MILLER v. THOMAS JEFFERSON UNIVERSITY HOSPITAL et al

Filing 35

MEMORANDUM AND/OR OPINION. SIGNED BY HONORABLE J. CURTIS JOYNER ON 11/15/12. 11/16/12 ENTERED AND COPIES EMAILED.(rf, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
ANGELA MILLER,

:
:
Plaintiff,
:
:
v.
:
:
THOMAS JEFFERSON UNIVERSITY
:
HOSPITAL, RICHARD GOSSAR, CAROL
:
STAFFIERI, MARIAN FEIL, and THOMAS :
JEFFERSON UNIVERSITY

CIVIL ACTION
NO. 11-cv-0023

Defendants.

MEMORANDUM & ORDER
Joyner, C. J.

November 15, 2012

Before this Court are Defendants’ Motions for Summary
Judgment (Doc. Nos. 22, 23 and 24), Plaintiff’s Response thereto
(Doc. No. 27), and Defendants’ Reply in further support thereof
(Doc. No. 30).

For the reasons set forth below, the Court grants

the Defendants’ Motions.
I.

FACTUAL AND PROCEDURAL BACKGROUND

Angela Miller (“Miller” or “Plaintiff”), an African-American
woman, is the alleged victim of discrimination while she was a
student in the nurse anesthetist program at Thomas Jefferson
University (“Jefferson University,” “the University,” or
“Defendant”).

The nurse anesthetist program requires clinical

rotations, where the students learn alongside a certified
registered nurse anesthetist (“CRNA”) with real patients.

1

Students are assigned to different hospitals for their clinical
rotations, and each hospital has a clinical coordinator who is
also a CRNA.

At the hospital, each student would be assigned to

a different room with a different CRNA, working with a number of
different CRNAs over time.

The CRNA would submit an evaluation

of the student’s work that day.

Additionally, the clinical

coordinators would submit summative evaluations to the University
periodically, tracking the student’s progression over time and
ultimately determining, at least in part, whether the student
passed the semester.
Miller was assigned to Methodist Hospital (“Methodist”) for
her clinical rotations, beginning in April 2006.
coordinator at Methodist was Richard Gossar.

The clinical

There were two

other students assigned to Methodist, Judith Harvey, who is
African-American, and Gabrielle Donofry, who is white.
Miller’s relationship with Gossar was good.

At first,

But in the second

semester at Methodist, the students began having problems with
Gossar.

They believed he was overly demanding, had unrealistic

expectations, and was difficult to deal with.

While speaking

with Harvey and Miller, Gossar would refer to them as “you
people” and speak to them in a condescending manner.
also yell at them.

He would

At one point, another CRNA at Methodist was

quizzing Harvey during a procedure.

When she asked if she could

answer the questions after the procedure, the CRNA said, “no, a

2

monkey could do this.

What are you a monkey?”

The students arranged a meeting with the program director
Michael Booth and assistant program director Julia Feliciano to
discuss the issues.

At this meeting, nobody mentioned racial

issues or discrimination at Methodist.
with Gossar to discuss the issue.

Booth and Feliciano met

Meanwhile, Booth and Feliciano

determined that the students were not getting a sufficient
variety of cases at Methodist and decided that they would rotate
Methodist students to other sites.
After the second semester at Methodist, all of the students
went to other hospitals.

Miller was transferred to Jefferson

Hospital (“Jefferson” or “Jefferson Hospital”).

She successfully

completed the Fall 2006 semester at Jefferson, and returned to
Methodist for the Spring 2007 semester.
Back at Methodist, Gossar remained the clinical coordinator.
Gossar continued his previous treatment of Miller, and Miller
again spoke with program director Booth.

Booth and Feliciano met

with the chief of the department at Methodist, and decided that
Gossar should be removed as clinical coordinator.
Staffieri was chosen to replace Gossar.

Carol

After Gossar was

removed, Miller continued to have issues with the CRNAs at
Methodist.

On April 4, 2007, Miller left early after a

miscommunication with a CRNA who had not meant for her to go home
after cleaning up a room.

On April 17, 2007, an operation was to

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be performed on a patient’s right arm.

Miller took the patient’s

blood pressure and left the room, leaving the cuff on the
patient’s left arm.

As a result of the blood pressure cuff on

the patient’s left arm, the operation was performed on the wrong
arm.
On April 20, 2007, Miller called Feliciano and left a
message on her voicemail complaining of racism at Methodist.
Feliciano emailed Miller saying she would like a meeting to
follow up.

Feliciano also suggested that Miller should contact

student services at the University to speak to them about the
racial issues and make a complaint of discrimination.

Miller

spoke with student services, but decided not to file a formal
complaint after hearing that it would be a long process of
investigation.

Feliciano met with Staffieri to discuss Miller’s

complaint and ask her if she witnessed any discrimination.

After

this, Miller says she overheard a meeting with the CRNAs and
other staff at Methodist where Staffieri told them of her
discrimination complaint and told them to “watch out” for Miller
and not discriminate against her.

