Bertig v. Julia Ribaudo Healthcare Group, LLC et al
MEMORANDUM (Order to follow as separate docket entry) re 36 MOTION for Summary Judgment Signed by Honorable James M. Munley on 10/31/17. (sm)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
MARY BETH BERTIG ,
JULIA RIBAUDO HEALTHCARE
GROUP, LLC d/b/a JULIA RIBAUDO :
EXTENDED CARE CENTER and
BRIGHTEN AT JULIA RIBAUDO;
JULIA RIBAUDO SENIOR
SERVICES, LLC d/b/a JULIA
RIBAUDO EXTENDED CARE
CENTER and BRIGHTEN AT JULIA
RIBAUDO; and SABER
HEALTHCARE GROUP, LLC,
Before the court for disposition is a motion for summary judgment filed by
Defendant Julia Ribaudo Healthcare Group, LLC, and Defendant Saber
Healthcare Group, LLC. The matter has been fully briefed and is ripe for
Plaintiff worked at Julia Ribaudo Nursing Home from 1982 until 2014 as a
restorative/nurses' aide. (Doc. 37, Def. Stmt. of Mat. Facts (“SOF”) ¶ 73).1
For this brief factual background section, we will cite to the defendants’
statement of material facts as to which no genuine issue remains to be tried.
Plaintiff has a history of medical problems, including asthma and cancer. She
received her diagnosis of bladder cancer in 2011.2 (Id. ¶ 75). Despite this
diagnosis, plaintiff continued her employment with the defendants. (Id. ¶ 73). She
remained employed by defendants for the next two years. (Id.)
In 2012, Plaintiff took leave from work via the Family and Medical Leave
Act (hereinafter “FMLA”) from May 29, 2012 to June 25, 2012. (Id. ¶ 24). She
completed the necessary FMLA paperwork, and had the FMLA form signed by
her physician who indicated on the form that plaintiff would not require
intermittent leave. (Id. ¶ 25).
The following year, plaintiff missed a total of thirteen days between April
2013 and April 2014. (Id. ¶ 22). According to the call off calendar, which was
reviewed by Shelia Layo, an administrator at Julia Ribaudo, plaintiff called in sick
for various reasons including: foot pain; a stress fracture in her foot; an upset GI;
diarrhea and a temperature; stomach cramps; a sore throat; dizziness; and a
common cold. (Id. ¶ 105). At some point prior to April 2014, Layo spoke with
plaintiff about her attendance issues. (Id. at ¶ 5). The defendants claim that
(Doc. 37). The facts to which we cite are generally admitted by the plaintiff. (See
Doc. 42, Pl.’s Ans. to SOF).
The parties dispute whether the diagnosis was in 2011 or early 2012.
during this meeting, plaintiff did not provide an explanation for her numerous
absences.3 (Id. ¶ 6).
Defendants have a company policy which states that termination may occur
when an employee accrues seven absences within a twelve month rolling period.
(Id. ¶ 18). After tallying plaintiff’s thirteen absences between April 2013 and April
2014, defendants terminated plaintiff from her position in accordance with
company policy. (Id. ¶ 17). The parties agree that none of the absences between
April 2013 and April 2014 were formally designated as FMLA qualifying
absences, but dispute whether they qualify regardless of the absent paperwork.
(Id. ¶ 23).
During plaintiff’s termination meeting, Layo informed plaintiff that she was
being terminated for excessive call offs. (Id. ¶ 38). In response, she told Layo
that she was sick, and asked Layo not to fire her. (Id. ¶ 39). Layo informed
plaintiff that if she was sick she should have taken FMLA leave and that she was
going to have to let plaintiff go. (Id. ¶ 40). Layo told plaintiff that if she started
feeling better, she could come back and they would talk about her getting a
position back. (Id.)
This is a major issue of contention between the parties. Plaintiff claims that she
told Layo at this meeting that she was absent because of her cancer and asthma.
(Doc. 42, Pl.’s Ans. to SOF at 2). Defendants hang the crux of their argument on
the position that the people who were responsible for terminating the plaintiff
were unaware of her bladder cancer and asthma until after plaintiff was
Based upon these facts, plaintiff filed a three-count complaint on November
19, 2015. The complaint raises the following causes of action: Count I,
interference and retaliation under the FMLA; Count II, disability discrimination
and failure to accommodate pursuant to the Americans with Disabilities Act
(hereinafter “ADA”); and Count III, age discrimination in contravention of the Age
Discrimination in Employment Act (hereinafter “ADEA”).
