MALARKEY v. THE READING HOSPITAL AND MEDICAL CENTER

Filing 32

MEMORANDUM. ( SIGNED BY HONORABLE LAWRENCE F. STENGEL ON 11/18/10. ) 11/19/10 ENTERED AND COPIES E-MAILED.(gn, )

MALARKEY v. THE READING HOSPITAL AND MEDICAL CENTER

Doc. 32

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA MARILYN MALARKEY, Plaintiff v. THE READING HOSPITAL AND MEDICAL CENTER, Defendant : : : : : : : : CIVIL ACTION

NO. 09-3278

MEMORANDUM STENGEL, J. November 18 , 2010

P la in tif f Marilyn Malarkey has filed suit against The Reading Hospital and M e d ic a l Center alleging violations of the Age Discrimination in Employment Act and the P e n n s ylv a n ia Human Relations Act. She was employed by a nursing agency, G.W.R. P e rs o n n e l Resources, and in that capacity, was assigned for approximately ten years to the E m erg e n c y Department at the Reading Hospital and Medical Center. When TRHMC r e q u e s te d that she no longer be assigned to work in the Emergency Department, Ms. M a la rk e y refused to accept agency work in other departments of TRHMC or in other h o s p ita ls . For the reasons set forth below, I will grant the defendant's motion for s u m m a ry judgment. I. BACKGROUND M a rilyn Malarkey is a registered nurse who began working for G.W.R. Personnel R e so u rc e s in 1998. Def.'s Statement of Undisputed Material Facts ("Def.'s SUF") ¶ 1; P l.'s Statement of Undisputed Material Facts ("Pl.'s SUF") ¶ 10. The year she began w o rk in g for G.W.R., she was "contracted out" to the Emergency Department of TRHMC.

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D e f .'s SUF ¶ 7; Pl.'s SUF ¶ 11. As a contract, or agency nurse, Ms. Malarkey determined h o w many and what shifts she wanted to work. Def.'s SUF ¶ 8. Ms. Malarkey worked in th e Emergency Department at TRHMC, as an agency nurse employed with G.W.R., from 1 9 9 8 until October of 2007. Pl.'s SUF ¶ 12. It was in 2007 that Darlene Mercieca, the D ire c to r of the Emergency Department at TRHMC, decided that certain G.W.R. agency n u rse s who had been regularly assigned to the Emergency Department had the potential to lu re staff nurses employed directly by TRHMC away from the hospital and to G.W.R. Def.'s SUF ¶¶ 17­18; Affidavit of Michelle Trupp, ¶ 2. This concern was largely based o n the fact that staff nurses employed by TRHMC earned approximately $33.53 per hour, w h ile G.W.R. agency nurses earned approximately $89.00 per hour. Def.'s SUF ¶ 18; T ru p p Affidavit, ¶ 3. Ms. Mercieca decided that she would no longer allow two G.W.R. n u rs e s -- Ms. Malarkey and Donna Wertz -- to work as agency nurses in the Emergency D e p a rtm e n t. Trupp Affidavit, ¶ 4. Ms. Mercieca chose these two nurses because of all th e G.W.R. nurses that worked in the Emergency Department, they had been there the lo n g e st. Id. At the time TRHMC made the decision that Ms. Malarkey and Ms. Wertz w o u ld no longer be accepted for shifts there, Ms. Malarkey was sixty-seven years old and M s . Wertz was forty-nine. Pl.'s SUF ¶¶ 28, 29. T h ro u g h o u t her tenure at TRHMC, Ms. Malarkey received positive evaluations f ro m G.W.R. and praise from her co-workers and patients. Pl.'s SUF ¶ 13. Ms. Mercieca s p o k e with Ms. Malarkey on August 15, 2007, to explain why the Emergency Department

