RILEY v. ST. MARY MEDICAL CENTER et al
MEMORANDUM AND/OR OPINION. SIGNED BY HONORABLE GERALD A. MCHUGH ON 10/6/2015. 10/6/2015 ENTERED AND COPIES E-MAILED.(ahf)
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
ST. MARY MEDICAL CENTER,
OCTOBER 6, 2015
Plaintiff Denise Riley brings this action against Defendant, St. Mary Medical Center (“St.
Mary”) for unlawful age discrimination and retaliation under the Age Discrimination in
Employment Act (“ADEA”) and Pennsylvania Human Relations Act (“PHRA”). Plaintiff’s
employment as a nurse at St. Mary was terminated in January 2013. Riley claims that St. Mary’s
various reasons for her termination—including unsatisfactory job performance, numerous patient
complaints, and lack of improvement—all serve as pretext for age-based discrimination. St.
Mary has moved for Summary Judgment, arguing that Riley cannot demonstrate a genuine issue
of material fact that its proffered legitimate, non-discriminatory, non-retaliatory reasons for her
discharge are pretextual.
Having extensively reviewed the voluminous record and considered each individual
factual dispute raised by Riley, I conclude that although she has repeatedly challenged the
validity of the discipline received, she has not presented any record evidence that St. Mary’s
reasons for terminating her employment were in fact motivated by discriminatory or retaliatory
animus. Accordingly, I find that there are no material issues of fact that would allow a
reasonable juror to find in Plaintiff’s favor, and Defendant is therefore entitled to judgment as a
matter of law.
Factual Record 1
Plaintiff Denise Riley was born on May 4, 1951. Pl. Dep. at 40. She has been a licensed
nurse since May of 1995. Id. at 64. Riley worked as a registered nurse (“RN”) at St. Mary from
2004 until her termination in January of 2013. 2 Id. at 72–73, 77. Riley was 61-years-old at the
time of her discharge. Over the tenure of Riley’s employment with St. Mary, she received
numerous favorable performance evaluations. Her job performance was rated as “meets or
exceeds expectations” in every category of her annual performance review in 2005, 2006, 2008,
2009, and 2010 by prior managers Marsha Gray, Janet Montes, and Susan Snyder. Plaintiff’s
Memorandum of Law In Opposition to Defendant’s Motion for Summary Judgment (“Plaintiff’s
Opposition Brief”) at Exhibits G–K. 3
Despite these favorable reviews, over the course of her employment, several managers
disciplined Riley for “unsatisfactory performance.” See Defendant St. Mary Medical Center’s
Memorandum of Law in Support of its Motion for Summary Judgment (“Defendant’s Brief”) at
Exhibit 9–10, 12–14 (Corrective Action Notices from 2004, 2005, 2010, and 2011) and Exhibit
17 (2012 memorandum documenting complaints of four different staff members regarding
Riley’s job performance and problems noted by interim supervisor Jim Gentile). For example,
In considering all evidence in the light most favorable to Plaintiff, I have given careful consideration to each issue
highlighted in Riley’s opposition papers. Because Riley challenges essentially every piece of evidence that depicts
her job performance in a negative light, the vast factual record is recited here in painstaking detail.
Plaintiff’s employment at St. Mary was continuous other than a six-month return to her former post at a sister
hospital in 2007. Pl. Dep. at 64, 70–73, 77.
As clarified by Plaintiff, Defendant’s “performance appraisal system is somewhat confusing in that a performance
appraisal would be issued in the following year. For example, what Defendant refers to as Plaintiff’s 2011
Performance Appraisal is in actuality issued in June of 2012. To make the timeline clearer for this case, Plaintiff
herein refers to all performance appraisals as the date [that] they were completed and given to Plaintiff instead of the
time period which the review covers.” Plaintiff’s Opposition Brief at 2 n. 1. For the sake of simplicity and clarity,
this opinion adopts Plaintiff’s method for referencing performance appraisals.
Riley received disciplinary counseling for failing to wear gloves when removing a patient’s IV,
making inappropriate comments to a patient, failing to show good judgment in emergency
situations, lacking compassion towards a patient’s family, and generally for being negative and
not acting as a team player. See id. and Pl. Dep. at 136–37.
During her deposition, Riley testified that while working in the Ambulatory Surgery Unit
(“ASU”) in late 2009 or early 2010, co-worker Nina Mailey told her that she was “too old” and
“too weak” for the ASU. Pl. Dep. at 28–30. Mailey allegedly repeated these statements in front
of Susan Rohn, a member of Defendant’s Human Resources (“HR”) department at the time. Id.
at 33. Riley also claims that Mailey said, “A lot of people are waiting for you to retire.” Id.
During a meeting with HR on April 1, 2010, Riley informed Rohn of specific instances where
she felt she was discriminated against by Mailey because of her age. Id. at 321–22. Although St.
Mary maintains policies prohibiting discrimination and retaliation on the basis of any protected
category, including age, Riley did not learn of any corrective action taken by HR in response to
her complaint of age discrimination. Id.; Defendant’s Brief at Exhibit 6 (St. Mary’s Employee
Handbook explaining the Compliance Program and Code of Conduct). Riley alleges that Mailey
continued to make similar derogatory comments to her throughout 2010–2012. Id. at 111.
St. Mary employs a “Corrective Action” policy “to address any unacceptable or
inappropriate colleague behavior or performance.” Id. at Exhibit 8, P0073. Appropriate
corrective action is based on a variety of factors, including the “nature of the infraction, previous
disciplinary history, colleague status and length of service.” Id. The policy includes the
following four types of corrective action: (1) documented verbal counseling – oral counseling for
minor offenses that are documented in writing by the department head; (2) written warning –
requiring the employee and the supervisor to sign a Corrective Action Notice following verbal
counseling for a more serious offense; (3) final written warning – following a written warning
and requiring an action plan documenting expectations for improvement and consequences for
continued infractions; and (4) termination – following previous warnings or, if the offense is
serious enough, employees may be terminated without previous counseling or written warnings.
Id. at P0075. Although the four levels of corrective action are outlined as disciplinary options,
St. Mary’s policy explicitly allows for termination of “any colleague at any time with or without
any cause and with or without prior notice.” Id. at P0073. The policy later states, “Under certain
conditions, the corrective action process may be accelerated depending on the seriousness of the
offense. If the colleague’s behavior or policy infraction cannot be tolerated and/or may be a
threat to the health or safety of a patient, colleague, or visitor, or may damage the reputation of
the Medical Center in the community, immediate termination may be warranted.” Id. at P0074.