Defendants filed a motion to dismiss on February 22, 2016. On July 12,
2016, we dismissed Count III’s wrongful termination claim based upon the ADEA.
Defendants filed the instant motion for summary judgment on May 3, 2017 with
respect to all remaining claims. This motion is fully briefed and is ripe for
The court has federal question jurisdiction over this FMLA action. See 28
U.S.C. § 1331 (“The district courts shall have original jurisdiction of all civil
actions arising under the Constitution, laws, or treaties of the United States.”); 28
U.S.C. §§ 1343(a)(3), (4) (granting district court jurisdiction over civil actions
brought to redress deprivations of constitutional or statutory rights by way of
damages or equitable relief).
Granting summary judgment is proper if the pleadings, depositions,
answers to interrogatories, and admissions on file, together with the affidavits, if
any, show that there is no genuine issue as to any material fact and that the
moving party is entitled to judgment as a matter of law. See Knabe v. Boury, 114
F.3d 407, 410 n.4 (3d Cir. 1997) (citing FED. R. CIV. P. 56(C)). “[T]his standard
provides that the mere existence of 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) (emphasis in
In considering a motion for summary judgment, the court must examine the
facts in the light most favorable to the party opposing the motion. Int'l Raw
Materials, Ltd. v. Stauffer Chem. Co., 898 F.2d 946, 949 (3d Cir. 1990). The
burden is on the moving party to demonstrate that the evidence is such that a
reasonable jury could not return a verdict for the non-moving party. Anderson,
477 U.S. at 248 (1986). A fact is material when it might affect the outcome of the
suit under the governing law. Id. Where the non-moving party will bear the
burden of proof at trial, the party moving for summary judgment may meet its
burden by establishing that the evidentiary materials of record, if reduced to
admissible evidence, would be insufficient to carry the non-movant's burden of
proof at trial. Celotex v. Catrett, 477 U.S. 317, 322 (1986). Once the moving party
satisfies its burden, the burden shifts to the nonmoving party, who must go
beyond its pleadings, and designate specific facts by the use of affidavits,
depositions, admissions, or answers to interrogatories demonstrating that there is
a genuine issue for trial. Id. at 324.
As noted above, plaintiff’s complaint raises several different causes of
action, and the defendants seek summary judgment on all counts. We shall
address each count in turn.
Count I: FMLA Violations
Plaintiff brings both interference and retaliation claims pursuant to the
FMLA. The FMLA contains two distinct provisions prohibiting employers from: (1)
interfering with an employee’s exercise of her right to take reasonable leave for
medical reasons; and (2) discriminating or retaliating against an employee who
exercises this right. 29 U.S.C. § 2615(a); see also Lichtenstein v. Univ. of
Pittsburgh Med. Ctr., 691 F. 3d 294, 301 (3d Cir. 2012); Callison v. City of Phila.,
430 F.3d 117, 119 (3d Cir. 2005). We start our analysis with the FMLA
A. FMLA Interference
To prove an FMLA interference claim, plaintiff must establish: (1) she was
an eligible employee under the FMLA; (2) the defendants were an employer
subject to the FMLA's requirements; (3) she was entitled to FMLA leave; (4) she
provided notice to the defendants of her intention to take FMLA leave; and (5)
she was denied benefits to which she was entitled under the FMLA. Ross v.
Gilhuly, 755 F.3d 185, 191-92 (3d Cir. 2014) (citations omitted).4 Defendants
contest all of these elements.
An eligible employee is entitled to FMLA leave if she has a “serious health
condition ... involv[ing] ... continuing treatment by a health care provider.” 29
U.S.C. § 2611(11). This includes “any period of incapacity or treatment for such
incapacity due to a chronic serious health condition.” 29 C.F.R. § 825.115(c). A
chronic serious health condition: “(1) Requires periodic visits (defined as at least
twice a year) for treatment by a health care provider, (2) Continues over an
extended period of time, and (3) May cause episodic rather than a continual
period of incapacity.” Id. A serious health condition also includes “treatment for a
serious, chronic health condition which, if left untreated, would likely result in an
absence from work of more than three days.” 29 C.F.R. § 825.113.
“Also, ‘[b]ecause the FMLA [interference claim] is not about discrimination, a
McDonnell Douglas burden-shifting analysis [as established in McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973)] is not required.’ ” Id. at 192
(quoting Sommer v. The Vanguard Grp., 461 F.3d 397, 399 (3d Cir. 2006)).
