HEIT v. PENN DENTAL MEDICINE et al

Filing 110

MEMORANDUM AND/OR OPINION. SIGNED BY HONORABLE MICHAEL M. BAYLSON ON 11/29/2017. 11/29/2017 ENTERED AND COPIES E-MAILED.(sg, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
MARSHA SILVER HEIT

CIVIL ACTION

v.
NO. 16-2929
PENN DENTAL MEDICINE, TRUSTEES
OF THE UNIVERSITY OF
PENNSYLVANIA, DANA T. GRAVES,
D.D.S., DENIS F. KINANE, B.D.S.
MEMORANDUM
Baylson, J.
I.

November 29 , 2017

Introduction
In 2015, Plaintiff Marsha Silver Heit was terminated from her position as an

administrative coordinator at the University of Pennsylvania Dental School. She subsequently
filed this action alleging age discrimination, sex discrimination, religious discrimination, hostile
work environment, retaliatory discharge, and disability discrimination in violation of the Age
Discrimination in Employment Act, the Pennsylvania Human Relations Act, Title VII, and the
Americans with Disabilities Act against Defendants Penn Dental Medicine, Trustees of the
University of Pennsylvania, Dana Graves and Denis Kinane (Compl., ECF 1). At the close of
discovery, Defendants moved for summary judgment (Def.’s Mot. for Summ. J., ECF 85).
II.

Procedural History
Plaintiff filed a charge with the Equal Employment Opportunity Commission (EEOC)

and the Pennsylvania Human Relations Council (PHRC) on December 14, 2015. The EEOC
issued a right-to-sue letter on March 9, 2016. (Ex. A to Compl., ECF 1). The PHRC sent
Plaintiff a right-to-sue letter on May 2, 2016. (Ex. B to Compl., ECF 1).
Plaintiff filed this action on June 13, 2016. (Compl., ECF 1). The complaint initially
alleged four counts: age discrimination in violation of the Pennsylvania Human Rights Act and

Age Discrimination in Employment Act (Counts I and II); discrimination on the basis of sex and
religion, hostile work environment, and retaliation in violation of Title VII of the Civil Rights
Act of 1964 (Count III); and a violation of the Americans with Disabilities Act (Count IV). (Id.).
Plaintiff subsequently filed an “amendment” to the Complaint spelling out the retaliation claim
more fully, which was designated as Count V. (Am. Compl. Count V, ECF 31).
A contentious discovery period ensued, during which Plaintiff unsuccessfully tried
several times to be permitted to take the deposition of the former provost of the University of
Pennsylvania, Vincent Price. (Order denying discovery, ECF 67).
On August 30, 2017, Defendants moved for summary judgment. (Def.’s Mot. for Summ.
J., ECF 85).

Plaintiff’s initial response in opposition to Defendants’ motion for summary

judgment did not conform to this Court’s practice rules because it lacked a counterstatement of
material facts in numbered paragraphs. (Pl.’s Opp. to Def.’s Mot. for Summ. J., ECF 90). This
Court subsequently entered an order requesting that Plaintiff submit a separate document
admitting or denying each of Defendants’ facts, with record citations supporting any denial, and
permitting her to file a separate statement of additional facts in numbered paragraphs warranting
denial of summary judgment. (Order, ECF 92). On October 11, 2017, Plaintiff submitted a
counterstatement of material facts in which she responded, paragraph by paragraph, with
admissions or denials of Defendants’ material facts, which included record citations as to some,
but not all, of defendants’ facts. (Pl.’s Response to Defs.’ SOF, ECF 97). Plaintiff did not
submit a separate statement of additional facts.
On October 12, 2017, Plaintiff filed an “Emergency Motion for Discovery” pursuant to
Fed. R. Civ. P. 56(d)(2), which was limited to the issue of whether this Court would grant her

2

permission to take the deposition of the former provost of Penn. (Pl.’s Emergency Mot. for
Discovery, ECF 99). The motions are now ripe for decision.
III.

