary Judgment on Plaintiff’s
retaliation claim.

3.

Hostile Work Environment

Plaintiff also claimed that Defendants subjected her
to a hostile work environment.

The standard for a hostile work

environment claim under § 1981 is the same as under Title VII.
Cf. Brown v. J. Kaz, Inc., 581 F.3d 175, 181-82 (3d Cir. 2009).
“When the workplace is permeated with discriminatory
intimidation, ridicule, and insult, that is sufficiently severe
or pervasive to alter the conditions of the victim's
employment,” a hostile work environment exists and Title VII has
been violated.

Harris v. Forklift Sys., Inc., 510 U.S. 17, 21

(1993) (citation and internal quotation marks omitted).
In order to make out a prima facie case for a hostile
work environment, Plaintiff must demonstrate the following five
7

The case law generally analyzes temporal proximity in
the context of whether a plaintiff met its burden for its prima
facie case. See, e.g., Doe v. C.A.R.S. Prot. Plus, Inc., 527
F.3d 358, 369 (3d Cir. 2008); Fasold, 409 F.3d at 189-90. Here,
Defendants concede that Plaintiff met her prima facie case.
Yet, “evidence supporting the prima facie case is often helpful
in the pretext stage.” C.A.R.S., 527 F.3d at 370 (emphasis in
original). Thus, the Court finds that Plaintiff’s evidence of
temporal proximity, combined with her other evidence discussed
above, is sufficient to defeat Defendants’ Motion for Summary
Judgment on Plaintiff’s retaliation claim.
21

elements: (1) that she suffered intentional discrimination
because of her race; (2) that this discrimination was severe or
pervasive; (3) that the discrimination detrimentally affected
Plaintiff; (4) that it would detrimentally affect a reasonable
person of Plaintiff’s race; and (5) that there exists respondeat
superior liability.

Abramson v. William Paterson Coll. of N.J.,

260 F.3d 265, 267 (3d Cir. 2001).

Yet, not all conduct is

actionable under a hostile work environment claim.

“The

discriminatory conduct must be so extreme as to amount to a
change in the terms and conditions of employment.

Unless they

are extremely severe, offhand comments and isolated incidents
are insufficient to sustain a hostile work environment claim.”
Woodard v. PHB Die Casting, 255 F. App’x. 608, 609 (3d Cir.
2007) (citations omitted).
In this case, Defendants only challenge the second
prong in their Motion for Summary Judgment — that the record
does not reflect severe or pervasive discrimination.8

8

Defendants do not argue that because Plaintiff’s
direct supervisor, Ms. Gusenko, did not make all of the alleged
racially charged comments that Plaintiff cannot show grounds for
respondeat superior liability. Plaintiff, on the other hand,
cites to the recent Supreme Court case of Staub v. Proctor
Hosp., 131 S. Ct. 1186 (2011), for the position that an
employee’s harassing conduct can result in a hostile work
environment under the so-called “cat’s Paw” theory. The Court
takes no position on either issue, as Defendants only argued
that the comments taken as a whole were insufficient as a matter
of law to result in a hostile work environment.
22

Specifically, Defendants contend that any racially
discriminatory statements made were few and sporadic.

That is,

there were only five specific racially charged comments in the
record to support Plaintiff’s claim of hostile work environment.
Those statements were: (1) that Ms. Guzzardo called herself a
“Guido” during a March 2010 telephone conversation with
Plaintiff; (2) that Ms. Guzzardo called Plaintiff a “coon” and a
“nigger” in the same conversation; (3) that Ms. Guzzardo called
Plaintiff a “nigger” in a telephone conversation in 2009; (4)
that Ms. Bullard told Plaintiff and another African-American
employee that “you people cannot just be lazy” in 2008; and (5)
that Ms. Gusenko or Ms. O’Connell called Plaintiff a “nigger” in
the May 3, 2010 termination meeting.
(citation omitted).