Riley challenges the validity of two Corrective Action Notices dated August 24, 2010,
suggesting that the discipline was unwarranted and the timing was suspicious given her April 1,
2010 complaint of age discrimination to HR. Plaintiff’s Opposition Brief at 6–7; Pl. Dep. at
136–41. Specifically, Riley suggests that the notices were unnecessarily harsh, as she was
disciplined twice for failing to wear gloves when removing a patient’s IV. Id. The two August
24, 2010 Corrective Action Notices both reference the August 18, 2010 incident where Riley
“failed to follow universal precautions when removing an IV from a patient,” but the second
Corrective Action Notice focuses not just on her failure to wear gloves, but also on Riley’s
“inappropriate comment” to the same patient asking if “he had any contagious diseases” after he
bled on her hands. Defendant’s Brief at Exhibit 12–13. In turn, the “expectation for
improvement” differs in the two August 24, 2010 Corrective Action Notices: one focuses on
“following universal precautions,” while the other focuses on the distinct expectation that Riley
cease making inappropriate comments to patients in violation of company values. Id. Despite
this distinction in the plain language of the Corrective Action Notices, Riley testified during her
deposition that St. Mary’s disciplinary response here was atypical and duplicative, “I’ve never
even heard of it to get two pink slips for the same thing, a verbal and a written. Okay? So that is
very – that is not what other younger nurses would get.” Pl. Dep. at 137–38. Riley further
testified that HR representative Rohn told her that it is “very unusual” to receive two pink slips
for one incident. Id. at 138.
Riley similarly contests the validity of the 2011 Corrective Action Notice, emphasizing
that the original corrective action, “Final Written Warning,” was downgraded to a regular
“Written Warning.” Pl. Dep. at 143–47. Riley testified that she made a pre-surgery
documentation error based on “a very common practice,” which ultimately led management to
the conclusion that the heightened disciplinary action represented by a Final Written Warning
was unfair. Id. Riley’s testimony does not challenge the underlying facts related to this
disciplinary incident, but only the severity of the initial corrective action, emphasizing the
ultimate result that the corrective action was reduced one grade. Id.
In 2012, Riley’s former manager Joyce Roman issued a poor performance review that
Riley purports to be largely inaccurate. Id. at 152–53, 157–59; Defendant’s Brief at Exhibit 18
(Riley Performance Appraisal dated 6/1/12). The review’s “Manager Comments” includes the
Denise will be placed on an action plan due to manager’s observations as well as
previous Interim managers’ observations and colleague input. Denise consistently
demonstrates problems with organization, efficiency and teamwork. She has been
observed responding to patients and their families in an inappropriate manner and
a common complaint with co-workers is that she frequently mumbles negative
comments under her breath. . . . Denise does not contribute to a team environment
and creates a burden on her co-workers by her inability to function independently.
. . . [In one instance, she] refused to take a patient, forcing her co-worker to take
both of them in addition to her other 2 patients. In another instance, Denise
continually asked another nurse who was precepting a new colleague to assist her
with patients, even though she had fewer patients than department ratio permits. .
. . Complaints by colleagues and visitors alike about Denise’s lack of tact and
diplomacy. . . Some recent examples of why Denise falls short of [providing the
best possible service to customers/patients] are asking a parent to hold pressure to
an IV site and then failing to provide the patient’s family with slings. Also, as
noted elsewhere, refusing to answer a patient’s question during the pre-op phone
call because she had “too many other calls to make.”
Id. When questioned about various specific examples of unacceptable work behavior from the
2012 performance review, Riley testified that the factual scenarios were “false” and/or that she
did “not recall exactly what happened.” Pl. Dep. at 152–59. Specifically, Riley maintains she
did not act harshly or abruptly around patients or other staff members. Id. at 153. Riley
concedes that she has been known to mumble under her breath, but explains her mumbling was
limited to “like, oh boy, stuff like that. Never curse words or anything like that, never. Just, you
know, general stuff that people mumble having a bad day.” Id. at 152.
For the first time in her career as an RN, Riley did not receive an annual pay increase as a
result of the 2012 evaluation. Pl. Dep. at 214–15. In response, Riley submitted a written
complaint of age discrimination dated June 5, 2012 challenging the accuracy of the 2012 review.
Plaintiff’s Opposition Brief at Exhibit Q (Riley’s five page written complaint dated June 5,
2012). Riley’s written complaint avers that the examples of unsatisfactory behavior listed in her
review were the result of hearsay from a select group of co-workers, and information from a
larger pool of co-workers would have cast doubt on the veracity of those allegations. Id. Riley
also noted her positive Performance Appraisal for the prior year, which led her to question “how
in one year I could have gone that bad, after reading this review I’m beginning to believe the
reason is I got one year too old.” Id. She further claimed she was “stunned” by the allegations in
her review. Id. Riley asserted that she was not on notice of any problems that could impact her
employment prior to her 2012 evaluation, as she was not “progressively notified at the time of
each alleged occurrence.” Id. Riley’s written complaint concluded that her 2012 evaluation
“was put together with an agenda in mind, based on hearsay from a previous manager, current
charge nurses and certain co-workers. . . . It is my opinion that this review is showing a pattern
of age discrimination.” Id.
Riley also discussed her concerns regarding the validity of the review directly with Joyce
Roman. Pl. Dep. at 165–66. Roman conceded that the review could be construed as a “peer
review” since Roman did not witness Riley’s work performance directly, but she did not
otherwise react to Riley’s complaints of age discrimination or retract any portion of the review.
Id. Riley testified that Roman “was very cold. And she said, you will go on the
[Communication and Re-education Strategies (“CARES”)] program. You are on a 90 day
[probation].” Id. at 166. When Roman was questioned about this interaction during her
deposition, she characterized it differently than Riley, explaining, “It was a passing comment that
was made, we had a little discussion about how old she actually was compared to how youthful I
thought she looked, and that was the end of it.” Roman Dep. 53–54. When questioned further
by counsel, Roman testified, “Denise did not pursue the issue with me to the extent that I would
have felt that it warranted further investigation or discussion.” Id. Also notable, Roman
testified, “Anything that I reviewed with Denise[,] her immediate response to everything was[,]
did Nina [Mailey] tell you that, and whatever it was we discussed, Nina [Mailey] had nothing to
do with, hadn’t reported anything to me, hadn’t voiced any concern to me, . . . because [Denise]
was convinced that all of this was cooked up by Nina [Mailey].” Id. at 47–48.
Riley’s written complaint precipitated a meeting between Riley, HR Director Donna
Marino, 4 and then-Director of Surgical Services Karen Benedict, Roman’s supervisor, where
Riley reiterated her concern that the 2012 performance review was “secondary to her age.”
Benedict Dep. at 27–28, 37. When questioned about the accuracy of the 2012 review during her
deposition, Benedict testified that she personally observed many of the behaviors and
unsatisfactory performance examples referenced in the review. Id. at 38–40. As a result, when
asked whether she attempted to corroborate the allegations in the 2012 review, Benedict testified,
“Well, as I said earlier, many of these I had witnessed myself, her curtness, her rudeness, her
refusal. These are things that I had actually seen myself. There were things that I had intervened
to help with patient care. So as far as investigating, I didn’t need to investigate. I had actually
seen these behaviors myself.” Id. Concerned that her complaints of discrimination were not
being adequately addressed, Riley complained up the management ladder to Benedict’s
supervisor, Vice President of Nursing Sharon Brown. Pl. Dep. at 183–84; Plaintiff’s Opposition
Brief at 9 (clarifying Brown’s official title). According to Riley, Brown responded that “she was
going to look into it” and “get it straightened out.” Pl. Dep. at 184. Brown allegedly further
advised, “I don’t think you have anything to worry about.” Id.