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w o u ld no longer accept her as an agency nurse. Pl.'s SUF ¶ 14. Ms. Malarkey described th e conversation she had with Ms. Mercieca when she arrived in Ms. Mercieca's office: A n d she said, you've been an agency worker too long, would yo u like to come on staff full time. And I said no. She said why not. I said I haven't worked full time in years and that is by choice, and I w o u ld certainly not want to start working full time now. ... B u t she said - - she started talking to me about the cost to the h o s p ita l and injected that GWR was making a lot of money besides my w a g e s; and because I was [a] temporary nurse with longevity, I would b e the one to go first. And I asked how patient care could be affected negatively with m e assigned versus anyone else working less - - less years and not p o s itiv e ly since I was familiar to the facility, the staff, and never had a p r o b l e m there. She said none of that fitted into the equation. It was a m a tte r of getting rid of agency. She said I have too many friends there. I was never offered a contract, full time or part time or any - - on a n yt h i n g . M a la rk e y Dep. 127:25­128:21. Ms. Malarkey presented an email she claims was a u th o re d by Ms. Mercieca, which states that "[Ms. Malarkey and Ms. Wertz] have been h e re 10 and 9 years respectively. They have both been offered full time staff positions h e re and have declined at this point. . . . We value our agency staff to help us but upper le v e l administration has looked down on agency staff who are here too long. The cost of thes e nurses to the hospital is high and we need to balance our needs with cost." Def.'s E x . H. Ms. Malarkey did not accept the full time position she was offered at the E m e r g e n c y Department, both because she did not want to work full time and because a c c e p tin g it would require a reduction in pay. Pl.'s SUF ¶ 16. Neither she nor Ms. Wertz

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w e re permitted to be assigned to the Emergency Department at TRHMC after October of 2007. However, Ms. Malarkey was offered other positions by the President of G.W.R., G a ry Rogers, including a position at York Memorial Hospital and a full-time position in T R H M C 's clinic. Malarkey Dep., 135:12­22; 140:13­15. She explained that she re je c te d the position in the clinic because it was full time, because she did not have office e x p e rie n c e, and because she "had already applied to the Wilson School District" and "was ju s t waiting for all my clearances." Id. at 140:20­25. Records kept in the ordinary course o f business by G.W.R. include a log detailing communications with Ms. Malarkey about h e r G.W.R. staffing assignments. The log confirms the substance of the conversation b e tw e e n Ms. Malarkey and Ms. Mercieca, as reported by Ms. Malarkey. See Def.'s Ex. A a t G.W.R. Log p. 4, 8/15/07 entry ("[Ms. Malarkey] said that Darlene told her that they are getting rid of agency and that Marilyn would be the first to go since she has been there th e longest."). The log also provides myriad examples of the efforts G.W.R. made to find M s . Malarkey replacement work, either at TRHMC or at another hospital. For example, th e log indicates that, after the Emergency Department stopped accepting Ms. Malarkey a s an agency nurse, Mr. Rogers offered Ms. Malarkey work in the "Med Surg" d e p a rtm e n t at TRHMC at the same rate of pay she had received in the Emergency D e p a rtm e n t. Id. at Log p. 3, 10/22/07 entry. Ms. Malarkey "said that she did not want to g o back to TRHMC med/surg." Id. Another G.W.R. employee asked Ms. Malarkey if

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s h e wanted full time work at TRHMC dispensary. Id. Log p. 3, 10/23/07 entry. When s h e refused because it was full time, the employee "asked if she would be interested in 2 o r 3 days per [week]" and Ms. Malarkey responded that "it's something to put in my cap b u t don't stop looking for someone else." Id. Next, G.W.R. offered Ms. Malarkey work in the Rehabilitation Department at TRHMC, which Ms. Malarkey rejected because it w a s "a lot of lifting, solo lifting, so no, [she was] not interested." Id. Log p. 3, 10/25/07 e n try. Mr. Rogers also offered to pay for overnight lodging if Ms. Malarkey wanted to w o rk at York Hospital. Id. at Log p. 3, 11/1/07 entry. Ms. Malarkey "said she a p p re c ia te d it but that she had applied for a job as school nurse with the Wilson School D is tric t." Id. The same day, Mr. Rogers wrote the following: [ M s. Malarkey] then asked if we were going to keep her busy. I told h e r that depended on how flexible she was going to be in accepting w o rk . I reminded Marilyn that we still have a lot of work for her. I to ld Marilyn that we had work at [St. Joseph's Medical Center] Labor a n d Delivery. She said she would not accept work there, and she also s a id she knows we have work in TRHMC Rehab, I confirmed that to be tru e , she said that she does not want to accept work there, she also said th a t she does not want to be assigned to TRHMC M/S (med/surg), she s a id she did not want to accept the THRMC clinic assignment, and she s a id she also knows we have work at York but does not want to accept th at work either. Id . at Log p. 2, 11/01/07 entry. M s . Malarkey's statements during her deposition do not entirely confirm the s u b s ta n c e of Mr. Rogers' conversations with her, as recorded in the log. For example, M s. Malarkey stated that she did not recall being offered work in TRHMC's Med/Surg