Miller says that the CRNAs at

Methodist stopped speaking to her.
On May 28, 2007, a meeting was held to discuss Miller’s
performance in the nurse anesthetist program.

A meeting had not

yet occurred to discuss Miller’s discrimination charge.

At this

meeting, Miller was told that her evaluations at Methodist were

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not on track with those of her classmates.

She was given a plan

for improvement and placed on probation until August 2007.
Despite the probation, Miller still passed the Spring 2007
semester.

After this meeting, Miller was transferred away from

Methodist and back to Jefferson.

Before returning to Jefferson,

Miller spent a month at Our Lady of Lourdes Hospital, where she
received excellent reviews.

Miller asked Feliciano if she could

remain at Lourdes for another rotation instead of going to
Jefferson, but Feliciano told her she needed to go to Jefferson.
Back at Jefferson, the clinical coordinator was Marian Feil.
Feil and Miller clashed almost immediately.

Miller believed that

Feil was treating her harshly, suspecting that Feil had heard of
Miller’s complaint of discrimination at Methodist.

During a

discussion about Miller’s scheduling issues, Feil said to Miller
that she had “heard what had happened at Methodist” and Miller
was not going to “get over” like she did there.
Miller was trying to manipulate the schedule.

Feil thought
Feil referred to

Miller as “you people” on at least one occasion, saying that she
should consider something other than anesthesia.

At one point,

Feil yelled at Miller for arriving early to set up for an
operation, believing that Miller was trying to manipulate the
schedule by arriving early so she could leave early.
Nevertheless, Miller received satisfactory ratings from Feil in
her summative evaluation at the end of the semester, except in

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categories relating to attendance.

Feliciano ended Miller’s

probation, and Miller passed the Summer 2007 semester.
Miller continued to have issues during the Fall 2007
semester at Jefferson.

On October 4, 2007, Miller was working

with CRNA Katherine Celebre.

Miller was not performing the

procedure properly and was unprepared, so Celebre completed the
procedure.

On October 8, 2007, Miller was working with a doctor

for a spinal procedure.

After Miller prematurely removed a

needle, the procedure needed to be done again.

Miller was

criticized for this and for breaking sterility during the
procedure.

Miller received detailed negative evaluations for

these incidents.

After the University heard of these two

incidents, Miller was counseled that she was in jeopardy of being
dismissed from the program.

Miller was informed that she needed

to comply with a number of conditions to successfully complete
the semester, including not receiving any unsatisfactory or
requires improvement marks.
Miller received a number of mid-semester evaluations that
were critical of her performance.

These evaluations came from

Feil, Celebre and Debra O’Connor.

The CRNAs believed that Miller

was not at the point she should be at that stage in her
education, and worried that she could not function independently
as a CRNA.

After this, in November 2007, Miller went to Deborah

Heart and Lung Hospital for a rotation.

6

Miller received positive

evaluations at Deborah, but her weekly evaluations and care plans
were delayed in getting to Jefferson.
After returning to Jefferson in December, she received
notification informing her that she remained in jeopardy of
failing the program.

The notification reiterated objectives that

Miller needed to satisfy to remain in the program.

In December,

a number of CRNAs evaluated Miller’s performance negatively,
observing that her performance was unsatisfactory and unsafe.
These CRNAs included Lisa Loonstyn Gormley, who recounted several
incidents of unsafe and subpar work, and Eileen Dirvin, who rated
Miller as unsatisfactory in eight categories.

As a result,

Feliciano informed Miller that she would receive a failing grade,
and be dismissed from the program.
On January 8, 2008, the Associate Dean for Graduate Programs
sent Miller a letter recommending her dismissal.

The Promotion

and Progression Committee reviewed and approved the
recommendation that Miller be dismissed due to her inadequate
clinical performance.

Feliciano then denied Miller’s grade

appeal, and advised her of her right to appeal the decision in
accordance with the student handbook.

Miller appealed to the

Dean of the School of Nursing, Dr. Schaal.

After independently

reviewing Miller’s file, Dr. Schaal denied Miller’s appeal on
February 11, 2008, advising her that she found that she had
failed to demonstrate progress in meeting course objectives or

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meet the guidelines set forth by faculty.

On February 28, 2008,

Miller appealed the Dean’s decision to the Grade Appeals Board at
the University, which consisted of five individuals who were not
connected to the nurse anesthetist program.

The Board heard

testimony from witnesses offered by Miller and the University and
considered documentation in Miller’s file, including clinical
evaluations.

The Board voted unanimously to deny Miller’s appeal

and sent her a letter explaining its decision, noting that
Feliciano had properly considered a broad range of evaluations.
Miller then appealed the Board’s decision to the Dean of
Jefferson College of Health Professionals, Dr. Erdmann, who met
with Miller, considered her appeal and the documents supporting
it and issued a decision denying her appeal.
Separate from the appeal process, the Dean of Student
Affairs conducted an investigation into Miller’s charge of racial
discrimination.

The Dean interviewed people from Methodist and

Jefferson Hospitals, ultimately concluding that there was no
evidence of harassment, discrimination, or bias.