As suggested by Roman verbally and in the 2012 evaluation, Riley was placed on a
CARES Plan on June 13, 2012. See Defendant’s Brief at Exhibit 20 (6/13/12 CARES Plan).
Roman wrote, “This Communication and Re-education on Strategies Plan is being implemented
today for Denise Riley in response to her unsatisfactory performance as an ASU nurse and which
was reflected in her most recent performance appraisal. The performance of this CARES Plan is
Plaintiff’s Opposition Brief highlights an alleged contradiction in the record in that Donna Marino “astonishingly”
denied having any knowledge of Riley’s complaints of age discrimination prior to the filing of this lawsuit.
Plaintiff’s Opposition Brief at 9 (citing Marino Dep. at 31–37). As explained at length later in this opinion, I am not
persuaded that any of the alleged inconsistencies Plaintiff raises are material to my analysis of whether the
decisionmaker in question here was motivated by discriminatory animus in terminating Riley’s employment.
to assist Denise so that she can satisfactorily meet expectations and competencies required of
In August 2012, Donna McNeill became Nurse Manager of the ASU. McNeill Dep. at
36. McNeill holds a Master’s Degree in Nursing from Thomas Edison State College, and a
Bachelor’s Degree in Nursing from LaSalle University. Id. at 8–9. McNeill began her
employment at St. Mary as a Staff Nurse in 1996. Id. at 10. She was promoted to Orthopedic
Program Coordinator in 2003, a position she held until her 2012 promotion to Nurse Manager of
the ASU. Id. at 11–12. As Manager of the ASU, McNeill was responsible for overseeing
staffing and care of patients, being a liaison between surgeons, staff and patients, and managing
performance improvement measures with a focus on quality outcomes. Id. at 13.
When asked during her deposition if she had knowledge of her direct reports’ disciplinary
records upon taking her on her new role as Nurse Manager of the ASU, McNeill testified,
“everyone had a clean slate in my mind and in my opinion when I came on. There were 45
employees. Two things: One, I wasn’t going to go through their record; two, it’s only what I
witnessed. I wouldn’t dare go by what someone else might have.” Id. at 27–28. 5 Several new
disciplinary incidents involving Riley occurred under McNeill’s watch. On September 19, 2012,
McNeill allegedly witnessed Riley speaking loudly and rudely to a patient over the phone.
McNeill Dep. at 54–55; Defendant’s Brief at Exhibit 21 (9/26/12 Corrective Action Notice). In
response, McNeill issued Riley a written warning for unsatisfactory performance. Id.
Explaining the incident, McNeill testified,
Plaintiff emphasizes another alleged contradiction in the record regarding the deposition testimonies of defense
witnesses, arguing that Roman testified that she discussed performance concerns of individual nurses with McNeill
as part of her transition into her new role. Roman Dep. at 17–25. Defendant spends a significant portion of its
Reply Brief debunking this alleged inconsistency and arguing that Plaintiff’s Opposition Brief repeatedly
mischaracterized the voluminous record in this case. See Defendant’s Reply Brief at 1, 5–8. While Plaintiff’s
position regarding the potential contradiction has been noted, in viewing the record evidence as a whole, there are no
inconsistencies that have a material impact on my analysis.
I am all about kindness. I am all about respect. I am all about the patient. And
my mouth dropped when I heard the way [Riley] was talking to a patient. It was
awful. We are in the [business] of caring for people, putting them at ease, we’re
taking care of them at their worst possible moments. And the behavior that I
witnessed, the way she was talking to him, it was just unacceptable, it was
nothing that any patient or family member should have to go through when
they’re seeking [care and help] . . . [Riley was yelling] at the patient, nasty to the
patient, didn’t care if he cancelled his surgery, there was nothing helpful. . . . She
was not being supportive. She was not trying to help him with the situation. She
wanted to dismiss it. It was appalling.
McNeill Dep. at 54–55. While conceding that McNeill “was right there next to [her]” and “it
might have appeared that I was talking too loud to [the patient],” Riley has consistently
maintained that she did not yell at the patient. Pl. Dep. at 208–09; see also Defendant’s Brief at
Exhibit 21 (explaining the 9/19/12 incident, McNeill wrote, “I then called Denise to a private
area and counseled her that she can’t lose patients or yell at patients. Denise did not feel that she
Following the September 26, 2012 incident, McNeill also placed Riley on a CARES Plan
under her supervision. Defendant’s Brief at Exhibit 22 (9/26/12 CARES Plan). McNeill
testified that the purpose of the CARES plan was to help Riley improve her job performance.
McNeill Dep. at 61–64 (“[A CARES Plan] is an opportunity to help somebody . . . it isn’t
something that leads them to termination. It’s actually supposed to do the opposite.”). Riley
herself also concedes that McNeill was trying to help her. Pl. Dep. at 213. As part of her second
CARES Plan, Riley was required to meet weekly with McNeill in order to track her progress and
allow McNeill to offer support should Riley find herself struggling to improve in any of the
identified areas. Id.; Defendant’s Brief at Exhibit 22 (requiring Riley to complete continuing
education in the areas of communication, compassion and customer service). Though Plaintiff
met the requirements in some of areas of the program, McNeill noted that Riley still needed to
show improvement in the area of interacting with patients and colleagues. Defendant’s Brief at
Exhibit 24 (CARE Plan annotated by McNeill on October 11, 2012 showing Riley met minimum
requirements in most of her focus areas but still needed to improve her performance in the
category of demonstrating “sympathy and empathy when interacting with all patients and
On October 9, 2012, McNeill issued Riley a documented verbal warning after a patient
complained that she received poor discharge instructions on October 3, 2012 and felt the post-op
nurses ignored her needs. Defendant’s Brief at Exhibit 27 (10/9/12 Corrective Action Notice).
Judy McBride, the primary post-op nurse present at the time of this incident, received an almost
identical documented verbal warning. Id. at Exhibit 29 (10/9/12 Corrective Action Notice
addressed to Judy McBride including the same explanation as Riley’s 10/9/12 Notice). Riley
again challenges the validity of this discipline, emphasizing that she was not the primary nurse
caring for the patient who complained. Pl. Dep. at 216, 220 (“This wasn’t me . . . under no
circumstances should I get [disciplined] if I’m just sitting next to [the primary nurse] taking care
of my patients. . . You see what happens is when they did write somebody up if I was sitting next
to them they brought me [in] on it.”); Defendant’s Brief at Exhibit 27 (clarifying, “Denise was
not the primary nurse caring for the pt”). McNeill’s October 3, 2012 typewritten notes
documenting this patient complaint state, “. . . patient reported both post op nurses as being
inattentive to her needs. . . . She reported she could hear the nurses’ conversations which were
personal in nature as they were sitting at the desk instead of checking on their patients. . . . Nurse
who discharged pt: Judy McBride. 2nd nurse in SDS post-op: Denise Riley.” Defendant’s Brief
at Exhibit 28.