Plaintiff contends that the FMLA entitles her to leave because her health
conditions, specifically bladder cancer and asthma, qualify as serious health
conditions under the FMLA. (Doc. 41, Pl.’s Br. In Opp’n, at 10). We agree with
the plaintiff. The Department of Labor's regulations, as well as the Act's
legislative history, expressly include “most cancers” and “severe respiratory
conditions” among its examples of qualifying serious health conditions under the
FMLA. S. REP. NO. 103-3, at *29 (1993); See 29 C.F.R. § 825.114, 115(e)-(f).
Courts have also found that asthma qualifies as a serious health condition under
the FMLA. See Gunter v. Cambridge-Lee Indus., LLC, – F. Supp. 3d –, No. 142925, 2016 WL 2735683, at *6-8 (E.D. Pa. May 16, 2016) (finding that plaintiff's
asthma was a “chronic health condition”). Thus, plaintiff's complaint states a
“serious health condition” under the FMLA.
We next address whether plaintiff was entitled to FMLA leave for her
absences during the April 2013 to April 2014 time period. We find that plaintiff’s
claim fails on this element. As we previously discussed, plaintiff does have two
disabilities that qualify her for FMLA leave. Plaintiff was entitled to take leave for
these disabilities under the FMLA, as she had done in 2012 for a brief time
period. However, by plaintiff’s own admission, most of her absences between
April 2013 and April 2014 were unrelated to her asthma and were unrelated to
her bladder cancer—the FMLA qualifying disabilities.
During plaintiff’s deposition, counsel for the defendants asked plaintiff the
reasoning behind every absence that she took between April 2013 and April
2014. As plaintiff chronologically reviewed the call off reports with defense
counsel, plaintiff confirmed reasons unrelated to her cancer or asthma for ten out
of twelve of those days in which she called in sick. (Doc. 37 & Doc. 41, Pl.’s Dep.
(hereinafter “Pl.’s Dep.”) at 73:8-88:17). According to the call off reports from
plaintiff during that time period, reference is made to a problem with her foot, foot
pain, stress fracture in her foot, GI upset, sick, sick, diarrhea/temperature,
stomach cramps, sore throat/dizzy, UTI, and stomach/throat/cold. (Id.) Plaintiff
admits that ten absences within that time period are unrelated to her disability.
(Id. at 89:10-18). Plaintiff claims that two absences may have been caused by
her asthma or bladder cancer, but she cannot be sure. (Id. at 89:23-24). Plaintiff
cannot remember the reason for her final absence, the one which sparked her
termination. (Id. at 88:15-18).
Defendants have a policy in place that termination occurs when an
employee accrues seven absences within a twelve month rolling period. (Doc.
37, SOF ¶ 18). The FMLA prevents the defendants from counting FMLA qualified
absences against the plaintiff when tallying an employee’s number of absences
for termination purposes. See generally Lichtenstein, 691 F.3d 294. However,
FMLA qualified absences aside, plaintiff still missed ten days of work for
miscellaneous reasons—three absences more than allowed by defendants prior
Plaintiff asks us to consider a statement made during her termination
meeting by Shelia Layo, the administrator who terminated plaintiff. While the
parties dispute whether Layo knew of plaintiff’s disability at the time of the
termination meeting, the parties agree that Layo made a comment to the plaintiff
regarding her feeling better in the future and an opportunity to re-apply if the
circumstances present themselves. (Id.; Doc. 37, SOF ¶ 40). Plaintiff, in her
deposition, claims that this is the only evidence that she has that would establish
that she was fired because of having a disability. (Pl.’s Dep. at 91:10-15). We do
not find the statement by Layo to be persuasive in proving or disproving that
plaintiff was terminated because of her disability, as the record is clear that
plaintiff’s illnesses (FMLA qualifying as well as general illnesses) were the reason
for her absenteeism.
Because our analysis ends at the finding that plaintiff was not entitled to
FMLA leave for the absences for which she was fired (a sore throat and sore
foot, for example), we will not consider which employees at Julia Ribaudo, if any,
had notice of plaintiff’s disability. Plaintiff, having successfully applied for and
taken FMLA leave during her employment with defendants in the past, was
aware of the requirements for such leave. (Id. at 21:6-17). In fact, even after
defendants warned her about excessive absenteeism prior to her termination,
plaintiff still did not take any steps toward applying for FMLA leave. (Id. at 23:17). Plaintiff, in rebuttal, argues that the defendants failed to adequately inform her
of her rights under the FMLA. Notably, plaintiff contradicts this in her deposition
where she states that she was advised of her FMLA rights, and was aware of her
obligations as an employee at Julia Ribaudo. (Id. at 113:3-17).
