Cassidy v. Pocono Medical Center
Filing
43
MEMORANDUM For the reasons discussed above, Defendant, Pocono Medical Centers Motion for Summary Judgment Pursuant to Federal Rule of Civil Procedure 56 (Doc. 36) is granted. Because judgment in Defendants favor on all claims remaining in Plaintiffs Second Amended Civil Action Complaint (Doc. 27) is proper, all claims are dismissed with prejudice. An appropriate Order is filed simultaneously with this action. Signed by Honorable Richard P. Conaboy on 5/31/13. (cc)
UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
JOE L. CASSIDY,
:
:CIVIL ACTION NO. 3:12-CV-1191
Plaintiff,
:
:(JUDGE RICHARD P. CONABOY)
v.
:
:
POCONO MEDICAL CENTER,
:
:
Defendant.
:
:
___________________________________________________________________
MEMORANDUM
Here we consider Defendant, Pocono Medical Center’s Motion for
Summary Judgment Pursuant to Federal Rule of Civil Procedure 56.
(Doc. 36.)
With this Motion, Defendant seeks judgment in its favor
on all remaining claims in Plaintiff’s Second Amended Civil Action
Complaint (Doc. 27): Count II for violation of the Age
Discrimination in Employment Act; Count III for Title VII
retaliation; and Count IV for violations of the Pennsylvania Human
Relations Act for age discrimination and retaliation.1
For the
reasons discussed below, we conclude Defendant’s Motion is properly
granted.
I. Background
A. Factual Background
Plaintiff began her employment with Defendant as a registered
1
The parties stipulated to the dismissal with prejudice of
Count I of Plaintiff’s Second Amended Civil Action Complaint, a
Title VII National Origin Discrimination claim. (Doc. 33.) The
Court approved the stipulation by Order of March 8, 2013. (Doc.
34.)
nurse in the emergency room in February 2002.
(Doc. 27 ¶ 17.)
At
the time of the allegations set out in her Second Amended
Complaint, Plaintiff was 44 years of age.
(Doc. 37 ¶ 1; Doc. 41 at
13 ¶ 1.)
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
patient’s chart.
(Doc. 27 ¶ 19.)
The patient was a hospital
employee admitted to the emergency room on April 25, 2011.
27 ¶ 24.)
(Doc.
Plaintiff was accused of violating HIPAA by allegedly
accessing the patient’s chart.2
(Doc. 27 ¶ 20.)
Plaintiff was not
involved in the patient’s care.
(Doc. 27 ¶ 21.)
Plaintiff avers
that she had never reviewed the chart and had no knowledge as to
how her name was in the chart.
(Doc. 27 ¶ 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.”
23.)
(Doc. 27 ¶
At the meeting, Plaintiff said she knew nothing about the
patient and denied accusations of “snooping” in the chart.
(Doc.
27 ¶¶ 25-26.)
Several weeks later, Plaintiff was called to a formal meeting
with Everett Saunders, Clinical Supervisor for the night shift, and
2
The Health Insurance Portability and Accountability Act of
1996 (“HIPAA”) protects the privacy, security, and confidentiality
of health information. www.hhs.gov/ocr/privacy/index.html.
2
Karen Giaquinto, Director of Compensation and Benefits.
30.)
(Doc. 27 ¶
Plaintiff’s union representative accompanied Plaintiff to
this meeting.
(Doc. 27 ¶ 31.)
Plaintiff again denied allegations
of wrongdoing, (Doc. 27 ¶ 32), informing the committee that she
could not recall the night the patient was in the ER (Doc. 27 ¶
33).
Plaintiff was not given an option to see where her name
appeared in the chart.
(Doc. 27 ¶ 34.)
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. 27 ¶ 36.)
She also learned that
approximately 25 names appeared on the chart and only four people
(three nurses and a secretary) were disciplined.
Plaintiff was terminated on June 6, 2011.
(Doc. 27 ¶ 38.)
(Doc. 42 at 2.)
Plaintiff was replaced by an individual under the age of 40.
(Doc.
37 ¶ 46.)
Pamela Watkins, Defendant’s Director of Internal Audit and
Compliance, testified that she had discussions with eight employees
implicated in the incident at issue: Plaintiff, Paul Vrablic, Steve
Gember, Christina Cratch, Sasha Sallard, Kelly Kramer, Margarita
Harlin, and Penny Glascow.