Factual Background
The following facts are undisputed.
A. Plaintiff’s History at Penn
Beginning on November 1, 2007, Plaintiff worked as a part-time academic coordinator in

the Periodontics Department at Penn Dental. (Compl. ¶ 15). Effective March 14, 2008, she
began working full-time in the Periodontics Department, reporting to then-Department Chair Dr.
Joseph Fiorellini. (Offer Letter, Ex. 2 to Def.’s Mot for Summ. J., ECF 85). Dr. Fiorellini
reported to the dean of Penn Dental, Defendant Denis Kinane. (Fiorellini Dep. 7:12-14, ECF
101). Dean Kinane testified that he had regular, monthly, one-one-one meetings with the thenprovost of the University of Pennsylvania, Vincent Price. (Kinane Dep. 15:13-19, Ex. 12 to
Def.’s Mot. for Summ. J.).
Plaintiff worked in this position until she was terminated on November 30, 2015.
(Termination Letter, Ex. 56 to Def.’s Mot for Summ. J.). Plaintiff was required to submit weekly
timesheets showing the hours she worked on each day of the week. (Farero Decl. ¶ 25, Ex. 15 to
Def.’s Mot for Summ. J.). Plaintiff, a Jewish woman, was 48 years old at the time of her
discharge. (Compl. ¶ 13).
B. Plaintiff’s testimony about 2010-13 incidents involving Dean Denis Kinane
According to Plaintiff’s testimony, during the period 2010-13, while she was working for
Dr. Fiorellini, Plaintiff experienced or heard about several incidents involving Dean Kinane.
Plaintiff testified that that in 2012 or 2013, she heard Dean Kinane refer to a female
colleague “waddling like a duck.” (Heit Dep. 83:10-84:21, ECF 97-1). Plaintiff testified that
she observed Dean Kinane, who was married, dancing closely with another married colleague at
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a wedding in 2010 or 2011, which she deemed inappropriate, but that the encounter did not
appear to be non-consensual. (Heit Dep. 87:4-89:8).
Plaintiff testified that the employee who was the subject of the “waddling” comment also
told her that Dean Kinane had taken food away from her on one occasion. (Heit Dep. 84:4-7).
Plaintiff testified that a colleague, whose parents were Holocaust survivors, told her that
Dr. Kinane had referred to his parents’ having been sent to “Camp Auschwitz.” (Heit Dep. 97:715).

According to Plaintiff’s testimony, Dean Kinane made remarks to other employees

regarding Jews, “years” before her termination, which those employees then recounted to her.
(Heit Dep. 278:1-279:3). Another Penn Dental employee testified that Kinane “would make
comments about how all of our alumni from a certain age are Italians and Jews” and the school
needed “a Jew to work with” Jewish alumni. (M.G. Dep. 29:4-7). 1
Plaintiff further testified that in 2013, a student approached her to report a remark that
Dean Kinane had made to her boyfriend to the effect that he “was lucky to have somebody like
that to go to bed” with; Plaintiff reported this encounter to her boss, Dr. Fiorellini. (Heit Dep.
99:16-101:22). Dr. Fiorellini testified that he reported the incident to Penn’s general counsel, but
was unsure what happened subsequently. (Fiorellini Dep. 29:19-32:17).
According to Plaintiff’s testimony, a staff dentist informed Plaintiff about an incident
involving another dental student, who was, as Plaintiff put it, “in some form sexually harassed by
Dean Kinane” (Heit Dep. 303:6-7, 323:6-23). She testified that told a law professor about this
incident by phone, and claims to have called someone at “central HR,” but could not recall
details of the latter conversation. (Heit. Dep. 92:9-94:18).

1

In her counterstatement of facts, Plaintiff asserts that she “heard Kinane directly refer to Jews,”
but does not provide any record evidence for this assertion, and the Court can find none. (Pl.’s
SOF ¶ 11).
4

Plaintiff became aware of a third alleged incident involving another female Penn
employee. At his deposition, Dean Kinane admitted to having touched the female employee in
his office. (Kinane Dep. 13:17-24). Dean Kinane testified that former provost Price told him at
one of their regular meetings that “this was not appropriate.” (Kinane Dep. 15:6).
Plaintiff testified that all of these incidents occurred in 2012 or 2013. (Heit Dep. 111:1522). Most of Plaintiff’s testimony regarding all supposed incidents of sexual harassment, and all
of her testimony regarding anti-Semitism, is hearsay for which she lacks personal knowledge.
Although Plaintiff testified that Dean Kinane made her cry on one occasion when she did not
know the answer to a question, she did not testify to any other inappropriate behavior, or any
hostility, to her. (Heit Dep. 302:20-303:1).
C. Events leading up to Plaintiff’s termination
Until July 1, 2015, Plaintiff reported to Dr. Fiorellini, Chair of the Periodontics
Department, with whom, she testified, she had a good relationship. (Heit Dep. 74:19-75:14).
When Dr. Fiorellini left for sabbatical, Defendant Dr. Dana Graves took over as interim chair of
the department, and Heit began reporting to him. (Graves Decl. ¶¶ 9-10, Ex. 20 to Def.’s Mot.
for Summ. J., ECF 85). Both Plaintiff and Dr. Graves described a difficult relationship. Dr.
Graves stated in his declaration that “[w]ithin the first month that I was Interim Chair and Ms.
Heit reported to me, I noticed that Ms. Heit struggled to complete her tasks and responsibilities
in a timely and efficient manner without mistakes or need for correction.” (Graves Decl. ¶ 12).
Plaintiff testified that Dr. Graves was “argumentative” and “expected more than one person
could possibly do.” (Heit Dep. 76:19-20). During the summer of 2015, Plaintiff also provided
administrative support to Dr. Panagiota Stathopoulou, another faculty member. (Stathopoulou
Decl. ¶ 8, Ex. 6 to Def.’s Mot for Summ. J).