McNeill documented another patient complaint regarding a negative post-op experience
from October 3, 2012 where Plaintiff was the primary nurse. Defendant’s Brief at Exhibit 30
(McNeill’s typewritten notes documenting the complaint, including but not limited to: “Asked
nurse to help her with the tongue in her shoe, to which the nurse said yes, but didn’t. Reported
discharge instructions were not very good. Pt. wasn’t sure what she should do after she got
home. . . . had to ask volunteer for a drink because nurse was not checking on her. . . Nurse who
discharged pt: Denise Riley”); see also Exhibit 31 (St. Mary’s annotated post-discharge ASU
follow-up phone call script dated 10/3/12). During her deposition, Riley explained that the
underlying facts of this second incident were “silly,” leading her to the conclusion that the
disciplinary action was motivated by retaliation. Pl. Dep. at 222 (“They brought this up to me
about a tongue in a shoe . . . this is silly. A flap in the [shoe]. This is what I’m talking about
retaliation.”). McNeill, however, explained why Riley’s conduct here was significant from a
management perspective, “this may seem [like] not really a big deal to you about not fixing
somebody’s tongue in a shoe. But from someone that had anesthesia and might be on pain
safety, we’re worried about safety and balance and walking and falling. . . . if a patient complains
their footwear is not on correct, we’re putting that patient at risk for losing balance, tripping and
falling. So it’s a patient safety concern and it’s also that she said she would and she didn’t.”
McNeill Dep. at 74–75.
On December 10, 2012, McNeill issued a final written warning to Riley for a November
28, 2012 incident where Riley allegedly engaged in “unsafe practice” with a post-op patient.
Defendant’s Brief at Exhibit 32 (12/10/12 Corrective Action Notice). Riley’s final written
Explanation: Taking care of patient post-operatively who had a myelogram
performed. Attempted to get patient out of bed with assistance of another nurse.
Patient’s legs gave out from under her and two nurses had to strain to prevent
patient from falling. Patient later reported to charge nurse that she told Denise her
legs felt numb, but Denise told her to try to get up and walk to the bathroom
Expectation for improvement/Action plan: Any deviation from Professional
Quality Nurse Care, Any deviation from St. Mary Policy and/or Procedure, any
further incident or complaint will result in termination.
Id. See also McNeill Dep. at 78–81 (“. . . the patient was crying. She was very upset that her
legs gave out.”). Riley again characterizes the underlying facts that led to disciplinary action
differently. Riley testified that she “saved the patient from falling and still got in trouble for it.”
Pl. Dep. at 246–47. She explained that the patient was “doing great” and had to go to the
bathroom. Id. at 226–27. Riley offered to get a wheelchair, but the patient had a cane and said
she was fine. Id. at 227. Riley claims she performed the neuro assessment and required the
patient to “stand in place and march in place,” before walking. Id. Then, the patient walked
“about 6 to 8 feet perfectly fine. And then all of a sudden her legs gave out. So I prevented her
from falling. And I asked another RN to help me.” Id. When asked to clarify the details of this
incident, Riley specified that the patient “started to say I feel a little dizzy,” so Riley called out
for Nurse Anne Harkins, who helped her get the patient into a wheelchair. Id. at 228–29. After
helping the patient back to bed, Riley was relieved by Nurse Mailey in order to go to lunch. Id.
at 230. As a result, Riley did not have a chance to document the neuro assessment, which she
identifies as the real “problem” that triggered disciplinary action. Id.
When Riley returned from lunch, the patient was crying hysterically, with Nurse Mailey
and Nurse Beth Sharp at her bedside. Id. Riley was informed that Nurse Harkins went down to
the Emergency Room (“ER”) for an examination. Id. Riley was advised that she should also get
checked to make sure she did not injure herself when preventing the patient from falling. Id.
Riley’s back felt “a little funny,” so she agreed to go to the ER for an examination, where she
was treated for inflammation. Id. at 231. Although Riley’s injury did not require her to take
leave from work, Nurse Harkins’ more serious injuries qualified her for workers compensation
leave. Id. Riley theorizes that St. Mary was upset that Harkins received workers compensation.
Id. She also testified that the patient was “coerced by Nina [Mailey] and the charge nurse,” Beth
Sharp, to bring her complaint against Riley. Id. at 232. Riley further characterized the patient’s
complaint, as “crazy,” reasoning, “Why would I get someone out to fall?” Id. at 232–33.
McNeill was called to the scene to investigate the November 28, 2012 incident. McNeill
Dep. at 79–80. The patient was crying, and “said she told Denise she couldn’t feel her feet.” Id.
at 81. After Riley returned from lunch, McNeill also spoke with her directly and documented
notes from their conversation. Id.; Defendant’s Brief at Exhibit 32. McNeill’s notes largely
track Riley’s story, including her performance of a neuro check that tested sensitivity by
requiring the patient to march in place. Id. McNeill’s handwritten notes conclude by quoting
Riley’s response, “Why would I get her up if she couldn’t move her feet?” McNeill’s
investigation of this incident, which also included reviewing the patient’s chart and reviewing the
relevant standards of care, revealed that Riley failed to follow proper standards of care before
standing the patient up. Id. at 81–84. According to McNeill, Riley did not perform a “full neuro
check.” Id. When questioned about the neuro check specifically, Riley responded that she did
“some of it” and conceded that she did not document it. Id. Riley defended her behavior by
saying that “other people don’t document.” Id.
McNeill further testified that had Riley performed a full neuro check, it “would have
revealed that the patient was not safe to ambulate at that time.” Id. at 84–85. When specifically
questioned by counsel whether Riley’s account of this incident would satisfy proper standards of
care, McNeill testified that “the steps that [Riley] described” were “insufficient,” because the
limited neuro test that Riley performed only accounted for “one out of like six” assessments
required for a full neuro check. Id. at 85–87. For example, Riley’s neuro check did not address
strength, did not examine whether the patient could move her legs, and did not check for
capillary refill. Id. Moreover, according to McNeill, marching in place is not part of a proper
neuro check, as the patient should not stand until a neuro check has established that it is “safe to
get them up.” Id.
On December 18, 2012, Patient Advocate Angela Corsello e-mailed McNeill about a
complaint from the family of an 80-year-old patient who had a surgical procedure on November
30, 2012. Defendant’s Brief at Exhibit 1. The patient’s daughter called to convey that “her
family [was] very upset with the behavior and interaction with her mother’s nurse and her name
was ‘Reilly.’ ” Id. Corsello took thorough notes documenting the telephone conversation. See
id. Among other grievances, the family complained that Riley showed “no compassion” for the
patient’s discomfort, spoke in a “nasty, curt tone of voice,” and kept encouraging the patient to
“get up and move” despite her feeling “sick/ill” and “dizzy.” Id. According to the complaint,
when asked why she was being “so rude to the patient and family,” Riley allegedly replied that
she had to get the patient “moving so she can go home . . . because the staff was getting a new
round of patients coming in.” Id. The complaint concluded that Riley “was insane, ridiculous,
and there was no reason for her behavior.” Id. The same family reported that the staff in pre-op,
in contrast, was “wonderful.” Id.
