Cassidy v. Pocono Medical Center
MEMORANDUM For the reasons discussed above, Defendant, Pocono Medical Centers Motion to Dismiss Plaintiffs First Amended Complaint Pursuant to Federal Rule of Civil Procedure 12(b)(6) (Doc. 13) is granted in part and denied in part. The motion is gr anted as to Plaintiffs national origin and age discrimination claims, Counts I and II of her First Amended Civil Action Complaint (Doc. 11). The motion is denied as to Plaintiffs Title VII retaliation claim, Count III of her First Amended Civil Acti on Complaint (Doc. 11). Because we cannot say amendment of the dismissed claims would be futile, Counts I and II are dismissed without prejudice and Plaintiff is granted leave to further amend her complaint. An amended complaint is to be filed with in fourteen (14) days of the date of this Memorandum and simultaneously filed Order. re 13 MOTION to Dismiss Plaintiff's First Amended Complaint pursuant to FRCP 12(b)(6) filed by Pocono Medical Center Signed by Honorable Richard P. Conaboy on 10/19/12. (cc, )
UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
JOE L. CASSIDY,
:CIVIL ACTION NO. 3:12-CV-1191
:(JUDGE RICHARD P. CONABOY)
POCONO MEDICAL CENTER,
Here we consider Defendant, Pocono Medical Center’s Motion to
Dismiss Plaintiff’s First Amended Complaint Pursuant to Federal
Rule of Civil Procedure 12(b)(6) (Doc. 13) filed on August 30,
2012, and accompanied by a supporting brief (Doc. 14).
filed Plaintiff’s Brief in Opposition to Defendant’s Motion to
Dismiss Her First Amended Complaint (Doc. 11) on September 28,
2012, after being granted an extension of time within which to do
so (Doc. 21).
Defendant did not file a reply brief and the time
for doing so as passed.
Therefore, this matter is ripe for
With this motion, Defendant seeks dismissal of all claims in
Plaintiff’s First Amended Civil Action Complaint which contains
Count I - Title VII National Origin Discrimination;
Count II - ADEA Age Discrimination; Count III - Title VII
Retaliation; and Count IV - Wrongful Discharge.
Court has accepted the parties’ stipulation that Plaintiff is
withdrawing her Wrongful Discharge claim, Count IV of her Amended
(See Docs. 22, 23.)
Therefore, we will address the
remaining three claims in this Memorandum.
For the reasons
discussed below, we grant the motion in part and deny it in part.
Plaintiff is over forty years of age and is originally from
the United Kingdom.
(Doc. 11 ¶ 16.)
She began her employment with
Defendant as a registered nurse in the emergency room in February
(Doc. 11 ¶ 17.)
In May of 2011, Plaintiff was called into “a so-called
‘informal meeting’” with her director, Edward Knuth, Pat Casole,
and Pat Watkins and was questioned about her name being in a
(Doc. 11 ¶ 19.)
The patient was a hospital
employee admitted to the emergency room on April 25, 2011.
11 ¶ 24.)
Plaintiff was accused of violating HIPAA by allegedly
accessing the patient’s chart.
involved in the patient’s care.
(Doc. 11 ¶ 20.)
(Doc. 11 ¶ 21.)
Plaintiff was not
that she had never reviewed the chart and had no knowledge as to
how her name was in the chart.
(Doc. 11 ¶ 22.)
She also avers
that there are many ways someone else could have used Plaintiff’s
computer “or initiated some other mechanism by which Plaintiff’s
name was involuntarily placed in the patient’s chart.”
(Doc. 11 ¶
At the meeting, Plaintiff said she knew nothing about the
patient and denied accusations of “snooping” in the chart.
11 ¶ 25-26.)
Several weeks later, Plaintiff was called to a formal meeting
with Everett Saunders, Clinical Supervisor for the night shift, and
Karen Giaquinto, Director of Compensation and Benefits.
(Doc. 11 ¶
Plaintiff’s union representative accompanied Plaintiff to
(Doc. 11 ¶ 29.)
(Doc. 11 ¶ 30.)
Plaintiff again denied allegations
Plaintiff was not given an option
to see where her name appeared in the chart.