5

On July 14, 2015, Plaintiff filed paperwork requesting intermittent FMLA leave for the
period from August 1 to November 1, 2015, which was granted. (FMLA Request Form, Ex. 30
to Def.’s Mot. for Summ. J.). Plaintiff checked off boxes for “Serious health condition that
makes me unable to work” and for “Intermittent Leave” but did not specify what that condition
was on the form. (Id.). At her deposition, Plaintiff testified that she sought FMLA leave for
depression and anxiety, which she said was “[c]aused by the workplace,” and that she was so
anxious about the work environment that she drove to the office in tears “almost every day” for
the last two years she worked at Penn Dental. (Heit Dep. 82: 13-14, 219:10, 305:5-8). However,
she denied that increased demands at work or pressure from supervisors had made her symptoms
worsen prior to her requesting FMLA leave. (Heit Dep. 83:1-7). She had long been treated for
minor depression, discussed work-related anxiety with her counselor, and took antidepressants
and anti-anxiety medication. (Heit Dep. 144:14-154:13). It is undisputed that Dr. Graves, Dr.
Stathopoulou, and Mr. Farero did not know why she requested FMLA leave. (Def.’s Reply to
Pl.’s Response to Def.’s Statement of Facts ¶ 49, ECF 104-2; Graves Decl. ¶ 16; Farero Decl. ¶
14; Stathopoulou Decl. ¶ 17).
In summer 2015, at about the time Plaintiff began taking intermittent FMLA leave,
Defendants decided to provide Plaintiff with additional support.

Plaintiff asserts that she

initiated the request. (Graves Decl. ¶¶ 15-16; Heit Dep. 205:23-206:1). Plaintiff, Dr. Graves,
Dr. Stathopoulou, and the HR Director, Tony Farero, met and it was decided that Tory O’Neill,
an administrative assistant in another department at Penn Dental who had worked successfully
for Dr. Stathopoulou in the past, would take on these duties. (Stathopoulou Decl. ¶ 18; Heit Dep.
205:20-208:12). When Plaintiff was taking an FMLA day, Ms. O’Neill, who was substantially
younger than Plaintiff, would fill in. (Stathopoulou Decl. ¶ 18; Heit Dep. 205:9-18).

6

On Monday, November 16, 2015, Plaintiff stayed home sick from work. (Heit Dep.
26:20-21). Dr. Graves was out of town that day at a conference, and stated in his declaration that
he signed Plaintiff’s weekly timesheet after his return. (Graves Decl. ¶¶ 26-27). Plaintiff’s
timesheet for that week, which bore her signature and was dated 11/18/15, stated that she had
been in the office for eight hours on Monday, which would have been November 16.
(Timesheet, Ex. 48 to Def.’s Mot for Summ. J.)
According to Debra Duffy, an employee in the Penn Dental Fiscal Operations
Department, employees who are required to fill out timesheets must submit manual timesheets
each Thursday for that work week. (Duffy Decl. ¶ 6-7, Ex. 57 to Def.’s Mot for Summ. J.).
Although Plaintiff initially testified that she filled out timesheets each Thursday for the following
week—and she therefore could not have predicted that she would be out sick—when crossexamined about the date of her timesheet, she testified that she “made a clerical error” and that
“maybe [she] got the date wrong.” (Heit Dep. 28:5-16). At her deposition, she admitted that the
timesheet bore her signature, but denied postdating it. (Heit Dep. 28:3-17).
Upon suspicion that she might not have been in the office, Mr. Farero initiated an
investigation, which confirmed that she was not actually in the office on Monday, November 16,
2015. (Farero Decl. ¶¶ 25-29). On November 20, 2015, Mr. Farero confronted Plaintiff about the
timesheet in question, and informed her that conduct could be found to be falsifying records, a
fireable offense. (Farero Decl. ¶ 30). Plaintiff testified that this conversation was the first time
that she realized that her time sheet was incorrect. (Heit Dep. 39:7).
On November 24, 2015, Plaintiff contacted Ms. Duffy to ask how she and Dr. Graves
could correct her timesheet, and on November 27, 2015 wrote a letter to Dr. Graves requesting to
keep her job. (Email, Ex. 53 to Def.’s Mot. for Summ. J.; Letter to Dr. Graves, Ex. 55 to Def.’s