See Defs.’ Br. 22

Even assuming these comments are the only

ones that support Plaintiff’s claim for a hostile work
environment, the Court will deny Defendants’ Motion.9
When analyzing whether conduct is severe or pervasive,
the Court looks not to one incident, but to the “totality of the
9

The Court already concluded that these stray remarks
were probative of discrimination for Plaintiff’s claims of
discriminatory termination and retaliatory termination. See
supra, at III(B)(1)(c). That does not, ipso facto, require the
Court to deny summary judgment on Plaintiff’s claim of a hostile
work environment. Claims of discrimination or retaliation and
hostile work environment are different and require Plaintiff to
prove different elements. Any other conclusion would render
claims for a hostile work environment superfluous. Cf. Nat’l
R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 115-16 (2002);
Kilby-Robb v. Spellings, 522 F. Supp. 2d 148, 164 (D.D.C. 2007).
23

circumstances.”

Andrews v. City of Phila., 895 F.2d 1469, 1482

(3d Cir. 1990).

In this case, it is true that these comments

were sporadic.

Moreover, while this Court has held that

isolated and sporadic comments will not constitute a hostile
work environment claim as a matter of law, see Clair v. Agusta
Aerospace Corp., 592 F. Supp. 2d 812, 822-23 (E.D. Pa. 2009)
(Robreno, J.), this case is different.

The alleged use of the

word “nigger” on three occasions, combined with Defendants other
alleged discriminatory remarks is insufficient for the Court to
conclude that the alleged discriminatory conduct was not severe
or pervasive as a matter of law.10

“Nigger” is a word steeped in

racial animus and instantly separates an African-American from

10

It is true that other courts have held a similar
number of racial remarks sufficient to conclude as a matter of
law that the discriminatory remarks were not severe or
pervasive. See Woodard, 255 F. App’x. at 609-10 (granting
summary judgment because drawing of a burning cross and KKK sign
on a restroom was not removed by the defendants for three months
after the plaintiff complained); Boyer v. Johnson Matthey, Inc.,
No. 02-8382, 2005 WL 35893, at *16-17 (E.D. Pa. Jan 6, 2005)
(granting summary judgment after the plaintiff was called “boy”
several times and the term “nigger-rigged” was used in the
plaintiff’s presence, but not directed at him); Morgan v.
Volenti Mid-Atl. Mgmt., No. 01-134, 2001 WL 1735260, at *3 (E.D.
Pa. Dec. 14, 2001) (holding that there was no hostile work
environment when employer called the plaintiff a nigger once and
said that he would not hire Jamaicans again). The Court finds
the repeated use of the uniquely racially charged remarks here
distinguishable. In this case, Ms. Guzzardo, Plaintiff’s
interim supervisor, and either Ms. Gusenko or Ms. O’Connell,
made the racially charged comments. Moreover, one of the uses
of “nigger” allegedly occurred during Plaintiff’s performance
meeting on May 3, 2010, where Defendants decided to terminate
Plaintiff, effective May 11, 2010.
24

everyone else.

Thus, the Court cannot say as a matter of law

that Defendants’ alleged conduct here was not severe or
pervasive to the extent that it changed the terms of Plaintiff’s
employment.

Indeed, it is difficult for the Court to understand

how the use of the word “nigger,” with its history of animus,
would do anything but change Plaintiff’s terms of employment.
See Rodgers v. Western-Southern Life Ins. Co., 12 F.3d 668, 675
(7th Cir. 1993) (“Perhaps no single act can more quickly alter
the conditions of employment and create an abusive working
environment [] than the use of an unambiguously racial epithet
such as nigger by a supervisor in the presence of his
subordinates.”)

(citation and internal quotation marks

omitted); cf. Webb v. Merck & Co., 450 F. Supp. 2d 582, 598
(E.D. Pa. 2006) (denying summary judgment on hostile work
environment claim where the defendant’s employee called the
plaintiff an animal and the employee referred to himself as the
zookeeper).

Accordingly, under the totality of the

circumstances and viewing the facts in the light most favorable
to Plaintiff, there is sufficient evidence for a reasonably jury
to conclude that Defendants’ conduct was severe or pervasive.
Accordingly, the Court will deny Defendants’ Motion for Summary
Judgment on Plaintiff’s hostile work environment claim.

25

IV.

CONCLUSION
For the reasons set forth above, the Court will deny

Defendants’ Motion for Summary Judgment.
will follow.

26

An appropriate order