Rather, he

judged the staff behavior as related to Miller’s performance
issues.

Miller had the opportunity to meet with the Dean of

Student Affairs to discuss his findings, which she declined to
do.
Miller then filed a complaint of discrimination with the
U.S. Department of Education Office of Civil Rights.

8

The

Department investigated Miller’s complaint of a racially hostile
work environment and discrimination.

On June 4, 2009, the

Department issued a decision denying Miller’s complaint.
The Plaintiff filed this action in January 2011 against
Thomas Jefferson University Hospital, Gossar, Feil and Staffieri.
She then filed an Amended Complaint adding Thomas Jefferson
University.

The parties stipulated in November to dismissing

Jefferson Hospital and Gossar as parties.
includes five counts.

The Amended Complaint

Counts I, II and III claim violations of

42 U.S.C. § 1981 (“Section 1981") for racial discrimination,
retaliation, and harassment.
contract claim.
enrichment.

Count IV alleges a breach of

Count V asserts a common law claim for unjust

After the parties conducted discovery, the

Defendants filed three separate Motions for Summary Judgment, one
on behalf of the University, one on behalf of Feil, and one on
behalf of Staffieri.1
II.

STANDARD OF REVIEW

Summary judgment is proper “if 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.”
1

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

The Defendant has also filed a Motion to Strike Plaintiff’s Expert
Report and Testimony (Doc. No. 29). The Court has considered the report, the
Motion to Strike, and the response and reply thereto, and would have reached
the same conclusion with regard to the Motions for Summary Judgment with or
without the expert report. The report does contain some inadmissible
portions, but is not amenable to be struck in its entirety. Given that the
result would not change even if the Court were to consider the report in its
entirety, the Court need not address this issue further and has denied the
motion as moot by separate order.

9

An issue is genuine only if there is a sufficient evidentiary
basis on which a reasonable jury could find for the non-moving
party; a factual dispute is material only if it might affect the
outcome of the suit under governing law.

Kaucher v. County of

Bucks, 455 F.3d 418, 423 (3d Cir. 2006) (citing Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)).

In conducting

our review, we view the record in the light most favorable to the
non-moving party and draw all reasonable inferences in that
party’s favor.

Bowers v. Nat’l Collegiate Athletic Ass’n, 475

F.3d 524, 535 (3d Cir. 2007); Matsushita Elec. Indus. Co. v.
Zenith Radio Corp., 475 U.S. 574, 587 (1986).

However, the non-

moving party cannot rely on “bare assertions, conclusory
allegations or suspicions to show the existence of a genuine
issue.”

Podobnik v. U.S. Postal Serv., 409 F.3d 584, 594 (3d

Cir. 2005).

When the non-moving party is the plaintiff, she must

“make a showing sufficient to establish the existence of [every]
element essential to [her] case and on which [she] will bear the
burden of proof at trial.”

Celotex Corp. v. Catrett, 477 U.S.

317, 322 (1986).
III.
A.

DISCUSSION

Plaintiff’s Claims against Feil and Staffieri

Defendants Feil and Staffieri have moved for summary
judgment separately from the University.

They both argue that

there is no evidence that they acted in a discriminatory,

10

retaliatory, or harassing manner, and as hospital employees, they
cannot be liable for a dismissal decision made by the
University.2
The Third Circuit has held that there can be individual
liability under Section 1981.

See Al-Khazraji v. Saint Francis

Coll., 784 F.2d 505, 518 (3d Cir. 1986).

Specifically,

“employees of a corporation may become personally liable when
they intentionally cause an infringement of rights protected by
Section 1981, regardless of whether the corporation may also be
held liable.”

Liability for individuals under Section 1981,

therefore, contemplates intentional discrimination by a
individual defendant.
The Plaintiff has presented no evidence of intentional
discrimination by either Feil or Staffieri.

Furthermore, the

decision to dismiss her from the program was made by University
officials, not Feil or Staffieri.

Therefore, the claim for

discrimination under Section 1981 against Feil and Staffieri
cannot stand.
Nor can the claims of retaliation against Feil and Staffieri
move forward.

The Plaintiff has presented some evidence of

2

The claims for breach of contract and unjust enrichment in Counts IV
and V of the Amended Complaint are against the University only. (Am. Compl.,
at 10-11, Doc. No. 3). Therefore, the only claims against Feil and Staffieri
are those for discrimination, retaliation, and harassment under Section 1981.

11

Feil’s knowledge of the disciplinary complaint3 and Feil’s
unpleasant attitude towards and criticism of her.
Plaintiff has not shown intentional retaliation.

However, the
For a

retaliation claim, a plaintiff must show: (1) she engaged in a
protected activity; (2) there was adverse 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).

Feil’s evaluations of the Plaintiff and her occasional clashes
with the Plaintiff do not constitute adverse action.

While Feil

did criticize the Plaintiff, Feil rated her as satisfactory in
all categories, except those related to attendance, in her
summative evaluation of the Plaintiff at the end of the Summer
2007 semester.
Doc. No. 22).