7

Mot. for Summ. J.). Nevertheless, Mr. Farero and Dr. Graves met with Plaintiff on November
30, 2015 to inform her that she was terminated effective December 1, 2015, and handed her a
letter, signed by Dr. Graves, to that effect. (Termination Letter, Ex. 56 to Def.’s Mot. for Summ.
J). In his declaration, Dr. Graves stated that he made the decision to terminate Plaintiff “based
solely on Ms. Heit’s clear violation of Penn policy and her prior poor performance” and did not
take into account her “age, gender, religion, or the fact that she had previously taken FMLA
leave.” (Graves Decl. ¶¶ 43-44). Ms. O’Neill took over Plaintiff’s responsibilities after her
termination. (Graves Decl. ¶ 47; Heit Dep. 205: 9-11).
Dean Kinane testified that he was “not clear about the circumstances related to”
Plaintiff’s termination in 2015, and heard about it only after the fact. (Kinane Dep. 47:1448:10). He also testified that he was not aware, prior to her termination, that Plaintiff had made
any allegations of inappropriate sexual relationships or disparate treatment based on age, race or
religion. (Kinane Dep. 49:19-50:8). The former provost of Penn, Vincent Price, submitted a
declaration in which he averred that he had no knowledge of Plaintiff or the circumstances of her
dismissal. (Price Decl., ECF 65-1).
D. Disputed facts
Plaintiff principally disputes the reason for her termination. 2

Without any record

evidence, she constructs a theory whereby Dean Kinane, working through Dr. Graves,
orchestrated her firing in retaliation for her making complaints. She claims that these complaints
were passed along to former provost Vincent Price. (Pl.’s Opp. to Def.’s Mot. to Summ. J., ECF

2

Defendants allege that in spring 2015, Plaintiff was investigated for receiving free dental care.
Plaintiff admitted that shortly after the investigation, she referred the case of two other dentists,
whom she believed to be working only part-time but were receiving full-time benefits, to a thirdparty provider called Ethics Point. (SOF ¶¶ 23-32). However, Plaintiff argues that this issue is
not relevant to the claims in her complaint, and the Court agrees.
8

90 at 2). She asserts that Dean Kinane waited until Dr. Fiorellini was on sabbatical to terminate
her. (Id. at 14).
Dean Kinane disputed the particulars of incidents that Plaintiff testified to having heard
about. For example, at his deposition, he denied having made an inappropriate comment to a
Penn Dental student’s boyfriend at graduation.

(Kinane Dep. 62:9-13).

He also recalled

touching another student’s shoulders, when Plaintiff testified that she heard that he pulled the
student onto his lap. (Kinane Dep. 13:22, Heit Dep. 113:3-7). However, these factual disputes
are not issues of material fact as discussed below.
With respect to the timesheet that led to her firing, she alleges that Dr. Graves’ signature
on the timesheet prior to the investigation creates an inference of pretext: if he signed off on the
timesheet, for which she was later fired, the firing must necessarily have been pretextual.
Without citing to relevant record evidence, she dismisses any allegation by Defendants of
dissatisfaction with her performance as “irrelevant” or “disputed.” (SOF ¶¶ 55-60). She also
testified in her deposition that when Mr. Farero brought the issue of the timesheet to her attention
on November 20, 2015, he told her that the timesheet investigation was “retribution… for the
initial complaints against Dean Kinane.” (Heit Dep. 18:13-22). Mr. Farero, who was not
deposed, stated in his declaration that at the time of Plaintiff’s dismissal, he was “not aware of
any complaints or reports made by her regarding inappropriate behavior by Dean Kinane,
discrimination, harassment, retaliation, or any perceived hostile work environment at Penn
Dental Medicine,” and did not mention this alleged comment. (Farero Decl. ¶ 43).
IV.