3-4).)
(Watkins Dep. 24:7-25:7 (Doc. 36-5 at
She further testified: 1) Vrablic had no explanation except
to state he could have left his computer on and someone else had
access to it: 2) Gember said he may have been in the computer
system because the charge person may have had to move her car and
3
he would have been the charge person for those few minutes and
would check out the people in the ER; 3) Cratch did not offer any
defense but did not admit access to the chart; 4) Sallard said she
was coming on as the charge person at the time and she had reviewed
a number of charts of patients, as necessary; 5) Kelly said she was
to be assigned to the area where this patient was and had gone in
to check on the situation with the patients but she was ultimately
either not assigned to that area or reassigned to another are; 6)
Harlin, whose name did not specifically appear in the record, was
called in to a meeting for a different reason–-something to do with
a name set up in the past that had been misused by someone and was
linked to a computer from which an improper log-in occurred and she
had used the computer at some time that day; and 7) Penny Glascow,
an employee who worked in radiology, offered the defense that maybe
she left her computer on and someone else logged in.
33:6-42:2 (Doc. 36-5 at 6-8).)
In addition to Plaintiff, Defendant
terminated Vrablic, Gember, and Glascow.
(Doc. 36-5 at 8).)
(Watkins Dep.
(Watkins Dep. 42:5-43:14
Watkins testified that Cratch would have been
terminated, but she resigned before any decision was made.
(Watkins Dep. 43:15-44:3 (Doc. 36-5 at 8).)
given an option to resign.
8).)
Kratch had not been
(Watkins Dep. 43:17-21
(Doc. 36-5 at
Sallard, Kramer, and Harlin were not terminated.
(Watkins
Dep. 44: 8-23 (Doc. 36-5 at 8).)
Watkins estimated Glascow’s age to be from late 30's to mid-
4
40's, Vrablic’s age to be over mid-40's, Gember’s age to be late
40's, and Cratch’s age to be late 20's.
(Watkins Dep. 42:18-22,
44:4-7 (Doc. 36-5 at 8); Watkins Dep. 58:3-18 (Doc. 41-3 at 16).)
Plaintiff alleges that she was improperly targeted because of
her age and the fact that she had engaged in prior protected
activity.
(Doc. 27 ¶ 40.)
In the earlier incident, Plaintiff
asserts she “previously had refused to alter a medical record for
Defendant and was previously terminated for accusing management of
requesting that Plaintiff make the alteration.”
(Doc. 27 ¶ 47.)
Pursuant to an arbitration award following a union grievance,
Plaintiff got her job back and received sufficient back pay to make
her whole.
(Doc. 27 ¶ 48.)
Plaintiff avers that her return to
work in December 2010, allegedly “caus[ed] significant
consternation to management.”
(Doc. 27 ¶ 49.)
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. 27 ¶ 51.)
Plaintiff’s
retaliation claim is based on her assertion that Defendant
retaliated against her because she won her job back after a March
2010 termination.
(Doc. 37 ¶ 12; Doc. 41 ¶ 12.)
Plaintiff testified that before May 30, 2011, she was not
subjected to age-related slurs by persons in the Emergency
Department.
(Plaintiff’s Dep. 19:16-19 (Doc. 41-4 at 20).)
5
Edward Knuth, Defendant’s clinical director of the emergency
department, testified that in February 2013 (the time of the
deposition) about 126 staff were employed in the Emergency
Department at Pocono Medical Center.
41-2 at 18).)
(Knuth Dep. 66:22-23 (Doc.
Knuth estimated that the average age of a nurse in
the Emergency Department was mid to late forties when Plaintiff was
employed there and continued to be the same.
(Doc. 41-2 at 18).)
Karen Giaquinto estimated the average age of a
nurse in the hospital to be about 47.
36-3 at 4).)
(Knuth Dep. 66:9-18
(Giaquinto Dep. 46:2-6 (Doc.
Giaquinto also testified that Defendant has a zero
tolerance policy for HIPPA violations.
(Giaquinto Dep. 25:23-26:4
(Doc. 36-3 at 3).)
B. Procedural Background
Plaintiff filed this action on June 21, 2012.
(Doc. 1.)