(Ex. MF-108 to Ex. C to Def.’s Mot. for Summ. J.,
And even if Feil’s evaluations could be deemed

adverse action, the Plaintiff has not presented evidence, or even
claimed, that Feil made these evaluations with the intent to
retaliate against her.

Nor can the Plaintiff’s dismissal from

the program be the basis for the retaliation claim against Feil,
because Feil was not responsible for that decision.4

Therefore,

3

While there may be a genuine issue as to whether Feil knew of the
complaint, that issue is not material because the Plaintiff fails to make a
prima facie case of intentional retaliation by Feil.
4

There was also no causal link between the complaint and the
Plaintiff’s dismissal from the University, as discussed in further detail in
Section III.B.2 of this Memorandum.

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the Plaintiff simply has not put forward evidence to support an
intentional retaliation claim against Feil.
Although Feliciano shared the information of Plaintiff’s
complaint with Staffieri (Ex. D to Def.’s Mot. for Summ. J., at
109, Doc. No. 22), the Plaintiff has introduced no evidence of
intentional adverse action that Staffieri took after the
protected activity.

In fact, the Plaintiff states that Staffieri

never discriminated against or harassed her.

(Ex. B to Def.’s

Mot. for Summ. J., at 107:19-108:1, Doc. No. 22).

Therefore, the

Plaintiff has failed to make a case of retaliation against Feil
or Staffieri as individual defendants.
Finally, the Plaintiff has failed to support her claim of a
hostile work environment under Section 1981 with respect to Feil
and Staffieri.

Plaintiff admitted that Staffieri never engaged

in any harassment of her.
107:19-21, Doc. No. 22).

(Ex. B to Def.’s Mot. for Summ. J., at
The Plaintiff puts forth evidence of a

number of unpleasant incidents with Feil.

For example, Feil told

her she should not stay in the program, and could do better as a
nurse practitioner, Feil denied her requests for schedule
changes, and Feil yelled at her for arriving early to a
procedure.

(Id. at 118:4-21, 123:1-7, 123:19-125:2).

However,

the Plaintiff admits that Feil never used racially oriented
language towards her.

(Id. at 121:2-4).

Even considering all

allegations about the unpleasant interactions the Plaintiff had

13

with Feil, the Plaintiff’s claim for harassment, or hostile work
environment, under Section 1981 cannot stand.

For a hostile work

environment claim, “[t]he discriminatory conduct must be so
extreme as to amount to a change in the terms and conditions of
employment.

Unless they are extremely severe, off-hand 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).

The conduct the Plaintiff has shown

simply does not amount to the “severe and pervasive” harassment
envisioned by Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 67
(1986).

The Plaintiff has failed to show issues of fact that

would preclude summary judgment with regard to the hostile work
environment claims against Feil and Staffieri.
Therefore, the Court grants Defendant Feil’s and Defendant
Staffieri’s Motions for Summary Judgment.
B.

Plaintiff’s Claims Against the University
1.

Plaintiff’s § 1981 Discrimination Claim

The Plaintiff claims in Count I that she was dismissed from
the program at the University due to her race, in violation of 42
U.S.C. § 1981.

Section 1981 provides: “All persons within the

jurisdiction of the United States shall have the same right in
every State and Territory to make and enforce contracts...as is
enjoyed by white citizens...”

42 U.S.C. § 1981.

Section 1981

applies to the Plaintiff’s claims because the relationship

14

between university and student is contractual in nature.

See

Reardon v. Allegheny Coll., 926 A.2d 47, 480 (Pa. Super. Ct.
2007).
The Third Circuit applies the McDonnell Douglas burden
shifting framework to Section 1981 claims.

See Jones v. Sch.

Dist. of Phila., 198 F.3d 403, 410 (3d Cir. 1999).

The Plaintiff

must first establish a prima facie case of discrimination by
showing: (1) she belongs to a protected class; (2) she was
qualified for the position; (3) she was subjected to an adverse
action despite being qualified; and (4) she was dismissed under
circumstances that raise an inference of discrimination.

Sarullo

v. U.S. Postal Service, 352 F.3d 789, 797 (3d Cir. 2009).

After

the plaintiff has made this prima facie case, the burden shifts
to the defendant to articulate a legitimate, nondiscriminatory
reason for the adverse employment action.

See McDonnell Douglas

Corp. v. Green, 411 U.S. 792, 802 (1973) (“The burden then must
shift to the employer to articulate some legitimate,
nondiscriminatory reason for the employee’s rejection.”).

If the

defendant carries this burden, the plaintiff must then 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.”

Texas Dep’t of Cmty. Affairs v.

Burdine, 450 U.S. 248, 253 (1981).

A plaintiff can demonstrate

pretext by providing evidence that would lead a factfinder to

15

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.”

Jones, 198 F.3d at 413.

The Defendant contends that the Plaintiff has not met her
burden in establishing a prima facie case because she is not
qualified and cannot show circumstances that raise an inference
of discrimination.

(Mem. of Law in Supp. of Mot. for Summ. J. of

Def. Thomas Jefferson Univ., at 23-24, Doc. No. 22).