Legal Standard
Summary judgment is appropriate if the movant can show “that there is no genuine

dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.
R. Civ. P. 56(a). A dispute is “genuine” if “the evidence is such that a reasonable jury could
9

return a verdict for the non-moving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986). A factual dispute is “material” if it “might affect the outcome of the suit under the
governing law.” Id.
A party seeking summary judgment bears the initial responsibility for informing the
district court of the basis for its motion and identifying those portions of the record that it
believes demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett,
477 U.S. 317, 322 (1986). Where the non-moving party bears the burden of proof on a particular
issue at trial, the moving party’s initial burden can be met simply by “pointing out to the district
court that there is an absence of evidence to support the non-moving party’s case.” Id. at 325.
Summary judgment is appropriate if the non-moving party fails to rebut the motion by making a
factual showing “that a genuine issue of material fact exists and that a reasonable factfinder
could rule in its favor.” Id. Under Rule 56, the Court must view the evidence presented on the
motion in the light most favorable to the opposing party. Anderson, 477 U.S. at 255.
V.

Discussion
On all counts, Defendants have done exactly what Celotex requires: they have pointed

out the absence of evidence to support Plaintiff’s claims—apart, of course, from her own
suspicions and allegations regarding her termination. None of the factual disputes actually
relates to the reasons for her termination, and Plaintiff has therefore shown no genuine issue of
material fact for trial.
A. Age Discrimination Claims
The Age Discrimination in Employment Act of 1967 (ADEA) forbids employers from
discharging employees because of their age. 29 U.S.C. § 623(a)(1). Only individuals over 40
may claim the protection of the ADEA. Karlo v. Pittsburgh Glass Works, LLC, 849 F.3d 61, 69
(3d Cir. 2017). To establish a claim for disparate treatment under the ADEA, a plaintiff “must
10

prove that age was the ‘but-for’ cause of the employer’s adverse decision.” Gross v. FBL Fin.
Servs., Inc., 557 U.S. 167, 176 (2009). The Third Circuit employs a “slightly modified” version
of the McDonnell Douglas burden-shifting framework in ADEA cases. Keller v. Orix Credit
All., Inc., 130 F.3d 1101, 1108 (3d Cir. 1997). Age discrimination is also prohibited under the
Pennsylvania Human Relations Act, 43 Pa. Cons. Stat. § 955(a). The same legal standard applies
to both PHRA and ADEA claims, and courts sometimes consider them together. Kautz v. MetPro Corp., 412 F.3d 463, 466 n.1 (3d Cir. 2005).
To make out a prima facie case of age discrimination, a plaintiff must show “first, that the
plaintiff is forty years of age or older; second, that the defendant took an adverse employment
action against the plaintiff; third, that the plaintiff was qualified for the position in question; and
fourth, that the plaintiff was ultimately replaced by another employee who was sufficiently
younger to support an inference of discriminatory animus.” Smith v. City of Allentown, 589
F.3d 684, 689 (3d Cir. 2009). The burden then shifts to the defendant to articulate a legitimate
reason for the adverse employment action. Id. If the defendant does so, the burden returns to the
plaintiff to demonstrate pretext. Id. at 690.
Plaintiff, who was over 40 at the time of her dismissal and evidently performed her job to
her previous supervisor’s satisfaction for some years, has easily satisfied the first three elements
of her prima facie case. It is undisputed that she suffered an adverse employment action by
virtue of being fired, and that Ms. O’Neill, Plaintiff’s replacement, is substantially younger than
Plaintiff.
Defendants have established a non-discriminatory reason for Plaintiff’s dismissal. Thus,
the burden shifts to Plaintiff to show that her termination was pretextual. As with her other
claims, Plaintiff’s case founders on the issue of pretext.

11

She has pointed to no evidence

whatsoever showing that her age was the but-for cause of her termination. See Gross, 557 U.S.
at 176. She also ignores Ms. O’Neill’s role prior to her termination. While Plaintiff was taking
intermittent FMLA leave, Ms. O’Neill would fill in, and would therefore have been an eminently
logical choice, whatever her age, to replace Plaintiff after her departure.