When questioned about the November 30, 2012 family complaint, Riley did not dispute
treating the specific patient referenced, but again challenged the characterization of her behavior,
suggesting that Corsello was coerced. Pl. Dep. at 238–40; Defendant’s Brief at Exhibit 1
(handwritten notes, “Denise states she was ‘very nice to family + allowed 2–3 at a time back to
P.O.’ ”). Riley explained, “I don’t even know who [Angela Corsello] is. I mean, this is coerced
or subjective . . . I don’t know if [Corsello] was connected – if she was friends with Nina
[Mailey] and Jim Gentile and Karen Benedict or any of them. . . . But I could never be that type
of nurse – never. . . . that letter is a joke.” Id. at 240–42. In response to counsel’s questioning
regarding her allegations of coercion, Riley testified, “You could easily coerce a family . . . They
are calling me Riley here. No one in the world ever called me nurse Riley.” Id. at 252. Riley
hypothesized that someone may have suggested, “did Denise do this?” Id. When pressed further
about her coercion theory, Riley essentially conceded that the patient complaint may have been
authentic, testifying, “there are family members that you cannot make happy. It is not Disney
World. They see their mother in pain. . . . and they are family members that are just not really
great people. That’s all I can say. And apparently this person, if she did write this about me, it’s
not true.” Id. at 252–53.
On December 27, 2012, McNeill suspended Riley pending an investigation. Id. at 249–
50. The Corrective Action Notice references four incidents dated November 15, November 28,
November 30, and December 7, 2012, comprised of three patient/family complaints and the
November 28, 2012 patient safety incident. Defendant’s Brief at Exhibit 34. The Notice also
lists previous warnings issued on June 13, 2012, September 26, 2012, and October 9, 2012.
Shortly thereafter, McNeill recommended Riley’s termination. McNeill Dep. at 38. Following
her recommendation for termination, McNeill “pulled the data and the paperwork together,” and
arranged a meeting with her supervisor, Karen Benedict (Director of Surgical Services), and HR
Director Donna Marino to ensure that they agreed Riley’s termination was warranted. Id. at 30–
31, 42. They discussed Riley’s prior disciplinary write-ups and patient and family complaints.
Id. at 41. McNeill testified, “I remember talking about would we feel safe if she took care of one
of our patients . . . we didn’t feel she was a safe practitioner and she certainly didn’t have the
customer service skills that are needed when you’re dealing with patient and family members,
especially in situations like this. . . . it’s all about the patient and you need to focus on them, and
unfortunately . . . she didn’t change her actions or behaviors.” Id. at 41–42. Nurse Mailey was
not present at this meeting and had no involvement in the decision to terminate Riley. Id. at 38–
Accordingly, on January 3, 2013, St. Mary terminated Riley’s employment. Pl. Dep. at
256; Defendant’s Brief at Exhibit 38 (“Explanation: Repeated patient and patient family
complaints regarding communication and care with unsatisfactory improvement. Unsafe
practice and lack of documented neurological checks on patient prior to ambulating, putting
patient and staff member at risk for injury on 11/28/12.”). When McNeill told Riley that “after
careful review,” St. Mary decided to terminate her, Riley replied, “this is age discrimination.”
Pl. Dep. at 257. Riley subsequently cross-filed a Charge of Discrimination with the Equal
Employment Opportunity Commission and the Pennsylvania Human Relations Commission,
which included her complaints of age discrimination and retaliation. Defendant’s Brief at
a. Summary Judgment Standard
Defendant has moved for summary judgment, arguing it is entitled to judgment as a
matter of law because there is no genuine dispute as to any material fact warranting submission
to a jury. See Fed. R. Civ. P. 56. To defeat summary judgment, the non-movant must respond
with facts of record that contradict the facts identified by the moving party and may not rest on
mere denials. Celotex Corp. v. Catrett, 477 U.S. 317, 321 n.3 (1986); First National Bank of
Pennsylvania v. Lincoln National Life Insurance Co., 824 F.2d 277, 282 (3d Cir.1987). An issue
is “genuine” only if there is a sufficient evidentiary basis on which a reasonable jury could find
for the non-moving party, and a factual dispute is “material” only if it might affect the outcome
under governing law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). It is well
established that all record evidence must be construed in the light most favorable to the nonmoving party. Id. at 261, n.2.
b. Summary of Arguments
i. Defendant’s Position
St. Mary argues that there is no evidence to suggest that any of the reasons for
discharge—Riley’s risk to patient safety, multiple and continuing complaints about her negative
attitude from various sources, her failure to improve her behavior after being placed on CARES
Plans—are false. Defendant’s Brief at 19–20. Further, St. Mary argues that there is no evidence
to show that McNeill knew or had any reason to know that any of the complaints made of Riley
were baseless, nor is there evidence that the patients or families harbored age discriminatory
bias. Id. at 20. Moreover, St. Mary cites other employees—of varying ages—who received
written warnings from McNeill for unprofessional behavior and negative attitudes and were
subsequently fired by the hospital. Id. at 22; Defendant’s Brief at Exhibits 41–44 (Corrective
Action Notices for terminated employees born in 1965, 1966, 1978, and 1985). For instance, the
employee born in 1985 was discharged due to unsatisfactory performance in the areas of “patient
safety/satisfaction.” Id. at Exhibit 42. Specifically, she failed to send a specimen to the lab,
which required the patient to return to the hospital to have her blood work done for a second
time. Exhibit 42. Prior to this incident, the employee received a final written warning where her
“Expectation for improvement/Action Plan” consisted of “1) No further incidents of patient
callbacks; 2) Maintain a positive, friendly attitude; 3) Be willing to accept additional work/tasks
as needed to assist the department. “ Id. at Exhibit 48.
There are many other examples in the voluminous record in this case that McNeill held
those who reported to her accountable by consistently issuing performance based discipline. See,
e.g., id. at Exhibits 29, 46, 49–55 (employee disciplinary records, including 20+ Corrective
Action Notices issued by McNeill to other employees for “unsatisfactory performance,” “patient
safety,” “patient feedback,” and/or “inappropriate behavior”). Further, the average age of
employees working in the St. Mary ASU was 53 when last calculated during discovery. See
Defendant’s Brief at Exhibit 45 (listing the birth years of St. Mary ASU personnel as of
November 2014). During her deposition, Riley conceded that she is not aware of any nurse
engaging in a “minor infraction” and not being disciplined by McNeill for the conduct involved.
Pl. Dep. at 202.
Defendant emphasizes that Riley’s focus on Nina Mailey—a non-managerial level
employee who played no role in the decision to terminate Riley—is a “red herring.” 6
Defendant’s Brief at 24–25. Given that Mailey played no role in the ultimate decisionmaking
process, Defendant contends that her comments at most constitute so-called “stray remarks,”
which are further weakened by their remote temporal proximity to Riley’s actual termination. Id.
Defendant therefore concludes that any discriminatory animus allegedly on the part of Mailey is
not enough to support an inference of discrimination. Id. Finally, St. Mary submits that Riley’s
personal belief that the decision to terminate her employment was motivated by unlawful animus
is not enough to create a triable issue of fact absent competent record evidence supporting an
inference of discrimination. Id. at 25.
I also note that Mailey was born in 1956, making her only five years younger than Riley. Id. at Exhibit 56, ¶ 4
(Declaration of St. Mary HR Director Donna Marino).