Defendants claim that they terminated plaintiff for excessive absenteeism.
We agree. Because, by her own admission, the reasons that plaintiff missed
work on more than seven occasions, in violation of the company’s policy, were
unrelated to her FMLA disabilities, plaintiff was not entitled for FMLA leave for
these absences. Thus, we will grant summary judgment for the defendants on
Count I of plaintiff’s complaint also raises an FMLA retaliation claim. To
establish an FMLA retaliation claim, the plaintiff must prove that: (1) she engaged
in a protected activity under the FMLA, (2) plaintiff experienced an adverse
employment action following the protected activity, and (3) a causal link exists
between the protected activity and the adverse employment action. Krouse v.
Am. Sterilizer Co., 126 F.3d 494, 500 (3d Cir. 1997).
Again, defendant’s motion for summary judgment contests every element
of this claim. However, based on our abovementioned reasoning, we must end
our analysis at the first element. The protected activity in this case would have
been plaintiff taking FMLA leave for her disabilities. See generally Erdman v.
Nationwide Ins. Co., 582 F.3d 500 (3d Cir. 2009). However, because ten out of at
least twelve of plaintiff’s absences were unrelated to her FMLA disabilities, we
find that plaintiff was not engaged in a protected activity under the FMLA.
Accordingly, we will grant summary judgment for the defendants on this
Count II: ADA Claims
We next address plaintiff's Count II claims for disability discrimination,
retaliation, and failure to accommodate under the ADA. Defendant moves for
summary judgment on these claims. We will address them in turn.
A. Disability Discrimination
To state a claim for disability discrimination under the ADA, plaintiff must
establish that: (1) she has a disability under the ADA; (2) she was otherwise
qualified to perform the essential functions of the job, with or without reasonable
accommodations by the employer; and (3) she suffered an adverse employment
action as a result of discrimination. McDonnell Douglas Corp., 411 U.S. at 802. If
the plaintiff succeeds, the burden of production shifts to the defendant to
“articulate some legitimate, nondiscriminatory reason for the employee's
For a plaintiff to defeat a motion for summary judgment when the defendant
points to a legitimate, non-discriminatory reasons for its action, the plaintiff must
point to some evidence, direct or circumstantial, from which a factfinder could
reasonably either (1) disbelieve the employer's articulated legitimate reasons; or
(2) believe that an invidious discriminatory reason was more likely than not a
motivating or determinative cause of the employer's action. Ezold v. Wolf, Block,
Schorr & Solis-Cohen, 983 F.2d 509, 523 (3d Cir.1992). If the plaintiff has
pointed to evidence sufficient to discredit the defendant's proffered reasons, to
survive summary judgment the plaintiff need not also come forward with
additional evidence of discrimination beyond his or her prima facie case. Fuentes
v. Perskie, 32 F.3d 759 (3d Cir. 1994); Anderson v. Baxter Healthcare Corp., 13
F.3d 1120, 1122-24 (7th Cir.1994); Washington v. Garrett, 10 F.3d 1421, 1433
Defendants have three arguments to support their motion for summary
judgment on this point: (1) plaintiff’s asthma does not qualify as a disability; (2)
plaintiff did not establish a prima facie case because she failed to notify her
supervisors of her disability and request an accommodation; and (3) if plaintiff did
establish a prima facie case, defendants have pointed to a legitimate
nondiscriminatory reason to terminate plaintiff, that being her absenteeism.
As we discussed in our memorandum regarding defendants’ motion to
dismiss, plaintiff clearly qualifies as disabled under the ADA. (Doc. 13 at 9). To
qualify as disabled under the ADA, plaintiffs must establish that (1) they have a
physical or mental impairment that substantially limits one or more of their major
life activities, (2) there is a record of such impairment, or (3) they are regarded as
having such an impairment. 42 U.S.C. § 12102(1). The federal regulations
provide that major life activities include: “[c]aring for oneself, performing manual
tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending,
speaking, [and] breathing....” 42 U.S.C. § 12102(2)(A).