Plaintiff’s age

discrimination claim therefore fails.
B. Title VII Claims
1. Disparate treatment
Title VII of the Civil Rights Act of 1964 forbids employers from “discharg[ing] any
individual” on the basis of sex or religion. 42 U.S.C.A. § 2000e-2 (a)(1). Plaintiff alleges that
she was discharged “due to discriminatory feelings against her religion (Judaism) and her sex
(female).” (Compl. ¶ 57). The McDonnell Douglas burden-shifting framework applies. Where,
as here, the discharge is alleged to be pretextual, a plaintiff seeking relief under Title VII must
first make out a prima facie case: “(1) s/he is a member of a protected class; (2) s/he was
qualified for the position s/he sought to attain or retain; (3) s/he suffered an adverse employment
action; and (4) the action occurred under circumstances that could give rise to an inference of
intentional discrimination.” Makky v. Chertoff, 541 F.3d 205, 214 (3d Cir. 2008). The burden
then shifts to the defendant to articulate a legitimate, non-discriminatory reason for the adverse
employment action. Burton v. Teleflex Inc., 707 F.3d 417, 426 (3d Cir. 2013). Finally, the
burden returns to the plaintiff to demonstrate pretext. Id.
Plaintiff is a Jewish woman who evidently performed her job to her previous supervisor’s
satisfaction for some years, and who was fired in 2015. Although she has satisfied the first three
of the four elements, she has not pointed to any evidence creating an inference that the decision
to terminate her was discriminatory, which it was her obligation to produce. Sarullo v. U.S.

12

Postal Serv., 352 F.3d 789, 799 (3d Cir. 2003). Plaintiff testified that Dr. Graves never said
anything to her that was “racist, sexist or bigoted.” (Heit Dep. 79:3-5). She likewise testified
that she did not believe Mr. Farero had ever discriminated against her. (Heit Dep. 113:4-6).
Whether or not Dean Kinane harbored any such biases, no evidence, apart from Plaintiff’s own
speculation, connects him to the decision to terminate her employment; Dean Kinane testified
that he “wasn’t prepared for” Plaintiff’s termination and was told about Plaintiff’s dismissal only
after the fact. (Kinane Dep. 48:7-13).
Even had she been able to make out a prima facie case, she has not produced any
evidence to rebut Defendants’ claim that she was actually fired for poor performance and
submitting a time sheet that showed hours she did not work, or to show that that Penn’s
ostensible reasons for firing her were pretext for religious or sex discrimination. Assertions of
pretext and denials of the veracity of an employer’s non-discriminatory justification for
termination, without countervailing evidence, are not sufficient to defeat summary judgment.
Sarullo v. U.S. Postal Serv., 352 F.3d at 800.
2. Retaliation
The anti-retaliation provision of Title VII also forbids discrimination against an employee
“because he has opposed any practice made an unlawful employment practice by this subchapter,
or because he has made a charge, testified, assisted, or participated in any manner in an
investigation, proceeding, or hearing under this subchapter.” 42 U.S.C. § 2000e-3.
Where a plaintiff seeks to prove retaliation through indirect evidence, the McDonnell
Douglas burden-shifting framework applies.

Carvalho-Grevious v. Delaware State Univ., 851

F.3d 249, 257 (3d Cir. 2017). In order to make out a prima facie case, “a plaintiff must show
that (1) she engaged in a protected activity, (2) she suffered an adverse employment action, and

13

(3) there was a causal connection between the participation in the protected activity and the
adverse action.” Id. The burden then shifts to the defendant to articulate a legitimate reason for
the employment action; once an employer does so, the burden returns to the plaintiff to prove
pretext. Id.
Both formal and informal complaints of discrimination or harassment constitute protected
activity. Speed v. WES Health Sys., 93 F. Supp. 3d 351, 356 (E.D. Pa. 2015). Thus, Plaintiff’s
reports of incidents involving Dean Kinane to her supervisor, Dr. Fiorellini, and to “central HR”
constitute protected activity. 3 However, she lacks any evidence showing any causal connection
between the complaints made in 2012-13 and her dismissal in late 2015. Dean Kinane testified,
and Mr. Farero stated in his declaration, that they were unaware that she had made complaints
regarding discrimination or Dean Kinane’s conduct. (Kinane Dep. 49:19-50:8; Farero Decl. ¶
43). Dr. Graves did not testify to knowledge of complaints made by Plaintiff. All that remains is
her testimony that Mr. Farero told her that her discharge was retaliatory, which, as hearsay, does
not allow her to survive summary judgment on this ground. Smith v. City of Allentown, 589
F.3d 684, 693 (3d Cir. 2009) (“[h]earsay statements that would be inadmissible at trial may not
be considered for purposes of summary judgment”). Her retaliation claim therefore fails.
3. Hostile Work Environment
Title VII also allows plaintiffs to proceed on a theory of hostile work environment.
Harris v. Forklift Sys., Inc., 510 U.S. 17 (1993). To make out a prima facie claim for hostile
work environment on the basis of sex, a plaintiff “must establish 1) the employee suffered
intentional discrimination because of his/her sex, 2) the discrimination was severe or pervasive,