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d ep artm en t or that G.W.R. offered her two to three days a week of work in TRHMC's d is p e n sa ry. Malarkey Dep. 151:22­152:5; 160:10­20. However, she did not dispute the tru th of the log, and confirmed that she would have refused the assignments offered: Q: H ad you concluded at this point in time, as of October 4 th , 2 0 0 7 , that you had no intention of returning to the Reading H o s p ita l & Medical Center because they were telling you that yo u couldn't work in the [Emergency Department]? M y feeling would have been that. I hadn't made up my mind o r verbalized that to anybody, but it was ­ I was just h e a rtb r o k e n . ... B u t at this point in time you didn't want to go anywhere else b u t the [Emergency Department], the assignment you had b e f o re , right? A s far as the Reading Hospital, yes.

A.

Q:

A:

M a lar k e y Dep.152:9­16; 153:14­17. At one point during her deposition, in response to q u e stio n s concerning her rejection of other positions at TRHMC, Ms. Malarkey stated s im p ly and revealingly: "I would have preferred to have stayed in the [Emergency D e p a rtm e n t] like everybody else." Id. at 164:10­11. II. S T A N D A R D OF REVIEW S u m m a ry judgment is appropriate "if the pleadings, depositions, answers to in ter ro g a to rie s, and admissions on file, together with affidavits, if any, show that there is n o genuine issue as to any material fact and that the moving party is entitled to judgment a s a matter of law." FED. R. CIV. P. 56(c). An issue is "genuine" when a reasonable jury c o u ld return a verdict for the non-moving party based on the evidence in the record. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A factual dispute is -6-

" m a te ria l" when it could affect the outcome of the case under the governing law. Id. A party seeking summary judgment initially bears responsibility for informing the c o u rt of the basis for its motion and identifying those portions of the record that it b e lie v e s demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. C a tre tt, 477 U.S. 317, 322 (1986). Where the non-moving party bears the burden of proof o n a particular issue at trial, the moving party's burden can be met simply by d e m o n s tra tin g "to the district court that there is an absence of evidence to support the n o n -m o v in g party's case." Celotex, 477 U.S. at 325. After the moving party has met its in itia l burden, "the adverse party's response, by affidavits or otherwise as provided in this ru le , must set forth specific facts showing that there is a genuine issue for trial." FED. R. C IV. P. 56(e). Summary judgment is therefore appropriate when the non-moving party f a ils to rebut by making a factual showing "based on the affidavits or by depositions and a d m iss io n s on file" that is "sufficient to establish the existence of an element essential to th a t party's case, and on which that party will bear the burden of proof at trial." Celotex, 4 7 7 U.S. at 322; Harter v. GAF Corp., 967 F.2d 846, 852 (3d Cir.1992). I I I . DISCUSSION In Count I of her complaint, Ms. Malarkey claims that TRHMC unlawfully "used P la in tif f 's age as a motivating factor in terminating Plaintiff" and "unlawfully and im p e rm is s ib ly used Plaintiff's age as a basis for making an adverse decision and/or taking a d v e rs e action against Plaintiff in terminating her position of employment." Compl. ¶¶

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20­21. T h e central provision of the ADEA provides that it shall be unlawful for an e m p l o ye r 1 : (1 ) to fail or refuse to hire or to discharge any individual or o th e rw ise discriminate against any individual with respect to his c o m p e n sa tio n , terms, conditions, or privileges of employment, b e c au s e of such individual's age; to limit, segregate, or classify his employees in any way which w o u ld deprive or tend to deprive any individual of employment o p p o rtu n itie s or otherwise adversely affect his status as an e m p l o ye e , because of such individual's age; or to reduce the wage rate of any employee in order to comply with th is Act.