(Doc. 11 ¶ 33.)
At her termination hearing on May 30, 2011, Plaintiff learned
that her name had not appeared in the body of the chart but was in
the lab results section.
(Doc. 11 ¶ 34.)
She also learned that
approximately 25 names appeared on the chart and only four people
(three nurses and a secretary) were disciplined.
(Doc. 11 ¶ 35.)
All of the individuals disciplined and terminated as a result
of their names appearing in the chart were over forty years of age.
(Doc. 11 ¶ 37.)
Upon information and belief, Plaintiff avers that
her replacement was under the age of forty and not from the United
(Doc. 11 ¶ 38.)
Plaintiff also alleges that she was improperly targeted
because of a previous incident where she refused to criminally
alter medical records.
(Doc. 11 ¶ 42.)
In the earlier incident,
Plaintiff was terminated for accusing management of requesting that
Plaintiff make an alteration to a medical record, something she
asserts she had refused to do.
(Doc. 11 ¶ 39.)
Pursuant to an
arbitration award, Plaintiff got her job back and received
sufficient back pay to make her whole.
(Doc. 11 ¶ 40.)
avers that her return to work in December 2010 caused management
(Doc. 11 ¶ 41.)
Deb Racke, a night
clinical supervisor, was the individual who accused Plaintiff of
falsely accusing management and was also involved in the
accusations related to the patient’s chart which resulted in
Plaintiff’s second termination.
(Doc. 11 ¶ 43.)
Motion to Dismiss Standard
In a motion to dismiss for failure to state a claim, the
defendant bears the burden of showing that no claim has been
Hedges v. United States, 404 F.3d 744, 750 (3d Cir.
2005) (citing Kehr Packages, Inc. v. Fidelcor, Inc., 926 F.2d 1406,
1409 (3d Cir. 1991)).
When reviewing a complaint pursuant to a defendant’s motion to
dismiss for failure to state a claim filed under Federal Rule of
Civil Procedure 12(b)(6), the court does so in the context of the
requirement of Federal Rule of Civil Procedure 8(a)(2) which
requires only “a short and plain statement of the claims showing
that the pleader is entitled to relief.”
The “short and plain
statement” must be sufficient to “give the defendant fair notice of
what the plaintiff’s claim is and the grounds upon which it rests.”
Conley v. Gibson, 355 U.S. 41, 47 (1957), abrogated on other
grounds by Bell Atlantic Corp. v. Twombly, 550 U.S. 433 (2007).
Twombly confirmed that more is required than “labels and
conclusions, and a formulaic recitation of the elements of a cause
of action will not do.”
550 U.S. at 555 (citing Papasan v. Allain,
478 U.S. 265, 286 (1986) (on a motion to dismiss, courts “are not
bound to accept as true a legal conclusion couched as a factual
“Factual allegations must be enough to raise a
right to relief above the speculative level on the assumption that
all allegations in the complaint are true (even if doubtful in
550 U.S. at 555 (citations omitted).
In McTernan v. City of York, 577 F.3d 521, 530 (3d Cir. 2009),
the Third Circuit Court of Appeals set out the standard applicable
to a motion to dismiss in light of the United States Supreme
Court’s decisions in Twombly, 550 U.S. 433 (2007), and Ashcroft v.
Iqbal, 556 U.S. 662, 129 S. Ct. 1937 (2009).
“[T]o survive a motion to dismiss, a
complaint must contain sufficient factual
matter, accepted as true to ‘state a claim
that relief is plausible on its face.’”
Iqbal, 129 S.Ct. at 1949 (citing Twombly, 550
U.S. at 570). The Court emphasized that
“only a complaint that states a plausible
claim for relief survives a motion to
dismiss.” Id. at 1950. Moreover, it
continued, “[d]etermining whether a complaint
states a plausible claim for relief will . .
. be a context-specific task that requires
the reviewing court to draw on its judicial
experience and common sense.” Id. (citation
McTernan, 577 F.3d at 530.