3

Her 2015 reports to Ethics Point regarding suspected improper benefits receipt by other
employees did not constitute complaints of any activity prohibited by Title VII, and are therefore
irrelevant.
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3) the discrimination detrimentally affected the plaintiff, 4) the discrimination would
detrimentally affect a reasonable person in like circumstances, and 5) the existence of respondeat
superior liability.” Mandel v. M & Q Packaging Corp., 706 F.3d 157, 167 (3d Cir.
2013). Hostile work environment claims based on religion are subject to a comparable
test. Abramson v. William Paterson Coll. of New Jersey, 260 F.3d 265, 276 (3d Cir. 2001). “To
determine whether an environment is hostile, a court must consider the totality of the
circumstances, including ‘the frequency of the discriminatory conduct; its severity; whether it is
physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably
interferes with an employee’s work performance.’” Mandel, 706 F.3d at 168 (quoting Harris,
510 U.S. at 23). “‘[S]imple teasing,’ offhand comments, and isolated incidents (unless extremely
serious) will not amount to” a hostile work environment. Faragher v. City of Boca Raton, 524
U.S. 775, 788 (1998) (quoting Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 82
(1998)).
a. Intentional Discrimination
Plaintiff has not shown that she suffered intentional discrimination because of her sex or
religion. At best, she has shown that Dean Kinane made a number of insensitive comments,
most of which were alleged to have occurred outside her presence and all of which were directed
at others, and that he behaved inappropriately toward other women two or three years before she
was fired. In the Third Circuit, a plaintiff cannot “meet the first element of the hostile work
environment claim under Title VII…solely by pointing to comments that were directed at other
individuals.” Caver v. City of Trenton, 420 F.3d 243, 263 (3d Cir. 2005). However, such
comments may elucidate whether facially neutral conduct was motivated by discrimination. Id.
at 264. Plaintiff’s deposition testimony is telling:

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Q. While you were employed at Penn Dental, did Dean Kinane ever say anything
to you that was discriminatory, sexist, racist or bigoted?
A. He said -- he made reference to a colleague about her -- her weight and that she
was waddling like a duck. Beyond that I don’t recall specifics.
Q. Okay. So, the only specific instance you recall is the reference to a colleague
waddling like a duck?
A. Uh-huh….
Q. Tell me about this. When did this occur?
A. Oh, I -- I don’t -- I honestly don’t remember. I want to -- maybe 2013 or 2012.
(Heit Dep. 83:10-84:2). Later in her deposition, she testified that she observed Dean Kinane
dancing closely with a colleague at a wedding, which she did not perceive as non-consensual:
Q. And when you say they were dancing inappropriately, did it appear that it was
Dean Kinane was forcing himself on her or -A. No.· They were groping each other.
Q. So, it was consensual conduct in your mind?
A. I didn't consider it anything. I considered it inappropriate….
Q. By inappropriate do you mean morally inappropriate?
A. I mean it was -- it was -- it was inappropriate for two people in those positions,
particularly the dean, to be behaving that way.
(Heit Dep. 88:12-89:7).
The incidents identified by Plaintiff, most of which she heard about from others and none
of which was directed at Plaintiff herself, do not amount to discrimination on the basis of sex or
religion sufficient to support a hostile work environment claim, which thus fails the very first
prong of the relevant legal test.
b. Severe and pervasive
Defendants also argue that the supposed discrimination, which constituted at most some
seven or eight incidents over the period 2010-15—and most of which she did not witness—was
not severe and pervasive. The Supreme Court has made clear that “conduct must be extreme to
amount to a change in the terms and conditions of employment”; sporadic incidents directed at
others, most of which Plaintiff did not herself witness, simply will not suffice. Faragher v. City
of Boca Raton, 524 U.S. at 788.
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E. ADA Claims
The Americans with Disabilities Act (ADA) makes it unlawful for employers to
discriminate against employees “against a qualified individual with a disability because of the
disability of such individual.” 42 U.S.C. § 12112 (a). A disability is defined as “(A) a physical
or mental impairment that substantially limits one or more major life activities of such
individual; (B) a record of such an impairment; or (C) being regarded as having such an
impairment.” 42 U.S.C. § 12102(1).

Major life activities include working.