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29 U.S.C. § 623(a). To establish a disparate treatment claim under the ADEA, a plaintiff must prove th a t age was the "but-for" cause of the defendant's adverse decision. Gross v. FBL F in a n c ia l Services, Inc., - - U.S. - -, 129 S.Ct. 2343, 2350 (2009) (a plaintiff must prove

There is an issue unmentioned in the parties' briefs I will briefly address: whether Ms. Malarkey has standing to sue TRHMC at all, since she was not an employee there, but was instead an employee of G.W.R. This appears clear from the evidence of record, which establishes that Ms. Malarkey received her wages from G.W.R. and received all her work assignments through G.W.R. In order to assert claims under the ADEA, Title VII, or the ADA, a plaintiff must bring those claims against her employer. To satisfy this requirement, the defendant need not be the plaintiff's actual or direct employer: "[W]here [a] defendant, though not the plaintiff's employer, nevertheless has such a degree and range of control over the plaintiff that it is the plaintiff's de facto or indirect employer . . . the relationship of the parties should be regarded as an employment relationship." Conroy v. City of Philadelphia, 421 F. Supp. 2d 879, 888-89 (E.D.Pa. 2006) (citing Tyrrell v. City of Scranton, 134 F.Supp.2d 373, 380 (M.D.Pa.2001)). I will assume that TRHMC did not raise this issue because it recognizes that its degree of control over Ms. Malarkey's assignments within the hospital was substantial. -8-

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b y a preponderance of the evidence, which may be direct or circumstantial, that age was th e "but-for" cause of the challenged employer decision). The burden of persuasion does n o t shift to the employer to show that it would have taken the action regardless of age, e v e n when a plaintiff has produced some evidence that age was one motivating factor in th a t decision. Id. at 2352. Shifting the burden of persuasion to the defendant is improper b e c au s e the plain language of the ADEA requires the plaintiff to prove that the defendant to o k the adverse employment action "because of [the plaintiff's] age." Id. at 2350-51 (q u o tin g 29 U.S.C. § 623(a)(1)). The Supreme Court construed this language in the s ta tu te as requiring that the plaintiff prove but-for causation from the outset of an ADEA c a s e . Id. The Third Circuit has since recognized that Gross expressed significant doubt a b o u t any burden-shifting under the ADEA, but it concluded that the "but-for causation s ta n d a rd " required by Gross did not conflict with the continued application of the M c D o n n e l l Douglas2 paradigm in age discrimination cases: G ro s s stands for the proposition that it is improper to shift the burden o f persuasion to the defendant in an age discrimination case. M c D o n n e ll Douglas, however, imposes no shift in that particular b u rd e n . McDonnell Douglas provides that, once the employee e sta b lis h e s a prima facie case, the burden of production (i.e., of going f o rw a rd ) shifts to the employer to articulate a legitimate, n o n d is c rim in a to ry reason for the employer's adverse employment d e c is io n . If the employer makes that showing, the burden of production sh ifts once again to the employee to establish that the employer's p ro f f e re d justification for the adverse action is pretextual. Throughout
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McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817 (1973). -9-

th is burden-shifting exercise, the burden of persuasion, "including the b u rd e n of proving `but for' causation or causation in fact, remains on th e employee." Hence, Gross, which prohibits shifting the burden of p e rsu a sio n to an ADEA defendant, does not forbid our adherence to p r e c e d e n t applying McDonnell Douglas to age discrimination claims. S m ith v. City of Allentown, et al., 589 F.3d 684, 691 (3d Cir. 2009) (internal citations o m itte d ). A. T h e Plaintiff Has Not Established a Prima Facie Case of Age D i s c r im i n a t i o n

T o establish a prima facie case of age discrimination under the ADEA, a plaintiff m u s t demonstrate that she (1) was over the age of 40; (2) was qualified for the position; (3 ) suffered an adverse employment decision; and (4) ultimately was replaced by a person s u f f ic ie n tly younger to permit an inference of age discrimination. Barbee v. SEPTA, et a l., 323 Fed. Appx. 159, 161 (2009) (quoting Monaco v. Am. Gen. Assur. Co., 359 F.3d 2 9 6 , 300-301 (3d Cir. 2004)); see also Fasold v. Justice, 409 F.3d 178, 185-186 (3d Cir. 2 0 0 5 ); Potence v. Hazleton Area Sch. Dist., 357 F.3d 366, 370 (3d Cir. 2004). It is important to note, however, that there is no hard-and-fast rule for what a p la in tif f must present in order to make a prima facie showing. Rather, "the precise e le m e n t s of a plaintiff's prima facie case may vary with the particular circumstances." Waldron v. SL Indus., Inc., 56 F.3d 491, 494 n.3 (3d Cir. 1995); see also Jones v. Sch. D is t. of Phila., 198 F.3d 403, 411 (3d Cir. 1999) ("[A] prima facie case cannot be estab lish ed on a one-size-fits-all basis."). It is clear that Ms. Malarkey has established the first two elements of the prima -10-