Following the filing of Defendant Pocono Medical Center’s Motion to
Dismiss Pursuant to Federal Rule of Civil Procedure 12(b)(6) (Doc.
5), Plaintiff filed her First Amended Civil Action Complaint (Doc.
11).
Defendant then filed 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.)
By Order of October
19, 2012, the Court granted the Motion in part and denied it in
part.
(Doc. 26.)
On November 2, 2012, Plaintiff filed her Second
Amended Civil Action Complaint (Doc. 27), the operative Complaint
here as amended by stipulation (see Docs. 33, 34).
6
As set out
previously, the claims remaining are Count II for violation of the
Age Discrimination in Employment Act; Count III for Title VII
retaliation; and Count IV for violations of the Pennsylvania Human
Relations Act for age discrimination and retaliation.
Defendants filed the Motion under consideration here on March
13, 2013.
(Doc. 36.)
The Motion was accompanied by Defendant’s
Statement of Undisputed Facts in Support of Summary Judgment (Doc.
37) and Defendant, Pocono Medical Center’s Brief in Support of
Motion for Summary Judgment Pursuant to Federal Rule of Civil
Procedure 56 (Doc. 38).
After requesting and being granted an
extension of time to file her opposition brief (Docs. 39, 40),
Plaintiff filed her Response in Opposition to Defendant’s Motion
for Summary Judgment (Doc. 41) on April 10, 2013.
Incorporated as
part of this filing is Plaintiff’s Response in Opposition to
Defendant’s Statement of Undisputed Material Facts in Support of
Summary Judgment Motion (Doc. 41 at 13-15).
With the April 18,
2013, filing of Defendant’s Reply Brief in Response to Plaintiffs
Opposition to Defendants Motion for Summary Judgment (Doc. 42),
this Motion was fully briefed and ripe for disposition.
I. Discussion
A.
Summary Judgment Standard
Summary judgment is appropriate when the movant demonstrates
there is no “genuine issue as to any material fact.”
P. 56(a).
Fed. R. Civ.
“[T]his standard provides that the mere existence of
7
some alleged factual dispute between the parties will not defeat an
otherwise properly supported motion for summary judgment; the
requirement is that there be no genuine issue of material fact."
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986).
“An issue is genuine only if there is a sufficient evidentiary
basis on which a reasonable jury could find for the non-moving
party, and a factual dispute is material only if it might affect
the outcome of the suit under governing law.”
Kaucher v. County of
Bucks, 455 F.3d 418, 423 (3d Cir. 2006) (citing Anderson, 477 U.S.
at 248).
In determining whether a genuine issue of fact exists, a
court must resolve all factual doubts and draw all reasonable
inferences in favor of the nonmoving party.
Conoshenti v. Public
Serv. Elec. & Gas Co., 364 F.3d 135, 140 (3d Cir. 2004) (citation
omitted).
The initial burden is on the moving party to show an absence
of a genuine issue of material fact.
Celotex Corp. v. Catrett, 477
U.S. 317, 330 (1986) (citations omitted).
The moving party may
meet this burden by “pointing out to the district court [] that
there is an absence of evidence to support the nonmoving party’s
case when the nonmoving party bears the ultimate burden of proof.”
Id. at 325.
The non-moving party may not rest on the bare
allegations contained in his or her pleadings, but is required by
Federal Rule of Civil Procedure 56 to go beyond the pleadings by
way of affidavits, depositions, answers to interrogatories or the
8
like in order to demonstrate specific material facts which give
rise to a genuine issue.
Id. at 324.
Where underlying facts are
in dispute, the facts are viewed in the light most favorable to the
plaintiff.
Abramson v. William Patterson College of N.J., 260 F.3d
265, 267 (3d Cir. 2001) (citing Drinkwater v. Union Carbide Corp.,
904 F.2d 853, 854 N.1 (3d Cir. 1990).
“In considering a motion for summary judgment, a district
court may not make credibility determinations or engage in any
weighing of evidence.”
Anderson, 477 U.S. at 255.
Therefore, when
evidentiary facts are in dispute, when the credibility of witnesses
may be in issue, or when conflicting evidence must be weighed, a
full trial is usually necessary.
B. Defendants’ Motion
1.
Age Discrimination
Defendant maintains it is entitled to summary judgment on
Plaintiff’s age discrimination claims brought under the ADEA and
PHRA.