Congress clearly intended the ADA to protect cancer patients from
disability discrimination. See H. Rep. No. 101-485(III), at 29 (1990) (House of
Representatives' legislative history describing 1990 ADA amendments). “Cancer
is a ‘paradigmatic example of such an impairment.’ ” Unangst v. Dual Temp. Co.,
Inc., No. 10-6811, 2012 WL 931130, at *4 (E.D. Pa. Mar. 19, 2012) (quoting
Adams v. Rice, 531 F.3d 936, 952 (D.C. Cir. 2008)). Regarding plaintiff's asthma,
her condition limits her ability to breathe, which, as noted above, is recognized as
a major life activity. See 29 C.F.R. § 1630.2(i)(1)(i). For these reasons, we find
that plaintiff has two qualifying disabilities.
Turning to defendants’ second argument, we address whether plaintiff has
established a prima facie case of disability discrimination. As discussed, plaintiff
has established that she was disabled under the ADA. Additionally, defendants
do not seem to contest that plaintiff was qualified for her position at Julia
Ribaudo. The record supports this finding as well, as defendants employed
plaintiff for over thirty years, and plaintiff continued her employment with them
while suffering from disabilities.
The parties do contest whether plaintiff suffered an adverse employment
decision as the result of discrimination. Specifically, defendants argue that
plaintiff’s failure to notify her supervisors of her disability in the first place and
request and accommodation was “fatal” to her claim. We find that plaintiff has
failed to establish her claim on this element, but we base our finding on different
Indisputably, plaintiff suffered from an adverse employment decision.
However, she has not produced sufficient evidence to show that this decision
was because of her disability. As we explained in detail above, we are faced with
a situation where plaintiff herself admits that she is not able to point to any direct
or circumstantial evidence aside from an ambiguous comment about returning to
work after she takes care of her health and a “feeling” that she was terminated
because of her disability. (Pl.’s Dep. at 91:10-15). While we recognize that the
burden of production to establish a prima facie case is a relatively low burden, we
simply do not find nearly enough evidence to conclude that plaintiff has
established a prima facie case on this point.
Although we agree that defendants have in fact presented a legitimate nondiscriminatory reason for plaintiff’s discharge—her excessive absenteeism, we
need not continue this burden shifting framework. We will grant summary
judgment for the defendants on this claim.
B. ADA Retaliation Claim
To state an ADA retaliation claim, plaintiff must establish that: (1) she
engaged in a protected activity, (2) she experienced an adverse employment
action following the protected activity, and (3) there is a causal link between the
protected activity and the adverse employment action. Krouse v. American
Sterilizer Co., 126 F.3d 494, 500 (3d Cir. 1997). Defendants argue that we need
not consider the three prong analysis here because plaintiff’s claim fails at the
first prong. Specifically, defendants argue that plaintiff did not engage in a
protected activity because she never requested an accommodation until after her
termination in 2014.
The Third Circuit Court of Appeals has held that medical leave may
constitute an appropriate accommodation under the ADA. Conoshenti v. Pub.
Serv. Elec. & Gas Co., 364 F.3d 135, 151 (3d Cir. 2004); see also Buskirk v.
Apollo Metals, 307 F.3d 160, 169-71 (3d Cir. 2002) (finding that an employer's
provision of medical leave was a reasonable accommodation for an injured
employee). Courts disapprove of medical leave as an appropriate
accommodation only in situations where the leave is for an indefinite term. See
Fogleman v. Greater Hazelton Health All., 122 F.App’x. 581, 585-86 (3d Cir.
We agree with the plaintiff that in her case, requesting leave for her
disability likely would have constituted a protected activity under the ADA.
However, because plaintiff was (1) aware of the procedure to obtain FMLA leave,
(2) was given significant warning about her accruing absences prior to
termination, and (3) by her own admittance never actually requested FMLA leave
for her absences, we find that plaintiff was not engaged in a protected activity.
Thus, her claim fails, and we will grant summary judgment for the defendants
regarding this claim.
C. ADA Failure to Accommodate Claim
Plaintiff’s final claim under the ADA is failure to accommodate a disability.
Discrimination under the ADA includes failing to accommodate reasonably “the
known physical or mental limitations of an otherwise qualified individual with a
disability” unless the individual’s employer “can demonstrate that the
accommodation would impose an undue hardship on the operation of the
business.” 42 U.S.C. § 12112(b)(5)(A). A reasonable accommodation could
include a part-time or modified work schedule. 42 U.S.C. § 1211(9).