fa c ie case. She was sixty-seven years old during the relevant period, and there is no e v id e n c e in the record that she was unqualified to work as a registered nurse or that her p e rf o rm a n c e was in any way problematic. It is on the third element of the prima facie case that TRHMC argues Ms. M a la r k e y's claim must fail. To have satisfied that element, the alleged adverse e m p l o ym e n t action must be sufficiently severe such that the compensation, terms, c o n d itio n s , or privileges of Ms. Malarkey's employment were altered, or she was d e p r iv e d of employment opportunities or her status as an employee was otherwise ad v erse ly affected. Robinson v. City of Pittsburgh, 120 F.3d 1286, 1296-1297 (3d Cir. 1 9 9 7 ), abrogated on other grounds by Burlington N. & Santa Fe Ry. Co. v. White, 548 U .S . 53, 126 S.Ct. 2405 (2006); see also 29 U.S.C. § 623(a); Cardenas v. Massey, 269 F .3 d 251, 263 (3d Cir. 2001)) (an "adverse employment action" is "an action by an e m p l o ye r that is serious and tangible enough to alter an employee's compensation, terms, co n d ition s, or privileges of employment"). A lth o u g h the type of adverse employment action that satisfies this standard is often o n e that results in economic injury, it can also include, among others, "reassignment with s ig n if ic a n tly different responsibilities," "failure to promote," "a less distinguished title," " a material loss of benefits," and "significantly diminished material responsibilities." See B u rlin g to n Indus., Inc. v. Ellerth, 524 U.S. 742, 761, 118 S.Ct. 2257 (1998) (an e m p lo ym e n t action is not materially adverse if it merely bruises the ego, results in a

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d e m o tio n without change of pay, benefits, duties, or prestige, or leads to a merely in c o n v e n ie n t reassignment). When a plaintiff alleges that a lateral transfer constituted a m aterially adverse employment action, that plaintiff does not show actionable injury " u n le s s there are some other materially adverse consequences affecting the terms, c o n d itio n s, or privileges of [] employment . . . such that a reasonable trier of fact could c o n c lu d e that the plaintiff has suffered objectively tangible harm. Mere idiosyncracies of p e rs o n a l preference are not sufficient to state an injury." Brown v. Brody, 199 F.3d 446, 4 5 7 (D.C. Cir. 1999) (cited in Fallon v. Meissner, 66 Fed. Appx. 348, 351 (3d Cir. 2003)). In other words, for a lateral transfer to amount to an adverse employment action, the p la in tif f 's refusal to accept the transfer "must not arise from the employee's individual p re f ere n c es ." Fallon, 66 Fed. Appx. at 352. The Third Circuit has recognized that an a d v e rs e employment action has been sufficiently alleged where an employee was tra n sf e rre d to new position that paid the same as a previous position but was a "dead-end jo b ," see Torre v. Casio, Inc., 42 F.3d 825, 831 n. 7 (3d Cir. 1994), and where a plaintiff alleged that a new position was less desirable and because, although it was " tem p o ra ry," it lasted over a year, see Hampton v. Borough of Tinton Falls Police Dep't, 9 8 F.3d 107, 115-16 (3d Cir. 1996). However, where a plaintiff simply alleges a transfer to a position offering the same pay and benefits but which she does not prefer, she has not m e t her burden of showing an adverse employment action. See, e.g., Washco v. Fed. E x p re ss Corp., 402 F. Supp. 2d 547, 558-59 (E.D.Pa. 2005) (ruling against plaintiff who