(Doc. 38 at 5, 9.)
For the reasons discussed below, we
agree.
Essentially the same analysis applies to age discrimination
claims brought under the ADEA and PHRA.
Glanzman v. Metro. Mgmt.
Corp., 391 F.3d 506, 509 n.2 (3d Cir. 2004).
The ADEA makes it
unlawful for an employer to discriminate against any individual in
hiring, termination, compensation, or conditions of employment
because of the individual’s age.
29 U.S.C. § 623(a)(1).
9
Where the
plaintiff lacks direct evidence of discrimination, an ADEA claim is
evaluated under the burden-shifting 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).
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.
Id.
To prevail, the plaintiff
must prove, by a preponderance of the evidence, that the
defendant’s legitimate reason was in fact pretext of
discrimination.
Id.
To succeed at the third step of the burden-shifting framework,
the plaintiff must “‘present evidence contradicting the core facts
put forward by the employer as the legitimate reasons for its
decision.’”
Mindock v. Weir Minerals North America, No. 11-4416,
2012 WL 4903012, at *3 (3d Cir. Oct. 17, 2012) (not precedential)
(quoting Jalil v. Avdel Corp., 873 F.2d 701, 708 n.6 (3d Cir.
1984)).
“The plaintiff must demonstrate that the defendant’s
legitimate nondiscriminatory reason is pretextual by submitting
evidence that allows a fact finder to either 1) disbelieve or
discredit the employer’s justification; or 2) believe
discrimination was more likely than not a ‘but for’ cause of the
10
adverse employment action.”
Abels v. DISH Network Services, LLC,
No. 12-1291, 2012 WL 6183558, at *3 (3d Cir. Dec. 12, 2012) (citing
Fuentes v. Perskie, 32 F.3d 759, 764 (3d Cir. 19994); Keller v.
Orix Credit Alliance, Inc., 130 F.3d 1101, 1108 (3d Cir. 1997)).
Our Circuit Court has further explained that
[m]erely questioning the wisdom of an
employer's decision is not tantamount to
impeaching its legitimacy. For legitimacy to
be called into question, the plaintiff must
do more than argue the employer was “wrong or
mistaken;” rather, he “must demonstrate such
weaknesses, implausibilities,
inconsistencies, incoherencies, or
contradictions in the employer's proffered
legitimate reasons for its action that a
reasonable factfinder could rationally find
them ‘unworthy of credence,’ and hence infer
‘that the employer did not act for [the
asserted] non-discriminatory reasons.’”
Baker v. United Defense Industries, Inc., 403 F. App’x 751, 756 (3d
Cir. 2010) (not precedential) (quoting Fuentes v. Perskie, 32 F.3d
at 764).
In Gross v. FBL Financial Services, Inc., 557 U.S. 167 (2009),
the Court considered whether the ADEA allowed a mixed motive claim
(where a plaintiff claims that she was treated adversely because of
both permissible and impermissible reasons) and concluded the
statutory text of the ADEA does not authorize mixed motives age
discrimination claims.
557 U.S. at 171, 175.
The Court reasoned
that the words “because of” in § 623(a)(1) mean “by reason of: on
account of” and “[t]hus, the ordinary meaning of the ADEA’s
requirement that an employer took adverse action ‘because of’ age
11
is that age was the ‘reason’ that the employer decided to act.”
557 U.S. at 176.
The Court concluded that to establish a disparate
treatment claim under the ADEA, a plaintiff must prove that age was
the “but-for” cause of the employer’s adverse action.
Id. at 176
(citing, inter alia, cf. W. Keeton, D. Dobbs, R. Keeton, & D. Owen,
Prosser and Keeton on Law of Torts 265 (5th ed. 1984) (“An act or
omission is not regarded as a cause of an event if the particular
event would have occurred without it”)).
As stated by the Third
Circuit Court of Appeals, Gross construed the ADEA’s statutory
language “as requiring the plaintiff to prove but-for causation
from the outset of an ADEA case.”
Gross, 557 U.S. at 177-78).
Smith, 589 F.3d at 690 (citing
This standard does not “require that
age discrimination be the sole cause for an adverse employment
decision to prevail on an age discrimination claim.”
Robinson v.