The law provides that both employer and employee “have a duty to assist
in the search for appropriate reasonable accommodation and to act in good
faith.” Mengine v. Runyon, 114 F.3d 415, 420 (3d Cir. 1997). “An employee can
demonstrate that an employer breached its duty to provide reasonable
accommodations because it failed to engage in the interactive process by
showing that: (1) the employer knew about the employee’s disability; (2) the
employee requested accommodations or assistance for his or her disability; (3)
the employer did not make a good faith effort to assist the employee in seeking
accommodations; and the employee could have been reasonably accommodated
but for the employer’s lack of good faith.” Williams v. Phila. Hous. Auth. Police
Dept., 360 F.3d 751, 772 (3d Cir. 2004).
The record here is clear that between April 2013 and April 2014, plaintiff
never requested an accommodation for her disabilities. She only did so after she
was terminated as an employee. Her failure to request an accommodation during
her employment is fatal to her claim. Accordingly, we will grant summary
judgment for the defendants on this claim.
Count III: ADEA Claim
Finally, we address plaintiff’s claim under the ADEA for a hostile work
When we ruled on defendants’ motion to dismiss this claim initially, we
denied defendants’ motion. (Doc. 13). We explained that the Third Circuit has not
formally recognized such a cause of action. See Slater v. Susquehanna Cty., 465
F.App’x. 132, 138 (3d Cir. 2012) (“We assume, without deciding, that the ADEA
makes available a hostile work environment claim for age-based discrimination
[.]”); see also Lyles v. Phila. Gas Works, 151 F. App’x. 169, 171 n.3 (3d Cir.
2005) (“We have not formally recognized a cause of action[.]”). Where the court
assumed recognition for a hostile work environment cause of action, it reserved
judgment for cases in which the age-based harassment was sufficiently “severe
or pervasive enough to create an abusive working environment.” Slater, 465
F.App’x. at 138.
We concluded at the motion to dismiss stage that plaintiff’s allegations that
defendants treated her rudely and condescendingly, selectively enforced policies
against her, and issued pretextual discipline against her – unlike her younger coworkers was sufficient to assert this claim. (Doc. 13; Compl. ¶¶ 25-26). We
noted, however, that plaintiff had to develop the facts of this claim more fully.
We previously dismissed plaintiff’s ADEA claim for wrongful termination (Doc.
13 at 13-14).
At this point in time, we agree with the defendants that plaintiff has not
further developed any of these allegations. Plaintiff’s brief in opposition to
defendant’s motion for summary judgment on this claim cites the following as
evidence of age discrimination: “. . . Defendants counted disability-related
absences against her for disciplinary purposes, reprimanded her for taking
disability-related absences, made negative comments to her regarding her
conditions, failed to accommodate her conditions or otherwise excuse her
absences, treated her with antagonism after she disclosed her medical condition,
issued her unwarranted discipline and treated her much less favorably than her
non-disabled co-workers.” (Doc. 41 at 24). Even these relatively vague
allegations produced by the plaintiff do not, directly or indirectly, suggest a
scintilla of age-based discrimination.
Ultimately, after reviewing plaintiff’s brief on this matter, we were only able
to find one conclusory sentence regarding this claim: “. . . the record
demonstrates that Ms. Bertig was treated much less favorably than her younger
colleagues.” (Id.) We carefully reviewed the record.
Plaintiff who, at the time, was 56 years old, alleges that defendants “just
treated [her] differently” and that on one occasion she was written up for
something that she had permission to do while another co-worker was not. (Pl.’s
Dep. at 23:14-17). She also claims that she was pulled to the floor more than the
other restorative aide, Vicky Scudillo, who was somewhere between 45 and 48
years old. (Id. at 24:5-10). When pushed on these allegations, plaintiff seemed to
be uncertain as to why she believes she was treated differently because of her
age, and suggested that it might be because she was just not a “favorite” of the
administration. (Id. at 24:17). Plaintiff claims that those who were over the age of
40 were treated poorly in comparison to those under the age of 40. (Id. at 123:69). Notably, Vicky Scudillo, who was over the age of 40, was a “favorite,” which
contradicts plaintiff’s argument. (Id. at 24:19).
We find insufficient evidence of age-based harassment severe or pervasive
enough to create a hostile working environment. The evidence plaintiff has
proffered is not the material of a hostile work environment claim. We will grant
summary judgment for the defendants on this claim.
For the foregoing reasons, we will grant summary judgment in favor of the
defendants on all counts. An appropriate order follows.
Date: October 31, 2017
s/ James M. Munley______
JUDGE JAMES M. MUNLEY
United States District Court
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