The Court

finds that even assuming that the Plaintiff has established a
prima facie case for discrimination, the Defendants have offered
a legitimate, nondiscriminatory reason for her dismissal from the
program and the Plaintiff has failed to present sufficient
evidence of pretext.
Even drawing all reasonable inferences in the Plaintiff’s
favor, the Plaintiff has not put forth enough evidence to allow a
reasonable factfinder to find that the Defendant’s reasons for
dismissing the Plaintiff were pretext for race discrimination.
The Defendant states that the Plaintiff’s unsafe clinical
practices and failure to sufficiently advance in her performance
are the reason for the Plaintiff’s failing grade and dismissal.
(Mem. of Law in Supp. of Mot. for Summ. J. of Def. Thomas
Jefferson Univ., at 25-26, Doc. No. 22).

The University has also

put forward ample evidence to support this reason, in the form of

16

evaluations and depositions from numerous actors and evaluators
at Methodist and Jefferson Hospitals.
The Plaintiff has submitted evidence regarding only three
arguably racial remarks, one of which was not directed at her.
The Plaintiff stated in her deposition that Gossar and Feil both
referred to the Plaintiff as “you people” on at least one
occasion.

(Ex. J to Pl.’s Resp. to Def.’s Mot. for Summ. J., at

76:6-14, 118:7-11, Doc. No. 27).

The Plaintiff has also

submitted evidence that on one occasion, a CRNA said to Judith
Harvey, another African American student, “a monkey could do
this.

What are you a monkey?”

(Ex. J to Pl.’s Resp. to Def.’s

Mot. for Summ. J., at 44:8-9, Doc. No. 27).

In Anderson v.

Wachovia Mortg. Corp., 621 F.3d 261 (3d Cir. 2010), the Third
Circuit opined that the use of the phrase “you people” was not
alone “so revealing of discriminatory animus that it would enable
a factfinder to conclude that a discriminatory attitude was, more
likely than not, a motivating factor in the decision...”
269.

Id. at

Furthermore, the decisionmakers at Jefferson (Feliciano,

Schaal, the Grade Appeals Board, and Erdmann) never used this
phrase.
In light of the Defendant’s powerful and substantiated
nondiscriminatory reasons for dismissing the Plaintiff from the
program, the Plaintiff simply has not fulfilled her burden to
demonstrate that the reason was pretext for discrimination.

17

A

plaintiff can show pretext by demonstrating “such weaknesses,
implausibilities, inconsistencies, incoherencies, or
contradictions in the employer’s proffered legitimate reasons for
its action that a reasonable factfinder could rationally find
them ‘unworthy of credence.’” Fuentes v. Perskie, 32 F.3d 759,
765 (3d Cir. 1994) (emphasis in original).

To do so, the

plaintiff cannot rely merely on “conclusory allegations or
suspicions to show the existence of a genuine issue.”
409 F.3d at 594.

Podobnik,

The Plaintiff’s discrimination claim is built

upon her suspicions that a multitude of hospital employees at
Methodist and Jefferson were all biased against her because of
her race and her charge of discrimination, and that they
accordingly gave her the low evaluations that led to her
dismissal.

These allegations, even combined with the few

arguable instances of racial hostility described above, are not
enough to allow a reasonable factfinder to find the University’s
stated reason to be “unworthy of credence.”

Accordingly, the

Court grants summary judgment for the Defendant on the
Plaintiff’s discrimination claim under Section 1981.
2.

Plaintiff’s § 1981 Retaliation Claim

The Plaintiff claims in Count II that she was retaliated
against in violation of Section 1981 after she complained of
discrimination at Methodist.

She states that she was ostracized

by employees at Jefferson Hospital, received negative

18

evaluations, and was ultimately dismissed from the program in
retaliation.

(Am. Compl., ¶ 52, Doc. No. 3).

The Supreme Court

has held that Section 1981 encompasses retaliation claims.
W., Inc. v. Humphries, 553 U.S. 442, 457 (2008).

CBOCS

To present a

claim of retaliation, a plaintiff must show: (1) she engaged in a
protected activity; (2) the employer (here, the University) took
an adverse action after or contemporaneous with the protected
activity; and (3) “a ‘causal link’ exists between the adverse
action and the protected activity.”
641, 649 (3d Cir. 2007).

Andreoli v. Gates, 482 F.3d

Regarding the Plaintiff’s dismissal

from the University program, the parties seem to agree that the
first two elements of the prima facie case, protected activity
and adverse action, have been fulfilled.

Therefore, the Court

will turn to the third element, the causal link.
For a causal link, the Third Circuit has found two main
factors relevant “in finding the causal link necessary for
retaliation: timing and evidence of ongoing antagonism.”
Abramson v. William Patterson Coll. of New Jersey, 260 F.3d 265,
288 (3d Cir. 2001).