City of Philadelphia, 491 F. App’x 295, 299 (3d Cir. 2012) (not
precedential) (citing Miller v. CIGNA Corp., 47 F.3d 586, 588 (3d
Cir. 1995)).
To establish a prima facie case of age discrimination, a
plaintiff must show the following: “(1) she is forty years of age
or older; (2) the defendant took an adverse employment action
against her; (3) she was qualified for the position in question;
and 4) she was ultimately replaced by another employee who was
sufficiently younger to permit an inference of discriminatory
animus.”
Burton v. Teleflex Inc., 707 F.3d 417, 426 (3d Cir.
12
2013).
Defendant first maintains Plaintiff cannot establish a prima
facie case of age discrimination because she has not shown that
similarly situated employees were treated differently.
5.)
(Doc. 38 at
While we agree that Plaintiff has not made such a showing, we
do not agree it is necessary for her to do so to establish a prima
facie case.
Defendant’s argument is based on the assertion that the fourth
element of the prima facie case requires a showing that “the
younger person retained was ‘similarly situated.’”
(Doc. 38 at 5
(citing Showalter v. University of Pittsburgh Med. Ctr., 190 F.3d
231, 235 (3d Cir. 1999)).
Defendant’s reliance on Showalter is
misplaced in that Showalter discussed the “similarly situated”
requirement in the context of a reduction in force case.
at 236.
190 F.3d
Although we do not read Showalter to create a “similarly
siutated” requirement at the prima facie stage of the McDonnell
Douglas framework, we need not discuss this matter further because
there is no basis upon which to find it applicable to the case at
bar.3
3
It is true that the Third Circuit has cautioned “that the
elements of [the] prima facie case must not be applied woodenly,
but must rather be tailored flexibly to fit the circumstances of
each type of illegal discrimination.” Geraci v. Moody-Tottrup,
Int’l, Inc., 82 F.3d 578, 581 (3d Cir. 1996); see also Doe v.
C.A.R.S Protection Plus, Inc., 527 F.3d 358, 365 (3d Cir. 2008)
(quoting Geraci, 82 F.3d at 581). However, a requirement that a
retained employee be “similarly situated” to the discharged
employee has a logical basis in a reduction in force (“RIF”) case
13
Defendant does not otherwise argue that Plaintiff cannot
satisfy the elements of her prima facie case.
We conclude that
Plaintiff has made a prima facie showing: Plaintiff was 44 years
old at the time of termination, she was qualified for her position,
she suffered an adverse employment action, and the person who
replaced her, a man in his 20's, was sufficiently younger to permit
an inference of discrimination.
(Doc. 38 at 5; Doc. 41 at 6.)
At the second stage of the McDonnell Douglas framework, we
must decide whether Defendant has come forward with a legitimate,
non-discriminatory reason for the adverse employment action.
Reeves, 530 U.S. at 142.
32 F.3d at 763.
This is a burden of production.
Fuentes,
Defendant states “the proof that Plaintiff
improperly accessed a patient/co-employees [sic] chart or the
Defendant’s belief she did constitutes a legitimate, nondiscriminatory reason for her termination.”
(Doc. 38 at 7.)
Here
the record clearly supports the reason proffered by Defendant.
Turning to the third stage, Plaintiff asserts she “can satisfy
the ‘but for’ test by a preponderance of the evidence.”
at 6.)
(Doc. 41
In support of this assertion, Plaintiff points to the
following: 1) Edward Knuth, the clinical director of the Emergency
Department, testified that one other nurse fired with Plaintiff,
Gember, was about fifty, and another, Vrablic, “was hovering at
which does not apply to a case where an employee was discharged
outside the RIF context and replaced by another.
14
about forty,” and Pamela Watkins, the Director of Internal Audit
and Corporate Compliance, agreed with Knuth (Doc. 41 at 7); 2)
Knuth testified that Gember believed the reason for the termination
was manufactured and that Gember had said something to the effect
that Defendant engaged in a plot or conspiracy (id.); 3) both
Gember and Vrablich denied accessing the patient’s chart improperly
(id.); 4) Defense counsel would not allow Knuth to answer the
question of whether Gember and Vrablic “proffered a reasonable
explanation, in their minds, as to why the chart wasn’t accessed”
(id. at 7-8); 5) Knuth testified that another nurse, Denise Parker,
made a comment saying “you people got rid of [Plaintiff], now you
are trying to get rid of me” (id. at 8); 6) Knuth testified that
Plaintiff was replaced by a male in his mid-twenties who was not
given a pay increase when he took Plaintiff’s position (id.); and
7) if Plaintiff walked away from her computer station without
logging off, it would have remained accessible for forty-five
minutes and anyone could access the patient’s chart through
Plaintiff’s computer (id. at 9).