With respect to Riley’s retaliation claim, Defendant argues that she has failed to establish
a prima facie case of retaliation. 7 In addition, in the event this Court finds that Riley has
established a prima facie case of retaliation, St. Mary contends that she has failed to create a
genuine issue of material fact for trial that Defendant’s legitimate reasons for her discharge were
pretext for unlawful retaliation. Id. at 30–31.
ii. Plaintiff’s Position
Riley relies on the same arguments in support of pretext for both her discrimination and
retaliation claims. See Plaintiff’s Opposition Brief at 27. First, Riley challenges the credibility
of St. Mary and decisionmaker McNeill based on alleged inconsistencies in the record.
Specifically, former employee Roman testified that she discussed the nurses in the ASU with
McNeill for at least one month, which McNeill omitted, perhaps intentionally, from her
deposition. Id. at 22; see supra n. 5. She further argues that McNeill skipped various steps in St.
Mary’s progressive disciplinary policy, and Defendant’s failure to follow its own policy supports
an inference of pretext. Plaintiff’s Opposition Brief at 22. Riley also argues that patient
complaints “almost never” resulted in written discipline during her tenure at St. Mary, attaching
four post-deposition Certifications of former St. Mary employees. Id. at 11, Exhibit R
(Certification of Lisa Braun), Exhibit S (Certification of Ronald Maisano, also discharged from
Specifically, St. Mary argues that Riley cannot meet her burden to establish a prima facie case that her termination
was caused by her June 2012 complaint of discrimination. Defendant’s Brief at 27. First, Defendant asserts that
McNeill was unaware of Riley’s age discrimination complaint, which was made three months before her
appointment as manager of the ASU. Id. at 27. Second, Defendant claims that the more than six-month period
between Riley’s June 2012 complaint and January 2013 discharge is too long to support an inference of
discrimination based on temporal proximity alone. Id. at 29. In addition, although Riley testified that she
complained of age discrimination in response to receiving oral notice of her discharge, this alleged complaint is
irrelevant, as the undisputed record shows that St. Mary had already made the decision to terminate Riley before
McNeill informed her of the decision. See Curay-Cramer v. Ursuline Acad. of Wilmington, Del., Inc., 450 F.3d 130,
137 (3d Cir. 2006) (“If subsequent conduct could prevent an employer from following up on an earlier decision to
terminate, employers would be placed in a judicial straight-jacket not contemplated by Congress.”) (citing Clark
Cnty. Sch. Dist. v. Breeden, 532 U.S. 268, 272 (2001)). Accordingly, Defendant argues that Riley would have to
come forward with record evidence in support of a retaliatory motive for her discharge, which she has simply failed
to do. Defendant’s Brief at 29–30.
St. Mary in January 2013); Exhibit T (Certification of Rosemarie Lindsey, also discharged from
St. Mary in May 2013); Exhibit U (Certification of Tricia Stoner-Panto, also discharged from St.
Mary in May 2011). 8
Next, Riley cites her previous favorable evaluations to cast doubt on Defendant’s reasons
for her termination, arguing that a “jury could certainly infer that it is unreasonable to believe
that a near 10-year employee who had always performed favorably suddenly had such
pervasive and uncontrollable problems that she was repeatedly disciplined and terminated
for performance reasons over the course of 6 months.” Id. at 23–24 (emphasis in original).
As reflected in this opinion’s synopsis of the extensive factual record, Riley also disputes
“essentially every discipline she was given.” Id. at 24. Finally, Riley argues that the record as a
whole supports an inference of pretext. Id. at 25. Riley’s Opposition Brief summarizes the
“record as a whole” as follows:
. . . it is clear that Ms. Riley was [sic] well-rated employee for almost a decade
that complained of age discrimination in June 2012 because she had received any
[sic] abysmal, untrue performance review. Ms. Riley complained to four (4)
individuals, following the chain of command up from her supervisor to the vice
president of nursing. Soon after those complaints, Donna McNeill began to
supervise Ms. Riley. Although McNeill’s predecessor, Joyce Roman, was
instructed [sic] on the ambulatory surgery unit when she began, McNeill claimed
that she was no [sic] told about the performance of any of the nurses on the unit
These four Certifications are the subject of a defense Motion to Strike and for Sanctions. Although I have noted
the irony in Plaintiff’s reliance on Certifications from three employees who were also terminated from St. Mary in
support of her argument that St. Mary “almost never” disciplined employees for certain conduct, in construing the
record in the light most favorable to Riley, I have taken into account the limited import of the four Certifications in
light of the fact that none of these employees reported to McNeill. See Defendant’s Motion to Strike at Exhibits E–
H (deposition transcripts for these witnesses). Perhaps exemplifying the limited application of this evidence to my
analysis of the record as a whole, when Braun was questioned during her deposition whether Riley discussed her
relationship with McNeill, Braun replied, “No, I don’t even recollect that name.” Exhibit R, Deposition of Lisa
Braun, at 76. Counsel was even more specific when questioning the other three witnesses who all expressly testified
that they had no knowledge of how McNeill handled patient complaints. See Exhibit F, Deposition of Ronald
Maisano, at 22–23 (“Q. Would I be correct that you have no knowledge or information regarding disciplinary
actions imposed upon employees in the ambulatory surgery unit by Donna McNeill? A. That would be correct. . . .
Would I also be correct that you have no knowledge regarding discipline being imposed by Donna McNeill in the
ambulatory surgery unit for patient complaints of rudeness? A. That would be correct.”); Exhibit G, Deposition of
Rosemarie Lindsey at 23–24 (almost identical questions and answers regarding the witness’ lack of knowledge of
McNeill’s disciplinary practices); Exhibit H, Deposition of Tricia Stoner-Panto at 43–44 (same).
until she began. Joyce Roman directly contradicted this and stated that she
instructed McNeill for at least one month. Within a matter of weeks, McNeill
issued an untrue corrective action notice and a CARES probationary plan to
Ms. Riley. From there, McNeill continued to pepper Ms. Riley with untrue
discipline up until the point of her termination.
Id. (emphasis in original).
c. Legal Analysis
Although Plaintiff’s counsel has seemingly advanced every viable argument to defeat
summary judgment, there is simply no record evidence of a genuine, material factual dispute that
would allow a reasonable juror to find in Plaintiff’s favor. Consequently, St. Mary is entitled to
judgment as a matter of law, as set out more fully below.
i. Plaintiff’s Discrimination Claim
Under the ADEA, it is unlawful for an employer “to fail or refuse to hire or to discharge
any individual or otherwise discriminate against any individual with respect to his compensation,
terms, conditions, or privileges of employment, because of such individual’s age.” 29 U.S.C. §
623(a)(1). 9 Age discrimination may be proven through direct or indirect evidence. Connors v.
Chrysler Fin. Corp., 160 F.3d 971, 972 (3d Cir. 1998). Because Plaintiff offers indirect evidence
in support of her claims, the McDonnell Douglas burden-shifting framework applies. Torre v.