42 U.S.C. §

12102(2)(A). In 2008, Congress passed the ADA Amendments Act of 2008, Pub. L. No. 110–
325, 122 Stat. 3553 (2008), “with the stated goal of ensuring that ‘[t]he definition of disability ...
be construed in favor of broad coverage.’” Adair v. City of Muskogee, 823 F.3d 1297, 1305
(10th Cir. 2016) (quoting Pub. L. No. 110–325, § 2(a)(1)).
At various points in this action, Plaintiff has alleged different purported disabilities. In
her Complaint, she alleged “disabling back pain for which she had previously taken an approved
leave of absence.” (Compl. ¶ 65). At her deposition, she testified that she had sought FMLA
leave for anxiety and depression. (Heit Dep. 82:13-14). Plaintiff seeks to employ the prior
FMLA leave as the basis for a disability discrimination claim under the ADA, but does not
pursue an independent FMLA retaliation claim.
Where a plaintiff does not allege direct evidence of disability discrimination, a burden
shifting regime applies. Walton v. Mental Health Ass’n. of Se. Pa., 168 F.3d 661, 668 (3d Cir.
1999). A prima facie case requires a plaintiff to show “‘(1) he is a disabled person within the
meaning of the ADA; (2) he is otherwise qualified to perform the essential functions of the job,
with or without reasonable accommodations by the employer; and (3) he has suffered an
otherwise adverse employment decision as a result of discrimination.’” Alston v. Park Pleasant,

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Inc., 679 F. App’x 169, 171 (3d Cir. 2017) (quoting Gaul v. Lucent Techs., Inc., 134 F.3d 576,
580 (3d Cir. 1998)). As with so many other burden-shifting regimes, if a plaintiff makes a prima
facie showing, the burden shifts to the defendant to articulate a legitimate, non-discriminatory
reason for the adverse employment action, and subsequently returns to the plaintiff to prove
pretext. Walton, 168 F.3d at 668.
The parties first debate whether Plaintiff is a disabled person for ADA purposes.
Keeping in mind the intention of the ADA Amendments Act to provide expansive coverage, the
Court finds that Plaintiff’s testimony about taking anti-anxiety medication and seeing a counselor
for anxiety (and discussing its relation to her work) sufficiently show that her anxiety
substantially impaired her ability to work, making her a disabled individual under the ADA.
However, Plaintiff cannot make out a prima facie case because she has failed to show that
her termination occurred as a result of discrimination. Plaintiff admits that she never informed
Dr. Graves what her medical conditions were, and that he, like Mr. Farero, never learned why
she requested FMLA leave (SOF ¶¶ 47-49). Dr. Graves signed FMLA paperwork in which
Plaintiff checked off a box for a “Serious health condition,” but she has not provided any record
evidence suggesting disability discrimination, or creating any causal connection whatsoever,
beyond her own suppositions, between either her ailments (or her decision to take FMLA leave)
and her termination. Plaintiff’s ADA claim therefore fails.
E. Timeliness
Defendants also assert that Plaintiff’s federal claims were untimely. (Mem. in Support of
Def.’s Mot for Summ. J. at 54-56, ECF 85-2). Because she also asserted state-law claims to
which this argument would not pertain and Defendant is entitled to summary judgment on all
counts, the Court does not reach this issue.

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F. Plaintiff’s 56(d)(2) Motion
Rule 56(d)(2) allows the Court to provide additional time for discovery if a party
opposing summary judgment “shows by affidavit or declaration that, for specified reasons, it
cannot present facts essential to justify its opposition.” Fed. R. Civ. P. 56(d). Plaintiff’s 56(d)(2)
motion (ECF 99) consists only of recycled arguments for being allowed to take the deposition of
Vincent Price, the former university provost, which have previously been rejected. (Order
denying discovery, ECF 67). Plaintiff asserted that she has been denied discovery that would
allow her to prove the “nexus” of her claims, and speculated in the affidavit accompanying the
56(d)(2), as she has before, that “there is no question that Price discussed Plaintiff with Kinane,
directly or indirectly, and Kinane knew that Heit was a ‘problem’ that he needed to remove and
retaliate against.” (Heit Aff., Ex. A. to Pl.’s Emergency Mot. for Discovery, ECF 99). Not only
has Plaintiff presented nothing new in this motion, but she has ignored both the deposition
testimony of Dean Kinane stating that he was unaware that Plaintiff had made complaints about
his behavior, and the declaration submitted by former provost Price denying all knowledge of
Plaintiff or the circumstances surrounding her termination. (Kinane Dep. 49:19-50:8; Price
Decl., ECF 65-1). Plaintiff’s 56(d)(2) motion is therefore denied.
VI.

Conclusion
Defendant’s motion for summary judgement is hereby GRANTED. Plaintiff’s motion

for relief pursuant to Rule 56(d)(2) is DENIED. An appropriate order follows.

O:\C IV IL 16\16-2929 Heit v Penn Dental\16cv2929 Heit MSJ Mem o.doc x

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