Plaintiff’s reliance on Knuth’s and Watkins’ testimony about
the ages of Gember and Vrablic is unavailing.
In that four people
were terminated and another would have been had she not resigned,
Plaintiff cannot support but-for causation by establishing that two
of the five (herself and Gember) were in the protected age bracket
and one other (Vrablic) may have been in that he was “hovering at
15
about forty years old.”
(Doc. 41 at 7.)
Furthermore, the record
shows that the other terminated employee (Glascow) was “anywhere
from late 30's to mid-40's” (Watkins Dep. 42:18-22 (Doc. 36-5 at
8)), and the employee who would have been terminated had she not
resigned (Cratch) was believed to be in her late 20's (Watkins Dep.
44:4-7 (Doc. 36-5 at 8)).
Plaintiff’s reliance on Knuth’s testimony that Gember believed
the reason for the termination was manufactured and that Gember had
said something to the effect that Defendant engaged in a plot or
conspiracy does not support but-for causation.
If Plaintiff seeks
to offer Gember’s statements for the truth of Gember’s assertions,
she runs into hearsay problems pursuant to Rules 801 and 802 of the
Federal Rules of Evidence.
Hearsay statements that would be
inadmissible at trial may not be considered for purposes of summary
judgment.
Smith v. City of Allentown, 589 F.3d 684, 693 (3d Cir.
2009) (citation omitted).
When offering hearsay statements as
evidence in opposition to summary judgment, the offering party must
show that the statement is capable of admission at trial.
Here Plaintiff has not done so.
Id.
If Plaintiff seeks to offer
Gember’s statements without regard to whether they are accurate,
she confronts the problem of general relevance.
Finally,
admissibility at trial aside, Gember’s statements present a
subjective view offered without factual foundation.
Because the
Court should not credit conclusory statements offered without
16
factual support by a party seeking to defeat summary judgment,
Chambers ex rel. Chambers v. School District of Philadelphia Bd. of
Educ., 587 F.3d 176, 197 (3d Cir. 2009) (citing Olympic Junior,
Inc. v. David Crystal, Inc., 463 F.2d 1141, 1146 (3d Cir. 1972)
(“Conclusory statements [and] general denials . . . [are]
insufficient to avoid summary judgment.”)), Gember’s statements
cannot be considered supportive of Plaintiff’s attempt to show
pretext.
Knuth’s testimony that both Gember and Vrablich denied
accessing the patient’s chart improperly does not show pretext for
age discrimination in that the four employees terminated all denied
improper activity and, as discussed above, Plaintiff has not
produced evidence that all were in the protected age group.
Furthermore, the record indicates that Defendant chose to terminate
all employees deemed not to have a valid reason for having accessed
the patient’s chart.
Also to be considered is Defendant’s
testimony, uncontraverted by Plaintiff, that it has a zero
tolerance policy regarding HIPAA violations and, if the facts
indicate someone has violated HIPAA, the employee is terminated.
(Gianquinto Dep. 25:23-26:24 (Doc. 36-3 at 3); see also Watkins
Dep. 47:19-48:8 (Doc. 36-5 at 9).)
Plaintiff’s assertion that Defense counsel would not allow
Knuth to answer the question of whether Gember and Vrablic
“proffered a reasonable explanation, in their minds, as to why the
17
chart wasn’t accessed” (Doc. 41 at 7-8), considered in context,
does not show discrimination or pretext.
At Knuth’s deposition,
Defendant’s counsel directed Knuth not to answer because he
objected to the form of the question, asking how Knuth could
“possibly tell what [Gember and Vrablic] had in their minds?”
(Knuth Dep. 81:19-82:2 (Doc. 41-2 at 22).)
not rephrase the question.
Plaintiff’s counsel did
Given this scenario, we can draw no
inference from Defendant’s counsel’s instruction to Knuth.