Casio, Inc., 42 F.3d 825, 829 (3d Cir. 1994) (“although McDonnell Douglas was itself a race
discrimination suit under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, its
shifting-burden analysis is applicable to age discrimination claims, as well.”); accord Burton,
707 F.3d at 425–26.
Under the burden-shifting framework, Plaintiff must initially establish a prima facie case
of discrimination by a preponderance of the evidence. Sarullo v. U.S. Postal Serv., 352 F.3d
Within the Third Circuit, age discrimination claims brought pursuant to the ADEA and the PHRA are interpreted
identically at the summary judgment stage. See, e.g., Burton v. Teleflex Inc., 707 F.3d 417, 432 (3d Cir. 2013).
789, 797 (3d Cir. 2003). As first articulated in the McDonnell Douglas line of cases, and later
modified to apply in the ADEA context, Plaintiff will satisfy this burden by showing that: “(1)
she is forty years of age or older; (2) the defendant took an adverse employment action against
her; (3) she was qualified for the position in question; and (4) she was ultimately replaced by
another employee who was sufficiently younger to support an inference of discriminatory
animus.” Burton, 707 F.3d at 426 (citing Smith v. City of Allentown, 589 F.3d 684, 689 (3d Cir.
2009)). For the purposes of its Motion, Defendant concedes that Riley has established a prima
facie case of age discrimination. Defendant’s Brief at 15.
Once Plaintiff makes her prima facie case, the burden of production (but not persuasion)
shifts to the Defendant to offer a legitimate, non-discriminatory reason for the adverse action.
Burton, 707 F.3d at 426; Smith, 589 F.3d at 690. The Third Circuit has recognized that this
burden is “minimal” and “relatively light.” Burton, 707 F.3d at 426 (citations omitted).
Defendant can satisfy this step by providing evidence, which, if taken as true, would permit a
finding that it took the adverse action for a non-discriminatory reason. Id. Defendant need not
prove at this stage that its articulated reason for terminating Plaintiff’s employment was the
actual reason that motivated its decision. Shellenberger v. Summit Bancorp, Inc., 318 F.3d 183,
189 (3d Cir. 2003).
Here, Defendant easily satisfies this burden. As set forth earlier in great detail, St. Mary
provides a multitude of reasons in support of its ultimate decision to discharge Riley, including
the accumulation of patient complaints, Riley’s failure to improve her performance after
numerous verbal and written warnings, and ongoing patient safety concerns. Particularly given
the serious nature of Riley job’s responsibilities as an Ambulatory Surgery Unit nurse, the
hospital has without question set forth a legitimate and non-discriminatory reason for terminating
After the Defendant successfully rebuts the presumption of discrimination raised by the
Plaintiff’s prima facie case, the burden shifts back to the Plaintiff to demonstrate by a
preponderance of the evidence that the employer’s purported reasons for termination were
pretext for unlawful discrimination. Sarullo, 352 F.3d at 797. In order to demonstrate pretext,
the employee “must point to some evidence, direct or circumstantial, from which a factfinder
could reasonably either (1) disbelieve the employer's articulated legitimate reasons; or (2) believe
that an invidious discriminatory reason was more likely than not a motivating or determinative
cause of the employer's action.” 10 Burton, 707 F.3d at 427 (internal quotation marks and citation
omitted); Sarullo, 352 F.3d at 799–800; Simpson v. Kay Jewelers, Div. of Sterling, Inc., 142 F.3d
639, 645 (3d Cir. 1998) (“For example, the plaintiff may show that the employer has previously
discriminated against her, that the employer has discriminated against other persons within the
plaintiff's protected class or within another protected class, or that the employer has treated more
favorably similarly situated persons not within the protected class.”).
It is not enough for Plaintiff to show that the employer’s decision was wrong or mistaken.
Brewer, 72 F.3d at 331. An employer is permitted to take “an adverse employment action for a
There is some uncertainty in the circuits over the level of causation that must be shown following the Supreme
Court’s decision in Gross v. FBL Fin. Servs., Inc., 557 U.S. 167 (2009). Two non-precedential Third Circuit
opinions illustrate the nature and extent of conflicting interpretations of Gross. Compare Kassem v. Walgreens
Corporate, No. 14-3644, 2015 WL 3876641, at *1 (3d Cir. June 23, 2015) (“we must determine whether Kassem
has submitted evidence from which a factfinder could infer that Appellee's stated reasons for the adverse actions
were pretext for age discrimination and that his age was the ‘but for’ cause of his reduced hours or termination.”)
with Johnson v. Delaware Cnty. Juvenile Det. Ctr., 545 F. App’x 135, 139 (3d Cir. 2013) (“Johnson's claims of
[age] discrimination are based on a pretext theory, not mixed-motive and, thus, Gross is inapplicable.”). Here, of
course Defendant advances the interpretation that Gross requires a showing of “but for” causation, while Plaintiff
argues that Gross does not alter the typical burden-shifting analysis for purposes of summary judgment. Because
Plaintiff has failed to produce evidence that supports even a pre-Gross inference of discrimination, the parties’
dispute as to the governing legal standard has no impact on my analysis.
reason that is not ‘true’ in the sense that it is not objectively correct” so long as the employer
acted in good faith and not based on unlawful animus. See Watson v. Southeastern Pa. Transp.
Auth., 207 F.3d 207, 222 (3d Cir. 2000). “[T]he factual dispute at issue is whether a
discriminatory animus motivated the employer, not whether the employer is wise, shrewd,
prudent, or competent.” Fuentes v. Perskie, 32 F.3d 759, 765 (3d Cir. 1994); Kautz v. Met-Pro
Corp., 412 F.3d 463, 467 (3d Cir. 2005) (“We have applied the principles explained in Fuentes
to require plaintiffs to present evidence contradicting the core facts put forward by the employer
as the legitimate reason for its decision.”). Sitting en banc, the Third Circuit has clearly
instructed that “federal courts are not arbitral boards ruling on the strength of cause for
discharge. The question is not whether the employer made the best, or even a sound, business
decision; it is whether the real reason is discrimination.” Keller v. Orix Credit Alliance, Inc., 130
F.3d 1101, 1109 (3d Cir. 1997) (internal quotations, citations, and brackets omitted). Rather,
Riley may satisfy this burden by showing that Defendant’s proffered reasons are “weak,
incoherent, implausible, or so inconsistent that ‘a reasonable factfinder could rationally find them
unworthy of credence.’ ” Sarullo, 352 F.3d at 800 (quoting Keller, 130 F.3d at 1108–09). In
other words, Plaintiff satisfies her burden if she shows that “the employer's articulated reason
was not merely wrong, but that it was ‘so plainly wrong that it could not have been the
employer's real reason.’ ” Id.
So long as Plaintiff has put forth sufficient evidence to allow a factfinder to discredit the
employer’s justification, “she need not present additional evidence of discrimination beyond her
prima facie case to survive summary judgment.” Burton, 707 F.3d at 427 (citations omitted).
“This is because the factfinder may infer from the combination of the prima facie case, and its
own rejection of the employer's proffered reason, that the employer engaged in the adverse
employment action for an invidious reason.” Id. But, “to avoid summary judgment, the
plaintiff's evidence rebutting the employer's proffered legitimate reasons must allow a factfinder
reasonably to infer that each of the employer's proffered non-discriminatory reasons was either a
post hoc fabrication or otherwise did not actually motivate the employment action (that is, the
proffered reason is a pretext).” Fuentes, 32 F.3d at 764 (internal citations omitted). While this
fairly rigorous standard places a difficult burden on Riley, “[i]t arises from an inherent tension
between the goal of all discrimination law and our society's commitment to free decisionmaking
by the private sector in economic affairs.” Fuentes, 32 F.3d at 765 (citing Ezold v. Wolf, Block,
Schorr & Solis-Cohen, 983 F.2d 509, 531 (3d Cir. 1992)).