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f a ile d to allege that she was docked in rank, pay, or benefits, or that she perceived the n e w position to be a demotion); Mallet v. Potter, No. 05-5586, 2008 WL 724348 at *4 (D .N .J . Mar. 17, 2008) (finding no adverse employment action because "[p]laintiff's s u b je c tiv e preferences cannot be used to show that he suffered an adverse employment a c tio n " and because plaintiff's arguments that his old position "was located closer to his h o m e and entailed less physical demands are not persuasive."). TRHMC argues that Ms. Malarkey has failed to establish that she suffered an ad v erse employment action and that she has therefore failed to meet her prima facie b u rd e n . I agree. In an attempt to draw this court's attention away from the basic facts p re se n te d here, Ms. Malarkey stresses that many of the other positions offered to her at T R H M C were not part-time and were in units in which Ms. Malarkey was unfamiliar with th e work. Both arguments are belied by the evidence in the record. The G.W.R. log s h o w s that Ms. Malarkey was offered and/or discussed potential positions in the M e d /S u r g , Rehabilitation, Clinical, and Dispensary units at TRHMC. When rejecting th o s e positions, she never mentioned her unfamiliarity with the work; rather, she gave no re a so n at all or suggested that the physical requirements were too demanding. In her d e p o sitio n , Ms. Malarkey again did not bring up a lack of training as a reason for re jec tin g other jobs with TRHMC. Instead, she admitted that she simply did not want to w o r k in any other department at TRHMC. Finally, Ms. Malarkey argues, in her response to TRHMC's motion, that "as the undisputed record reflects, Plaintiff has stated that

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w o rk in g in emergency care is an extremely prestigious position for a Registered Nurse." Pl.'s Resp. 9 (citing Malarkey Dep., 17). However, nowhere on the deposition page she c ites does Ms. Malarkey mention that an emergency care position is prestigious, or that it is more prestigious than other positions she was offered at TRHMC. In a further effort to salvage her case, Ms. Malarkey offered an affidavit with her su r-re p ly to TRHMC's motion. In this affidavit, she explains that she could not accept a p o sition in TRHMC's Rehabilitation Unit because "it was very different from [her] p o s itio n in the [Emergency Department] and was not an area of nursing for which [she] h a d specific training." Malarkey Affidavit. She also gives reasons relating to travel and e x p e rie n c e for her rejection of positions outside TRHMC. Id. Finally, she states that she d o e s not recall being offered any other positions by either G.W.R. or TRHMC following h e r termination from the Emergency Department. Id. M s . Malarkey's attempt to explain away each instance where she rejected a p o sitio n either with TRHMC or at another hospital distorts the real nature of the facts in th is case. Even viewing all the evidence in the light most favorable to Ms. Malarkey, it is im p o s s ib le to avoid the conclusion that Ms. Malarkey's refusal to accept other positions w ith TRHMC was purely a matter of her personal preference. This is not a case where th e plaintiff was unilaterally transferred to another, less desirable or dead-end position. Rather, Ms. Malarkey was terminated from one position at TRHMC and was then offered m yria d other positions, both full and part time, in other units of the hospital, including the

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M e d /S u rg unit, the Rehabilitation Unit, the Clinic, and the Dispensary. In a truly ironic tw is t, Ms. Malarkey was even offered, by TRHMC, a full-time staff position in the E m e rg e n c y Department. In other words, Ms. Malarkey is now suing the entity that was n o t her employer for offering her a job. I recognize that a position as a staff nurse offered a lower rate of pay than her position as an agency nurse, and that Ms. Malarkey was not in t e re s te d in working full time, but to ignore this fact would be perverse. Essentially, Ms. M a la rk e y asks this court to find that she suffered an adverse employment action when she re f u s e d every job offered to her that was not on the exact terms she desired. TRHMC e ss e n tia lly bent over backwards to offer, through G.W.R., other positions for her. When a sk e d whether she would have refused any job at TRHMC that was not in the Emergency D e p a rtm e n t, Ms. Malarkey responded "[m]y feeling would have been that. I hadn't made u p my mind or verbalized that to anybody, but it was ­ I was just heartbroken." When a sk e d to confirm that she "didn't want to go anywhere else but the Emergency D e p a rtm e n t," Ms. Malarkey responded, "[a]s far as [TRHMC], yes." T h e law is clear that a plaintiff has not suffered an adverse employment action s o le ly because her personal preferences for a particular job go unfulfilled. Ms. Malarkey d id not testify, in any portion of her deposition to which she points us, that any of the o th e r jobs offered to her at TRHMC were less prestigious or that she perceived a move to a n o th e r unit as a demotion. Her concerns about the different physical requirements of w o rk in the Rehabilitation Unit are not sufficient to support her assertion that she suffered