The Circuit Court discussed the effects
of Twombly and Iqbal in detail and provided a road map for district
courts presented with a motion to dismiss for failure to state a
claim in a case filed just a week before McTernan, Fowler v. UPMC
Shadyside, 578 F.3d 203 (3d Cir. 2009).
[D]istrict courts should conduct a two-part
analysis. First, the factual and legal
elements of a claim should be separated. The
District Court must accept all of the
complaint’s well-pleaded facts as true, but
may disregard any legal conclusions. [Iqbal,
129 S. Ct. at 1949.] Second, a District
Court must then determine whether the facts
alleged in the complaint are sufficient to
show that the plaintiff has a “plausible
claim for relief.” Id. at 1950. In other
words, a complaint must do more than allege a
plaintiff’s entitlement to relief. A
complaint has to “show” such an entitlement
with its facts. See Philips [v. Co. of
Alleghany], 515 F.3d [224,] 234-35 [(3d
Cir.2008 )]. As the Supreme Court instructed
in Iqbal, “[w]here the well-pleaded facts do
not permit the court to infer more than the
mere possibility of misconduct, the complaint
has alleged--but it has not ‘show[n]’--‘that
the pleader is entitled to relief.’” Iqbal,
129 S. Ct. at 1949. This “plausibility”
determination will be “a context-specific
task that requires the reviewing court to
draw on its judicial experience and common
Fowler, 578 F.3d at 210-11.
The Circuit Court’s guidance makes clear that legal
conclusions are not entitled to the same deference as well-pled
As noted above, “the court is ‘not bound to accept as true
a legal conclusion couched as a factual allegation.’” Guirguis v.
Movers Specialty Services, Inc., No. 09-1104, 2009 WL 3041992, at
*2 (3d Cir. Sept. 24, 2009) (quoting Twombly, 550 U.S. at 555) (not
Finally, the district court must extend the plaintiff an
opportunity to amend before dismissing a complaint unless amendment
would be inequitable or futile.
See Grayson v. Mayview State
Hosp., 293 F.3d 103, 108 (3d Cir. 2002).
National Origin Discrimination
Defendant maintains Plaintiff has not pled the fourth element
of her Title VII National Origin Discrimination claim.
(Doc. 14 at
Specifically, Defendant argues that Plaintiff has not pled
facts which would lead to an inference of unlawful discrimination
because no facts establish that her employer treated a similarly
situated employee not within the protected class differently than
Plaintiff on the basis of national origin.
(Id. at 7-8.)
Title VII prohibits an employer from discharging an employee
“because of such individual’s race, color, religion, sex, or
42 U.S.C. § 2000e-2(a)(1).
When a plaintiff
lacks direct evidence of such discrimination, her claim falls under
the burden-shifting framework set out in McDonnell Douglas Corp. v.
Green, 411 U.S. 792 (1973).
See, e.g., White v. Planned Sec.
Services, No. 11-4622, 2012 WL 1548962, at *2 (3d Cir. May 3, 2012)
In this scheme, a plaintiff has the burden of
demonstrating a prima face case of unlawful discrimination or
411 U.S. at 802.
The burden then shifts to the
employer to articulate some legitimate, nondiscriminatory reason
for the employer’s action.
It is then up to the plaintiff to
show that the employer’s stated reason for its decision was a
pretext for discrimination.
Id. at 803.
Here Defendant’s argument focuses on Plaintiff’s prima facie
(Doc. 14 at 7.)
The existence of a prima facie case is a
question of law to be decided by the court.
F.3d 789, 797 (3d Cir. 2003).
Sarullo v. USPS, 352
Making out a prima facie case
requires a showing that:
(1) the plaintiff belongs to a protected
class; (2) he/she was qualified for the
position; (3) he/she was subject to an
adverse employment action despite being
qualified; and (4) under circumstances that
raise an inference of discriminatory action,
the employer continued to seek out
individuals with qualifications similar to
the plaintiff’s to fill the position.
McDonnell Douglas, 411 U.S. at 802 . . . ;
Pivirotto v. Innovative Sys., Inc., 191 F.3d
344, 348 n.1, 352, 356 (3d Cir. 1999).
However, the prima facie test remains
flexible and must be tailored to fit the
specific context in which it is applied.