Of particular significance here, at “summary judgment, a plaintiff cannot rely on
unsupported allegations.” Jones v. United Parcel Serv., 214 F.3d 402, 407 (3d Cir. 2000). See
also Billet v. CIGNA Corp., 940 F.2d 812, 816 (3d Cir. 1991) (overruled in part on other
grounds) (“Merely reciting that age was the reason for the decision does not make it so.”). Riley
must identify record evidence demonstrating a genuine issue for trial. Jones, 214 F.3d at 402.
Simply put, because the ultimate inquiry concerns the decisionmaker’s mental state, Riley’s
perception of her own performance is not relevant to my analysis of whether St. Mary was in fact
motivated by discrimination. See, e.g., Simpson v. Kay Jewelers, Inc., 142 F.3d 639, 646–47 (3d
Cir. 1998) (“The ultimate inquiry is whether the decision was motivated by the affected
employee's age. . . . Simpson’s view of her performance . . . is not relevant”); Alvarez v. Royal
Atl. Developers, Inc., 610 F.3d 1253, 1266 (11th Cir. 2010) (“The inquiry into pretext centers on
the employer's beliefs, not the employee's beliefs and, to be blunt about it, not on reality as it
exists outside of the decision maker's head.”).
In Smith v. City of Allentown, for example, the Third Circuit ruled that Plaintiff Smith
failed to satisfy this burden in light of evidence that Smith, an at-will employee, clearly received
notice of his deficient performance, failed to meet performance goals, produced no evidence that
his employer had a mandatory progressive disciplinary policy or deviated from any such policy,
and had previously acknowledged that he had no reason to believe the defendant considered his
age when deciding to fire him apart from a single age-related comment referencing his fifty-fifth
birthday. 589 F.3d at 691–92. The Third Circuit found persuasive that the decisionmaker
consulted with Smith’s supervisor and others, “perused” Smith’s file, and had otherwise done a
thorough review of Smith’s performance history, concluding that under “these circumstances, no
reasonable jury could agree that appellees terminated Smith on the basis of age discrimination.”
Id. at 692.
Here, despite Plaintiff’s counsel’s relentless attempts to manufacture a genuine factual
dispute, there is simply no evidence that Defendant’s decision to terminate Riley had anything to
do with her age. Riley has failed to identify any record evidence suggesting that St. Mary’s
reasons for terminating her employment were false or pretextual. Riley’s sole piece of evidence
from which an inference of discrimination might be drawn is co-worker Mailey’s alleged
insensitive remarks that Riley was “too old and too weak” for the ASU and that others were
waiting for her to retire. However, these isolated statements were made over two years before
McNeill even became Plaintiff’s supervisor. Further, it is undisputed that Mailey was a nonmanagerial employee who played no role in the decision to terminate Riley’s employment.
Evidence that one co-worker, with no supervisory responsibility, and no involvement in the
decisionmaking process, made biased comments two years earlier, lacks meaningful probative
value. See Fuentes, 32 F.3d at 767 (3d Cir. 1994) (citing Ezold, 983 F.2d at 545).
Significantly, there is evidence to show that McNeill treated similarly situated employees
in a similar manner, having also terminated nurses born in 1965, 1966, 1978, and 1985 after
issuing written warnings regarding their unsatisfactory job performances. And although Riley
suggests that Mailey may have tainted the decisionmaking process or coerced patients into
making complaints about her, she fails to present any evidence that the patients or families were
coerced or that McNeill knew or had reason to know that the patient complaints were baseless.
In fact, the clear pattern in the evidentiary record of Riley repeatedly engaging in similar
unsatisfactory conduct triggering disciplinary measures from a variety of supervisors suggests
just the opposite—that patient/family, co-worker, and managerial complaints were voluntary and
based on shared experiences interacting with Riley.
In emphasizing Riley’s positive performance appraisals in previous years, Plaintiff
ignores the fact that Corrective Action Notices were also issued in 2004, 2005, 2010, and 2011.
In 2012, there is clearly an undisputed, heavily documented history of patient complaints and
managerial warnings regarding her behavior and interaction with co-workers and patients,
including patient safety concerns. The fact that several new incidents occurred under McNeill’s
watch, including one that was personally witnessed by McNeill, weighs against a conclusion that
discriminatory animus must have been the reason for Plaintiff’s firing. McNeill conducted an
extensive investigation of the incident that led to Plaintiff’s final written warning. Relying on
independent sources, McNeill suspended Plaintiff only after giving her numerous warnings, both
verbal and written. Finally, the plain terms of St. Mary’s disciplinary policy are clear that the
progressive disciplinary four-step procedure is not mandatory. Rather, the level of discipline is
supposed to be based on a variety of factors, including the severity of the infraction. In turn,
McNeill was well within her authority to expedite Riley’s progressive discipline by skipping
steps of the disciplinary procedure. The policy even lists patient safety concerns and harm to St.
Mary’s reputation in the community as examples of legitimate causes for termination. McNeill’s
record of imposing discipline in a wide range of situations, and terminating employees both
inside and outside the protected class, is consistent with a medical professional enforcing
standards of good care—not decisionmaking animus. In that respect, it bears mention that St.
Mary is responsible for maintaining the appropriate standard of care for the patients it treats.
Riley’s most fervent opposition to Defendant’s Motion is drawn from her own subjective
perception of her job performance. A cursory review of the lengthy record might suggest that
the sheer volume of alleged factual disputes must mean there is a genuine issue for trial, but an
in-depth analysis reveals that no such issue exists. While I sympathize with Plaintiff’s
frustration and distress over losing her job with St. Mary, controlling case law is clear that
federal courts do not oversee the business decisions of private employers and at-will employees.
Riley challenges St. Mary’s various responses to her conduct and often defends or attempts to
justify her own actions. But, most significantly, she does not challenge the underlying facts of
each disciplinary incident. Whether St. Mary reacted appropriately to each situation is simply
not for me to assess. Accordingly, Plaintiff has not raised a genuine issue of material fact that
would allow a reasonable juror to find in her favor, and her claim for discrimination fails at this
stage of the McDonnell Douglas framework.
ii. Plaintiff’s Retaliation Claim
Incorporating the above pretext analysis here, Plaintiff’s retaliation claim also fails.
Regardless of whether or not Plaintiff has established a prima facie case, she has not raised a
genuine issue of material fact that would allow a reasonable juror to infer that her termination
was motivated by retaliation for protected conduct. There is simply a dearth of evidence
suggesting that Plaintiff’s discharge was motivated by anything other than legitimate business
reasons. Therefore, Defendant is again entitled to judgment as a matter of law.
Based on the foregoing, Defendant’s Motion for Summary Judgment is granted in full.
/s/ Gerald Austin McHugh
United States District Court Judge
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