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an adverse employment action. To find that Ms. Malarkey has met her prima facie b u r d e n where the evidence, viewed practically and in the light most favorable to her, so c lea rly indicates that she wanted to work in the Emergency Department and simply re f u s e d to accept work in multiple other units, would defy the purpose of the ADEA, w h ic h is to "promote employment of older persons based on their ability rather than age [ a n d ] to prohibit arbitrary age discrimination in employment." 29 U.S.C. § 621. B e c a u s e I believe Ms. Malarkey's prima facie case fails on this ground, I will not ad d ress in detail whether she has met the fourth element of her prima facie burden and h a s proved that she was replaced by an individual under the age of 40. I will simply note that Ms. Malarkey would likely fail to meet her prima facie burden on this ground as well. She has presented no evidence contradicting TRHMC's contention that she and Ms. W e rtz , the first agency nurses made to leave the Emergency Department, were in fact the n u rs e s who had been there the longest by a number of years. In other words, no agency n u r se exists who had been staffed in the Emergency Department longer than either Ms. M a la rk e y or Ms. Wertz and was allowed to stay. Therefore, no individual younger than M s . Malarkey with the same amount of years in the Emergency Department as an agency n u rs e , was offered her job. B. T h e Plaintiff Has Failed to Show That Her Age Was the But-For R e a so n For Her Termination

In the alternative, I will briefly address whether, had Ms. Malarkey stated a prima f a cie case of employment discrimination, she could show that the reason given by -16-

T R H M C for her termination from assignments in the Emergency Department was pretext f o r age discrimination. TRHMC claims it refused to allow Ms. Malarkey to continue w o rk in g in the Emergency Department because her years-long presence there as an ag en cy nurse making nearly three times more than staff nurses might serve to lure E m e rg e n c y Department staff nurses to G.W.R. This reason is legitimate and nond isc rim in a to ry. It reflects TRHMC's concern that nurses it paid less, as members of its p e rm a n e n t staff, would quit in an effort to do the same work, but while getting paid the m u c h higher agency rate. The reason Ms. Malarkey and Ms. Wertz were the first agency n u rs e s excluded was their status as the longest-serving Emergency Department agency n u r se s . M s . Malarkey claims that two separate pieces of evidence serve to establish that th e re is a question of fact whether age was the but-for reason for her termination, or that th i s nondiscriminatory reason offered by TRHMC was pretextual. First, she claims Ms. M e rc e ic a 's statement that she was being refused assignments in the Emergency D ep artm en t due to her longevity and popularity with the staff indicated discriminatory in te n t. She also points to the affidavit from Gary Rogers in which he states, "I believe th a t Marilyn Malarkey was targeted for termination of her contractual placement as a re su lt of her age, longevity, and the amount of respect she received from other staff and c o -e m p lo ye e s ." Rogers Affidavit, Pl.'s Ex. B. He also states that, "it is my u n d e rs ta n d in g that the overall cost of a G.W.R. employee is comparable to the cost of a

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d ire c t employee . . . even though the rate of pay to the individual nurse is less." Id. These arguments are without merit. Ms. Merceica's statements to Ms. Malarkey, a s explained by Ms. Malarkey in her deposition, make no reference to age, indicating in s te a d that her years working in the Emergency Department, and not her age, were the r e a so n for her termination. The Supreme Court has recognized that lower courts must o f te n determine whether an employer has violated the ADEA when it acts on the basis of a factor "such as an employee's pension status or seniority, that is empirically correlated w ith age." Hazen Paper Co. v. Biggins, 507 U.S. 604, 608, 113 S.Ct. 1701 (1993). However, it has recognized that reliance on a trait correlated with age does not give rise to liability under the ADEA; rather, an employer violates the ADEA where "the protected tra it actually motivated the employer's decision." Id. at 609. It explained further that the v ery essence of the discrimination Congress intended to prohibit is discrimination where " a n older employee [is] fired because the employer believes that productivity and c o m p e te n c e decline with old age." Id. M s . Malarkey has presented no evidence indicating that age was the motivating f a cto r for her termination, or that the reason TRHMC has provided is pretextual. Even a c ce p tin g as true her description of her conversation with Ms. Merceica, it is clear that s h e was prohibited from taking on further shifts in the Emergency Department not b e c a u s e of her age, but because she had been an agency nurse there for the longest time. More importantly, Ms. Malarkey does not dispute that TRHMC offered her a full time