Geraci v. Moody-Tottrup, Int’l, Inc., 82 F.3d
578, 581 (3d Cir. 1996).
352 F.3d at 797-98.
Sarullo noted that “[t]he cental focus of the
prima facie case is always whether the employer is treating some
people less favorably than others because of their race, color,
religion, sex, or national origin.’”
352 F.3d at 798.
Defendant concedes, for purposes of this motion only, that
Plaintiff can satisfy the first three prongs of her prima facie
(Doc. 14 at 7.)
However, Defendant contends Plaintiff has
not satisfied the fourth prong in that she does not establish facts
that would lead to an inference of unlawful national origin
(Doc. 14 at 7.)
Citing Plaintiff’s averment that
she “was treated less favorably than employees who were not from
the United Kingdom,” Defendant notes that four people were
disciplined for their role in accessing a co-employee’s medical
records and Plaintiff makes no reference to their national origin.
(Doc. 14 at 7 (citing Doc. 11 ¶¶ 47, 53).)
Defendant also asserts
that no facts in Plaintiff’s Complaint establish that her employer
treated a similarly situated employee, not within the protected
class, differently than the Plaintiff on the basis of national
(Doc. 14 at 7-8.)
Plaintiff maintains that she has adequately pled this claim.
(Doc. 24 at 6-8.)
However, in so doing, she cites factual
averments contained in her First Amended Complaint which do not
have anything to do with national origin.
(citing Doc. 11 ¶¶ 20-36).)
(See Doc. 24 at 6-7
Following this recitation, Plaintiff
adds that she does not aver that the four other people disciplined
were terminated as she was and she does not aver that they denied
accessing the chart as she does.
(Doc. 24 at 8.)
We agree with Defendant that Plaintiff has failed to state a
claim for national origin discrimination.
national origin discrimination claim, as pled, is based only on her
assertion that she was treated less favorably than employees who
were not from the United Kingdom.
(Doc. 11 § 47.)
assertion is insufficient to meet Plaintiff’s pleading burden.
Plaintiff chooses to satisfy the requirements of the fourth prong
of her prima facie case through comparator evidence,1 her
“[f]actual allegations must be enough to raise a right to relief
above the speculative level.”
Twombly, 550 U.S. at 555 (citations
Here Plaintiff states in her brief what her First
Amended Complaint does not aver regarding comparators (Doc. 24 at
8), but these assertions do not satisfy the Twombly standard.
Therefore, we grant Defendant’s motion regarding Plaintiff’s
national origin discrimination claim.
We also will allow Plaintiff
an opportunity to amend this claim as we cannot say that amendment
would be inequitable or futile.
See Grayson v. Mayview State
Hosp., 293 F.3d 103, 108 (3d Cir. 2002).
Defendant contends that Plaintiff has failed to state a claim
under the ADEA (Age Discrimination in Employment Act, 29 U.S.C. §
621 et seq.).
(Doc. 14 at 6.)
The causal nexus between the harm suffered and membership
in a protected class (which is the essential consideration of the
fourth prong) may be, but is not necessarily, shown by showing
similarly situated individuals outside the plaintiff’s class were
treated more favorably. See Anderson v. Wachovia Mortg. Corp., 621
F.3d 261, 273-275 (3d Cir. 2010) (citing Matzak v. Frankford Candy
& Chocolate Co., 136 F.3d 933, 939 (3d Cir. 1997)).
The ADEA makes it unlawful for an employer to discriminate
against any individual in hiring, termination, compensation, or
conditions of employment on the basis of the individual’s age.
U.S.C. § 623(a)(1).
Where the plaintiff lacks direct evidence of
discrimination, an ADEA claim is evaluated under the burdenshifting framework for Title VII cases outlined in McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973).
See Smith v. City of
Allentown, 589 F.3d 684, 691 (3d Cir. 2009).
As set out above,
this framework places the initial burden on the plaintiff to
establish a prima face case of discrimination.
Plumbing Prods., Inc., 530 U.S. 133, 142 (2000).
Reeves v. Sanderson
If the plaintiff
succeeds in establishing a prima facie case, the burden shifts to
the defendant to articulate a legitimate, non-discriminatory reason
for the adverse employment action.