Timing must be “‘unusually suggestive’ of

retaliatory motive before a casual link will be inferred.”
Krouse v. Am. Sterilizer Co., 126 F.3d 494, 503 (3d Cir. 1997).
For example, in Krouse, the Third Circuit found that nineteen
months was too attenuated to create a genuine issue of material
fact and upheld a grant of summary judgment.

19

Id.

Although

timing and ongoing antagonism are often the decisive factors, a
plaintiff may “substantiate a causal connection for purposes of
the prima facie case through other types of circumstantial
evidence that support the inference [of retaliation].”

Farrell

v. Planters Lifesavers Co., 206 F.3d 271, 280-81 (3d Cir. 2000).
Such other evidence includes inconsistent explanations.

Id. at

281.
The Plaintiff has failed to establish a causal link between
her protected activity and her dismissal from the CRNA program at
Jefferson University.

The Plaintiff complained of discrimination

on April 20, 2007, and was formally dismissed from the program on
January 8, 2008.

(Ex. D to Def.’s Mot. For Summ. J., at 106:2-

11, Doc. No. 22; Ex. P to Pl.’s Resp. to Def.’s Mot. for Summ.
J., Doc. No. 27; Ex. 1 to Ex. D to Def.’s Mot. for Summ. J., at
106:2-11, Doc. No. 22).

Therefore, almost nine months passed

after the Plaintiff’s protected activity before she was
dismissed.

Such timing is not so “unusually suggestive” such

that it will create an inference of retaliation.

Furthermore,

the Plaintiff passed two semesters (Spring and Summer of 2007)
between the time she made the complaint and when she was
dismissed for failing the Fall 2007 semester.
The Plaintiff has not introduced sufficient evidence of
ongoing antagonism, or other circumstantial evidence, to support
an inference of retaliation.

The Plaintiff asserts that the

20

CRNAs with whom she worked and who evaluated her negatively
during that time knew of her complaint, and gave her poor
evaluations because of it.
J., at 33, Doc. No. 27).

(Pl.’s Resp. to Def.’s Mot. for Summ.
However, the Plaintiff has only

submitted circumstantial evidence that one of these CRNAs may
have known of her complaint.

In her deposition, the Plaintiff

states that Feil said she “knew what had happened at Methodist;”
however, the context of this discussion was the Plaintiff’s
scheduling requests, not her charge of discrimination.

(Ex. J to

Pl.’s Resp. to Def.’s Mot. for Summ. J., at 123:4-7, Doc. No.
27).

Feil states that she did not know of the Plaintiff’s charge

of discrimination until after the Plaintiff was dismissed.
C to Def.’s Mot. For Summ. J., at 151:9-17, Doc. No. 22).

(Ex.
Even

crediting the Plaintiff’s evidence that Feil knew of her
complaint, she has not submitted evidence that any of the other
CRNAs who gave her negative evaluations knew of her complaint of
discrimination at Methodist.

To support her claim that the CRNAs

working at Jefferson knew of her complaint, the Plaintiff merely
speculates that the staff at the two hospitals were friendly and
had worked at both hospitals at times.5

5

(Pl.’s Resp. to Def.’s

The Plaintiff has submitted evidence that the CRNAs at Methodist knew
of her charge of discrimination, testifying at her deposition that she
overheard a meeting between Staffieri and the staff at Methodist about her
complaint. However, this evidence does not aid in creating a genuine issue of
material fact as to whether the staff at Jefferson, whose negative evaluations
ultimately contributed to the Plaintiff’s dismissal from the University, knew
of her complaint.

21

Mot. for Summ. J., at 33, Doc. No. 27).

This is the sort of

“bare assertion[], conclusory allegation[], or suspicion[]” that
will not suffice to defeat a motion for summary judgment.
Podobnik, 409 F.3d at 594.

Furthermore, the Defendant has

submitted evidence to the contrary.

(Ex. D to Def.’s Reply, at

20:19-23, Doc. No. 30; Ex. E to Def.’s Reply, at 10:2-9, Doc. No.
30).

Therefore, the Plaintiff has not shown evidence of ongoing

antagonism, or other circumstantial evidence, sufficient for a
causal link to support her claim of retaliation.
With regard to the Plaintiff’s claims that she was
retaliated against in the form of ostracism by employees at
Jefferson Hospital and negative evaluations, the Plaintiff has
failed to make a prima facie case on these claims.

The Plaintiff

admits to the circumstances that led to the negative evaluations,
for example, the incidents on October 4th and 8th of 2007.
Therefore, the claim of retaliation by negative evaluations
relies upon the Plaintiff’s suspicions that CRNAs were biased
against her, even though there is no evidence that they even knew
of her discrimination charge.

Similarly, the ostracism or

“silent treatment” that the Plaintiff claims also relies on these
unsubstantiated suspicions.

Even if these were adverse actions,

the Plaintiff would fail to make out a prima facie case because
there is no causal link to connect the Plaintiff’s charge of
discrimination and the ostracism and negative reviews, as there

22

is no evidence the CRNAs even knew of her charge of
discrimination.

Therefore, the Court grants summary judgment for

the Defendant on all of the Plaintiff’s retaliation claims under
Section 1981.
3.