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p o sitio n as a staff nurse. This fact in itself makes clear that TRHMC did not terminate M s . Malarkey's contract position because of any belief that her productivity or c o m p e te n c e had declined; rather, it offered her a permanent position there as an a lte rn a tiv e to employing her as a contract nurse, which was more expensive. An em p loyer acting on the basis of ageist stereotypes by assuming an older employee suffers f ro m declining competence would simply not offer a permanent position to that e m p l o ye e . Neither does Mr. Rogers' statement support Ms. Malarkey's claim. That he b eliev es TRHMC discriminated against Ms. Malarkey is simply irrelevant. "Conclusory a ss e rtio n s of discriminatory intent contained in an affidavit submitted by a plaintiff c a n n o t defeat a properly supported motion for summary judgment filed by the defendant." Venter v. Potter, 694 F. Supp. 2d 412, 433 (W.D.Pa. 2010). As to his statements c o n c ern in g the cost to TRHMC of contract nurses relative to staff nurses, he sets forth no b a sis for this belief, and because he does not work for TRHMC or have any basis for p ro f e ss in g knowledge of its cost considerations, I will not credit his assertion. In sum, even assuming that Ms. Malarkey had stated certain elements of a prima fa c ie case of employment discrimination in violation of the ADEA, she has failed to show th a t age discrimination was the but-for cause for her termination of assignments in the E m e rg e n c y Department. TRHMC has offered a legitimate, non-discriminatory reason for its decision, and Ms. Malarkey has offered no evidence calling it into question.

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C.

T h e Plaintiff Has Not Stated a Viable Claim Under the PHRA

In her sur-reply to TRHMC's motion for summary judgment, Ms. Malarkey raises f o r the first time the argument that, even if she cannot show, as she is required to under th e ADEA, that age was the but for cause of her termination, she can still maintain a c la im under the PHRA because the PHRA does not employ the "but for" test. Judge P o llac k has confronted this argument in the context of a mixed-motives retaliation claim a ss e rte d under both the Americans With Disabilities Act and the PHRA. He noted that " [ a ]s a general, though not sacrosanct rule . . . the PHRA is interpreted in accordance with th e parallel federal anti-discrimination law." Warshaw v. Concentra Health Serv., - - F. S u p p . 2d - - , 2010 WL 2470881at *15 (E.D.Pa. June 14, 2010). Because the antire ta lia tio n provisions of the ADA and the PHRA are "substantially similar," Judge P o lla c k found that there was no reason to depart from the accepted norm of construing the tw o statutes co-extensively. Id. Here, Ms. Malarkey attempts to distinguish the ADEA f ro m the PHRA on the ground that the PHRA "covers more than one type of d is c rim in a tio n ." Pl.'s Sur-Reply, 4. She ignores the real underlying issue -- whether th e re is any significant difference in the language of the PHRA and the ADEA with re sp e c t to the disparate treatment discrimination she alleges occurred here. There is no d if f e re n c e between the relevant language of the two statutes,3 and, as the Third Circuit

The ADEA imposes liability where an employer "fail[s] or refuse[s] to hire or [] discharge[s] any individual or otherwise discriminate[s] 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). The PHRA provides that it is unlawful "for any employer because of -20-

3

h a s instructed: "the PHRA is to be interpreted as identical to federal anti-discrimination law s except where there is something specifically different in its language requiring that it b e treated differently." Fogelman v. Mercy Hosp., Inc., 283 F.3d 561, 567 (3d Cir. 2002). Therefore, Ms. Malarkey's PHRA claim is no more viable than her ADEA claim. IV . C O N C L U SIO N M s . Malarkey has failed to show that she suffered an adverse employment action w h e n TRHMC stopped accepting her as a contract nurse in its Emergency Department a n d she has therefore failed to state a prima facie case of age discrimination. In the a lte rn a tiv e , she has failed to show that a material issue of fact exists whether the reason T R H M C gave for its decision was pretext for employment discrimination. Therefore, I w ill grant TRHMC's motion for summary judgment and enter judgment in favor of TRHMC.

the . . . age . . . of any individual . . . to refuse to hire or employ or contract with, or to bar or to discharge from employment such individual or independent contractor, or to otherwise discriminate against such individual or independent contractor with respect to compensation, hire, tenure, terms, conditions or privileges of employment or contract, if the individual or independent contractor is the best able and most competent to perform the services required." 43 P.S. § 955(a). -21-