To prevail, the plaintiff
must prove, by a preponderance of the evidence, that the
defendant’s legitimate reason was in fact pretext of
The elements of the plaintiff’s prima facie case are: 1) the
plaintiff is forty years of age or older; 2) the defendant took an
adverse employment action against the plaintiff; 3) the plaintiff
was qualified for the position in question; and 4) the plaintiff
was ultimately replaced by another employee who was sufficiently
younger to support an inference of discriminatory animus.
589 F.3d at 689 (citing Potence v. Hazleton Area Sch. Dist., 357
F.3d 366, 370 (3d Cir. 2004)).
The Third Circuit Court of Appeals
has also allowed that a plaintiff may satisfy the fourth prong of
the prima facie case by showing that the employer had a continued
need for someone to perform the same work after the plaintiff left.
Pivirotto v. Innovative Systems, Inc., 191 F.3d 344, 354 (3d Cir.
1999) (citation omitted).
Here, for purposes of this motion, Defendant contests only the
fourth prong of the prima facie case.
(Doc. 14 at 6.)
states that “Plaintiff has nowhere in her Complaint stated that she
was replaced by a sufficiently younger person who was similarly
situated,” adding that “Plaintiff makes no reference in her
Complaint to being replaced at all.”
Plaintiff does not dispute these assertions, nor does she
argue that she is proceeding under the alternative fourth prong set
out in Pivirotto.
(See Doc. 24 at 5-6.)
maintains that she is not required to plead every element of a
prima facie case, she recognizes that she “must at least make
‘allegations that raise a reasonable expectation that discovery
will reveal evidence of the necessary element.’”
(Doc. 24 at 5
(citing Fowler v. UPMC Shadyside, 578 F.3d 203, 213 (3d Cir.
Plaintiff’s conclusory assertion that she “has done so in
this case” (Doc. 24 at 5) is insufficient to meet her burden under
Fowler, Twombly and Iqbal.
In support of her assertion that she
has sufficiently pled her ADEA claim, Plaintiff’s opposition brief
does not point to a single paragraph in her First Amended
(See Doc. 24 at 5-6.)
Based on the dearth of factual assertions supporting
Plaintiff’s ADEA claim, we grant Defendant’s motion regarding this
We also will allow Plaintiff an opportunity to amend her
ADEA claim as we cannot say that amendment would be inequitable or
See Grayson v. Mayview State Hosp., 293 F.3d 103, 108 (3d
Defendant asserts that Plaintiff’s retaliation claim is
improper because this claim was not advanced within ninety (90)
days of when she received a right to sue letter from the EEOC.
(Doc. 14 at 8.)
Plaintiff responds that Defendant’s argument
ignores the “relation back” provisions of Federal Rule of Civil
(Doc. 24 at 8.)
Plaintiff further avers that the
retaliation claim in her First Amended Complaint is proper when
considered in the context of Rule 15(c)(1).
not file a reply brief and, therefore, did not refute Plaintiff’s
Because it is Defendant’s burden to show it is entitled
to dismissal of a claim and Defendant has not met this burden,
Defendant’s requested dismissal of Plaintiff’s retaliation claim is
For the reasons discussed above, Defendant, Pocono Medical
Center’s Motion to Dismiss Plaintiff’s First Amended Complaint
Pursuant to Federal Rule of Civil Procedure 12(b)(6) (Doc. 13) is
granted in part and denied in part.
The motion is granted as to
Plaintiff’s national origin and age discrimination claims, Counts I
and II of her First Amended Civil Action Complaint (Doc. 11).
motion is denied as to Plaintiff’s Title VII retaliation claim,
Count III of her First Amended Civil Action Complaint (Doc. 11).
Because we cannot say amendment of the dismissed claims would be
futile, Counts I and II are dismissed without prejudice and
Plaintiff is granted leave to further amend her complaint.
amended complaint is to be filed within fourteen (14) days of the
date of this Memorandum and simultaneously filed Order.
S/Richard P. Conaboy
RICHARD P. CONABOY
United States District Judge
DATED: October 19, 2012
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