Knuth’s testimony that another nurse, Denise Parker, made a
comment saying “you people got rid of [Plaintiff], now you are
trying to get rid of me” (Doc. 41 at 8) runs into the same problems
as Knuth’s testimony about Gember’s statements regarding a
perceived plot or conspiracy.
The context in which Parker made the
statement further undermines any reliance upon it: Knuth testified
that Parker’s statement was in response to being served a
discipline on an unrelated matter and Parker had become “abrupt,
angry, yelling, and those are some of the words she chose to use.”
(Knuth Dep. 87:12-23 (Doc. 41-2 at 23).)
Finally, even if someone
were “out to get” Plaintiff (Knuth Dep. 84:14 (Doc. 41-2 at 22)),
absolutely no evidence supports an inference of an age related
motivation and no evidence suggests that Defendant was “out to get”
any other discharged employee on the basis of age or any other
reason.
The fact that Plaintiff was replaced by a male in his mid-
18
twenties satisfied the fourth element of Plaintiff’s prima facie
case.
However, without more, it does not show that the reason
proffered by Defendant was a pretext for age discrimination.
Plaintiff does not say why the fact that her replacement was not
given a pay increase when he took Plaintiff’s position is relevant.
(See Doc. 41 at 8.)
Assuming the assertion to be true, without
more it does not support her claim.
Defendant’s rejection of Plaintiff’s denial and accompanying
alternate scenario (if Plaintiff walked away from her computer
station without logging off, it would have remained accessible for
forty-five minutes and anyone could access the patient’s chart
through Plaintiff’s computer (Doc. 41 at 9)) is not suggestive of
pretext or age discrimination.
Of the four people terminated,
three offered the same explanation and all were rejected.
Gember’s
explanation, offered in a similar “maybe this happened” mode, was
also rejected.
8).)
(Watkins Dep. 33:14-23, 43:13-14 (Doc. 36-5 at 6,
As discussed above, the varied ages of those terminated, the
similar treatment of all who did not have what Defendant deemed a
satisfactory reason for accessing the patient’s chart, and the
total absence of evidence suggesting age related animus undermine
Plaintiff’s reliance on terminated employees’ subjective beliefs
about the worthiness of their proffered excuse.
Finally, taking all of Plaintiff’s supporting assertions
together, we conclude she has not satisfied her burden of showing
19
that Defendant’s proffered reason was a pretext for discrimination.
Plaintiff simply has not demonstrated “such weaknesses,
implausibilities, inconsistencies, incoherencies, or contradictions
in the employer's proffered legitimate reasons for its action that
a reasonable factfinder could rationally find them unworthy of
credence, and hence infer that the employer did not act for the
asserted non-discriminatory reasons.”
Fuentes, 32 F.3d at 764
(internal quotations and citations omitted).
Plaintiff has not shown that age played any role in her
termination.
She has not produced evidence from which a reasonable
factfinder could conclude that but-for her age she would not have
been terminated.
Because Plaintiff has not satisfied her burden at
the third stage of the McDonnell Douglas analysis, summary judgment
in Defendant’s favor is properly granted on Plaintiff’s age
discrimination claims under the ADEA and PHRA.
2.
Retaliation
Defendant asserts Plaintiff cannot establish a prima facie
case of retaliation because she did not engage in protected
activity.
(Doc. 38 at 7-9.)
For the reasons discussed below, we
agree.
To establish a prima facie case of retaliation under Title
VII, a plaintiff must tender evidence of each of the following: 1)
she engaged in activity protected by Title VII; 2) the employer
took an adverse employment action against her; and 3) there was a
20
causal connection between participation in the protected activity
and the adverse action.
321, 341 (3d Cir. 2006).
Moore v. City of Philadelphia, 461 F.3d
Moore further explained each element of
the prima facie case.
With respect to “protected activity,”
the anti-retaliation provision of Title VII
protects those who participate in certain
Title VII proceedings (the “participation
clause”) and those who oppose discrimination
made unlawful by Title VII (the “opposition
clause”). Slagle v. County of Clarion, 435
F.3d 262, 266 (3d Cir. 2006). Whether the
employee opposes, or participates in a
proceeding against, the employer’s activity,
the employee must hold an objectively
reasonable belief, in good faith, that the
activity they oppose is unlawful under Title
VII. Clark County v. Breeden, 532 U.S. 268,
271 . . . (2001) (per curiam) (rejecting
retaliation claim where “[n]o reasonable
person could have believed that” the
underlying incident complained about
“violated Title VII’s standard” for unlawful
discrimination); Aman v. Cort Furniture
Rental Corp., 85 F.3d 1074, 1085 (3d Cir.