Plaintiff’s § 1981 Hostile Work Environment Claim

The Plaintiff claims in Count III of the Amended Complaint
that the University subjected her to a hostile work environment
because of her race, in violation of Section 1981.

A hostile

work environment claim under Section 1981 is analyzed in the same
manner as under Title VII.

To succeed on a hostile work

environment claim, a plaintiff must prove: (1) she suffered
intentional discrimination on the basis of race; (2) the
discrimination was severe or pervasive; (3) the discrimination
detrimentally affected her; (4) the discrimination would have
detrimentally affected a reasonable person in like circumstances;
and (5) there is a basis for employer liability, such as
respondeat superior.

Kunin v. Sears Roebuck & Co., 175 F.3d 289,

293 (3d Cir. 1999).
In determining whether an environment is sufficiently
hostile or abusive to support a claim of discrimination, the
Court examines the totality of the circumstances and factors such
as “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

23

an employee’s work performance.”
524 U.S. 775, 787-88 (1998).

Faragher v. City of Boca Raton,

Simple teasing, offhand remarks and

isolated incidents are not enough; rather, the conduct must be
sufficiently extreme that it amounts to a change in the terms and
conditions of employment.

Id. at 788.

These standards serve to

ensure that Title VII, and by extension Section 1981, “does not
become a ‘general civility code.’” Id. (quoting Onacle v.
Sundowner Offshore Services, Inc., 523 U.S. 75, 80 (1998)).
“The basis for an employer’s liability for hostile
environment [racial] harassment depends on whether the harasser
is the victim’s supervisor or merely a coworker.”

Huston v.

Procter & Gamble Paper Prod. Corp., 568 F.3d 100, 104 (3d Cir.
2009).

When a harasser is a co-worker or other non-supervisor,

employer liability attaches “only if the employer failed to
provide a reasonable avenue for complaint, or, alternatively, if
the employer knew or should have known of the harassment and
failed to take prompt and appropriate remedial action.”

Id.

“An

employer’s remedial action is adequate if it is reasonably
calculated to prevent further harassment.”

Id. at 110. Courts

distinguish “employees who are supervisors merely as a function
of nomenclature from those who are entrusted with actual
supervisory powers.”

Griffin v. Harrisburg Prop. Servs., 421 F.

App’x 204, 208 (3d Cir. 2011).
In this case, the two people who the Plaintiff alleges

24

harassed her were both equivalent to co-workers, rather than
supervisors.

Although they may have been overseeing the

Plaintiff’s actions in the operating room as she practiced as a
student, these CRNAs were employees of the hospitals for whom
they worked, not the University where the Plaintiff was a
student.

The Plaintiff’s ultimate supervisors were the teachers

and program directors with the CRNA program at the University.
These individuals, like Feliciano, ultimately had supervisory
powers over the Plaintiff, and were empowered to discipline,
grade, and dismiss her.

Therefore, as the alleged harassment was

not performed by a supervisor, the University can only be liable
if there was no “reasonable avenue for complaint” or the
University “knew or should have known of the harassment and
failed to take prompt and appropriate remedial action.”

Huston,

568 F.3d at 104.
With regard to the alleged harassment by Gossar, there is no
basis for holding the University liable.

First of all, the

University had a formal complaint procedure that was available
and known to the Plaintiff.

(Ex. B to Def.’s Mot. for Summ. J.,

at 389:13-390:7, Doc. No. 22).

Second, the Plaintiff did

complain of Gossar’s behavior towards her and other students
several times, but it was not until she made her verbal complaint
to Feliciano on April 20, 2007 that she mentioned racial
harassment.

(Id. at 55:20-56:10; 389:5-18).

25

After the

University was on notice of this racial harassment at Methodist
and due to her deteriorating clinical performance, the Plaintiff
was removed from Methodist and reassigned to Jefferson.
to id.).

(Ex. 48

Removing the Plaintiff from the hospital where her

alleged harasser worked is appropriate remedial action, because
it is “reasonably calculated to prevent further harassment.”
Huston, 568 F.3d at 110.

Therefore, even if Gossar’s behavior

towards the Plaintiff can be deemed sufficiently severe and
pervasive for a hostile work environment, there is no basis for
holding the University liable.
With regard to the alleged harassment by Feil, the Plaintiff
never made any complaint, formal or informal, of racial
harassment by Feil to any University supervisor.

While it

appears that the Plaintiff may have clashed with Feil over a
number of issues, particularly scheduling, the Plaintiff simply
never brought any alleged harassment due to her race to the
University’s attention.
making complaints.

The Plaintiff knew of the procedure for

The University did not know, nor should it

have known, of any alleged harassment of the Plaintiff by Feil
while the Plaintiff was at Jefferson.

Therefore, even if the

harassment by Feil can be deemed sufficiently severe and
pervasive, there is no basis for holding the University liable.6
6

Furthermore, the instances of harassment that the Plaintiff describes
cannot be deemed sufficiently severe and pervasive for a hostile work
environment claim. At most, the Plaintiff describes a few “offhand comments”
and “isolated incidents” where her race might have been involved. See

26

Accordingly, the Court grants summary judgment for the Defendant
on the Plaintiff’s hostile work environment claim.
4.