1996) (retaliation plaintiff must “act[ ]
under a good faith, reasonable belief that a
violation existed”). Moreover, the
employee’s “opposition” to unlawful
discrimination must not be equivocal. Barber
v. CSX Distribution Servs., 68 F.3d 694, 702
(3d Cir. 1995).
Moore, 461 F.3d at 341.
Retaliation claims asserted under the PHRA
are generally analyzed under the same standards as Title VII
retaliation claims.
See Marra v. Philadelphia Housing Authority,
497 F.3d 286, 300 (3d Cir. 2007).
Here Defendant argues that the activity upon which Plaintiff’s
retaliation claim is alleged to be based is not protected activity.
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(Doc. 38 at 9.)
Defendant states Plaintiff’s claim is based on her
assertion “that she was retaliated against due to the fact that a
previous termination of the plaintiff was overturned by an
arbitration panel.
Plaintiff articulated a belief that her
employer was resentful of her reinstatement and terminated her more
than a year later.”
(Doc. 38 at 7.)
Plaintiff urges the Court to consider her participation in a
union grievance proceeding to be protected activity “under the
unique circumstances of this case.”
(Doc. 41 at 11.)
Plaintiff
relies on Watts v. Kroger Co., 170 F.3d 505, 511 (5th Cir. 1999), in
support of her assertion that “under certain facts and
circumstances the utilization of a union grievance could be
considered a protected activity under Title VII.”
(Doc. 41 at 10.)
Plaintiff provides scant argument in support of her request
for the Court to broadly construe the protected activity
requirement of her prima facie case.
Rather, she summarily states
that the Court should consider the filing of the grievance, in
which she claimed that she was wrongfully terminated for making a
whistleblower complaint, to be protected.
decline to do so.
(Doc. 41 at 11.)
We
Plaintiff’s inadequate argument, her asserted
basis for the grievance, and our independent review of the
arbitration decision (Doc. 41-8 at 2-10) indicate no Title VII
activity is implicated in the filing or resolution of her
grievance.
Watts does not support Plaintiff’s position in that the
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Fifth Circuit did not consider the grievance in the context of a
prima facie case of Title VII retaliation.
170 F.3d at 511.
Further, the plaintiff in Watts filed a union grievance alleging
sexual harassment.
170 F.3d at 508.
Thus, Watts offers no support
for Plaintiff’s position.
In the Third Circuit Court of Appeals, the requirement that
the protected activity be related to conduct prohibited by Title
VII is clear.
“A general complaint of unfair treatment is
insufficient to establish protected activity under Title VII.”
Curay-Cramer v. Ursuline Acad. of Wilmington, Del, Inc., 450 F.3d
130, 135 (3d Cir. 2006); see also Eldridge v. Municipality of
Norristown, No. 12-2282, 2013 WL 811956 (Table), at *2 (3d Cir.
Mar. 6, 2013) (citing Curay-Cramer, 450 F.3d at 135).
Although it
is “the message [the plaintiff] conveyed, and not the medium of the
conveyance” which is important, specificity is required.
68 F.3d at 701-02.
Such specificity is lacking here.
Barber,
Importantly,
Plaintiff makes no claim that her grievance was related to a Title
VII protected activity as that term has been defined in the Third
Circuit.
Therefore, Plaintiff has failed to establish the first
element of her prima facie case and summary judgment in Defendant’s
favor on her Title VII retaliation claim and related PHRA claim is
appropriate.
III. Conclusion
For the reasons discussed above, Defendant, Pocono Medical
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Center’s Motion for Summary Judgment Pursuant to Federal Rule of
Civil Procedure 56 (Doc. 36) is granted.
Because judgment in
Defendants’ favor on all claims remaining in Plaintiff’s Second
Amended Civil Action Complaint (Doc. 27) is proper, all claims are
dismissed with prejudice.
An appropriate Order is filed
simultaneously with this action.
S/Richard Conaboy
RICHARD P. CONABOY
United States District Judge
DATED: May 31, 2013 _____________________
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