Plaintiff’s Breach of Contract Claim

In Count VI of the Amended Complaint, the Plaintiff claims
that the Defendant breached the terms of a contract between the
University and the Plaintiff by failing to follow the terms of
the appeals process established by the University handbook.
Compl., at ¶ 59, Doc. No. 3).

(Am.

However, the Plaintiff does not

argue this theory for a breach of contract in her response to the
Defendant’s Motion for Summary Judgment; rather, she claims that
the Defendant breached a contract with the Plaintiff by failing
to provide her with the education that was promised in the
handbook and given to her peers.
Summ. J., at 49, Doc. No. 27).

(Pl.’s Resp. to Def.’s Mot. for
On either theory, the Court must

grant summary judgment in favor of the Defendants.
With regard to the claim that the Defendant breached a
contract with the Plaintiff by failing to follow the terms of the
appeals process, the Plaintiff has not shown that any damages
resulted from this alleged breach.

A private university’s

student handbook is viewed as a contractual agreement between the

Faragher, 524 U.S. at 778. The Plaintiff also describes a work environment
where she was yelled at or chastised for mistakes, and given the silent
treatment by other hospital employees. The Plaintiff admits to a number of
the mistakes for which she was chastised, and in a hospital environment, where
peoples’ lives are at stake, an occasional inappropriate reaction to a
student’s mistake is highly understandable. While it might not make for the
ideal learning environment, it simply cannot be termed a discriminatory
environment that is severe or pervasive.

27

university and the student.

Reardon, 926 A.2d at 480.

For a

breach of contract claim, a plaintiff must show: (1) the
existence of a contract; (2) breach of duty under that contract;
and (3) resulting damages.
(Pa. Super. Ct. 2006).

Lackner v. Glosser, 892 A.3d 21, 30

The Plaintiff has not shown that she

suffered any harm as a result of the University’s failure to
precisely follow the time frames for appeals suggested in the
handbook.

In her deposition, she admitted that she wanted the

University to take its time with her appeal, and that the
University’s taking its time did not cause her any harm, only
delaying her a bit longer in speaking to an attorney about her
options going forward.

(Ex. B to Def.’s Mot. for Summ. J., at

195-198, Doc. No. 22).

As the Plaintiff has failed to show

damages resulting from the alleged breach of contract, she has
not put forward a prima facie case for breach of contract.
With regard to the claim that the University failed to
provide her with the education promised in the handbook or given
to her peers, the Plaintiff has not submitted sufficient evidence
to sustain a breach of contract claim here either.

In

Pennsylvania, there is a cause of action for breach of contract
in some limited instances where “a private trade school has made
a positive representation that a certain curriculum will be
offered and the student then finds that such curriculum is not
available.”

Cavaliere v. Duff’s Bus. Inst., 605 A.2d 397, 404

28

(Pa. Super. Ct. 1992).

In these limited cases, “the nature of

the contractual undertaking and the breach thereof are clear and
the plaintiff may be able to establish a cause of action against
the offending institution.”

Id.

However, to prevail on such a

claim, a plaintiff must point to specific undertakings in the
handbook that were not provided.

Id.

Here, the Plaintiff claims

that her education was lacking because Methodist did not have the
variety of cases necessary for a well-rounded education.
However, the Plaintiff has not elaborated on the skills that she
did not develop due to Methodist’s failures.

Moreover, the

Plaintiff was rotated out to several other hospitals, including
Jefferson, Lourdes and Deborah, to supplement her education.
Therefore, like in Cavaliere, the Plaintiff’s claims simply
“invite[] the court to enter into precisely the kind of
generalized review of the entire course of instruction that so
many other courts have wisely refrained from doing.”

Id.

As such, the Plaintiff has failed to support her breach of
contract claim under either theory.

The Court grants the

Defendants’ Motion for Summary Judgment on the breach of contract
claim.
5.

Plaintiff’s Unjust Enrichment Claim

In Count V, the Plaintiff claims that the Defendant was
unjustly enriched by retaining the Plaintiff’s tuition and
failing to provide her with an education and degree.

29

An unjust

enrichment claim will not lie where there is a valid contract
between the parties.

Halstead v. Motorcycle Safety Found., Inc.,

71 F. Supp. 2d 455, 459 (E.D. Pa. 1999) (“[T]he finding of a
valid contract prevents a party from recovering for unjust
enrichment as the measure of damages is limited to that which is
provided for in the contract itself.”).

Because the relationship

between a student and university is governed by a contract in the
form of the student handbook, Reardon, 926 A.2d at 480, the
Plaintiff cannot recover under the theory of unjust enrichment.
Therefore, the Court grants the Defendant’s Motion for Summary
Judgment on the unjust enrichment claim in Count V.
IV.

CONCLUSION

For the foregoing reasons, the Court grants the Defendant’s
Motion for Summary Judgment in full.

1

A separate order follows.