REAM v. COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF HUMAN SERVICES, POLK CENTER

Filing 46

MEMORANDUM OPINION & ORDER the Court hereby GRANTS Defendants Motion for Summary Judgment #37 . This case is DISMISSED. Signed by Judge Barbara Rothstein on 11/21/2017. (nk)

UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA

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SHANNON REAM,

Civil Action No. 1:16-cv-173 (BJR)

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MEMORANDUM OPINION
GRANTING DEFENDANT’S
MOTION FOR SUMMARY
JUDGMENT.

Plaintiff,

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v.

COMMONWEALTH OF
PENNSYLVANIA DEPARTMENT OF
HUMAN SERVICES/POLK CENTER,

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Defendant.

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I.

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INTRODUCTION

Currently before the Court is Defendant’s Motion for Summary Judgment (Doc. No. 37).

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Having reviewed the parties’ submissions, the record of the case, and the relevant legal authority, the

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Court will GRANT Defendant’s Motion. The Court’s reasoning follows.

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II.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

Plaintiff Shannon Ream worked as a Residential Service Aide for Defendant Polk Center
from July 2003 through February 2010. (Doc. No. 38 ¶ 1.] Polk Center is a mental health facility

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located in Polk, Pennsylvania and operated by the Commonwealth of Pennsylvania Department of
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Human Services. (Id. ¶ 2.) In 2010 and 2011, Plaintiff filed discrimination and civil rights claims

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against the Department of Public Welfare of the Commonwealth of Pennsylvania; Shirley Pickens,

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the Director at Polk Center since June 2008; and Kathy Garin. (Id. ¶¶ 5, 38.) These actions were

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resolved via a settlement memorialized on February 27, 2012. (Id. ¶¶ 6-7.) The terms of the

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Settlement Agreement and Release of All Claims provided:

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It is further agreed that upon receipt of any request from a non-Commonwealth
employer for prior employment information pertaining to Shannon Ream, the
Department of Public Welfare and/or Polk Center will furnish, as per standard
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procedure, Shannon Ream’s length of service and position prior to separation.
Requests for prior employment information from Commonwealth employers will
be processed in accordance with standard policy and procedure.
(Id. ¶ 10.)

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In 2012 Plaintiff applied for a Corrections Officer Trainee position with the Pennsylvania

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Department of Corrections at the State Correctional Institutions at Albion, Forest, Mercer,

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Cambridge Springs, and Venango County. (Id. ¶ 11.) In her application, Plaintiff listed Polk

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Center as a previous employer. (Id. ¶ 12.) Plaintiff received a letter dated October 23, 2012 from
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the State Correctional Institution at Mercer (“SCI-Mercer”) extending a conditional offer of

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employment as a Corrections Officer Trainee. (Id. ¶ 13.) The offer letter provided that an

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appointment date could not be established until Plaintiff successfully passed a required medical

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examination and TB test, received a satisfactory background check, and met other requirements.

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(Id. ¶ 14.) “Additionally,” the letter stated, Plaintiff’s “actual appointment as a Corrections Officer

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Trainee is contingent upon the availability of Corrections Officer Trainee positions, Central office

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approval to hire, and our ability to appoint you within the Civil Service rules.” (Id.)
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In his role as Field Human Resources Officer at SCI-Mercer in 2012-2013, John Biondo

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was familiar with Plaintiff’s application for employment.

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consideration of Plaintiff’s application was a call placed to Polk Center to obtain prior employment

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information; Biondo never spoke to anyone at Polk Center about Plaintiff; and Plaintiff has no

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(Id. ¶ 21.) At no point during the

knowledge of Shirley Pickens ever speaking to anyone at SCI-Mercer in 2012. (Id. ¶¶ 25-27.)
Pickens testified that from the time Plaintiff’s prior litigation was settled in February 2012 until

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the present, she did not have any contact with anyone from the Department of Corrections
regarding Plaintiff. (Id. ¶ 38.)

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A pre-printed form was sent by Biondo’s office, under his signature, to the personal
references and previous employers listed on Plaintiff’s employment application, which included

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Polk Center, in order to obtain information about previous employment. (Id. ¶ 24.) Robert Withey,

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Director of Human Resources at Polk Center, completed this form for Plaintiff, and it was received

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by Biondo’s office on November 1, 2012. (Id. ¶¶ 28-29.) Other than Withey’s response sent to

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Biondo, Plaintiff has no knowledge or information as to any other contact or communication from

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Polk Center to SCI-Mercer in 2012. (Id. ¶ 30.) The first page of the returned form from Polk
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Center gave Plaintiff’s dates of employment, the classification that she worked under, and in the

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“Comments” section the notation “Decline to comment.” (Id. ¶ 31.) Biondo testified that he did

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not interpret the notation “Decline to comment” as being a bad or negative reference from Polk

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Center, and that the notation was inconsequential in his consideration of Plaintiff’s application.

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(Id. ¶¶ 33-34.)

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On December 7, 2012, the Department of Corrections implemented a hiring freeze that

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covered all positions in all appropriations. (Id. ¶ 44.) That same day, a letter was sent to Plaintiff
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from the Department of Corrections Superintendent notifying her that, “effective immediately ,

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SCI-Mercer is hereby rescinding the offer of conditional employment . . . as the conditions of the

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offer were not able to be satisfied.” (Doc. No. 39-4.) Plaintiff received another letter, also dated

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December 7, 2012, from Theresa J. Coll, Field Human Resources Officer at SCI-Albion, which

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indicated that “Department of Corrections imposed a hiring freeze effective December 7, 2012 due
to budgetary reasons.” (Doc. No. 38 ¶ 45.) Plaintiff was never offered a Corrections Officer

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Trainee position after December 7, 2012. (Id. ¶ 46.)
On July 18, 2014, after Plaintiff completed an eleven month program at Venango
Technical, she became a Licensed Practical Nurse (“LPN”). (Id. ¶ 47.) In November 2018,
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Plaintiff applied for an LPN position at Turning Point, a drug and alcohol treatment facility. (Id.
¶ 48.) As the Director of Nursing at Turning Point in 2014 when Plaintiff applied for the position,

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Erin Darby was involved in the process of hiring employees. (Id. ¶ 49.) Plaintiff interviewed with

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Darby at the end of November 2014. (Id. ¶ 50.) After Plaintiff’s interview, Darby contacted Polk

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Center and spoke by phone with a woman named Shirley concerning Plaintiff’s employment. (Id.

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¶ 51.) Darby remembers that the comments about Plaintiff were negative, and she felt the

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recommendation she received was not to hire Plaintiff. (Id. ¶ 53.)
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Following this phone conversation, Darby contacted Plaintiff and informed her that

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Turning Point would not be hiring her because of a negative reference. (Doc. No. 43 ¶ 63.)

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Plaintiff then pleaded her case to get the job, which prompted Darby to tell her supervisor, “I feel

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like we need to hire [Plaintiff]. I feel like we need to give her a chance.” (Id. ¶¶ 64-65.) Darby’s

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supervisor stated that the decision was Darby’s, and Darby decided to hire Plaintiff. (Id. ¶ 65.)

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Plaintiff started working at Turning Point on December 2, 2014, where she remains gainfully

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employed. (Doc. No. 38 ¶ 55.)
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Plaintiff filed this action in federal court on July 6, 2016, alleging post-employment

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retaliation in violation of Title VII of the Civil Rights Act, 42 U.S.C. §2000e et seq. Defendant’s

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motion for summary judgment (Doc. No. 37) is now ripe.

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III.
Summary

judgment

is

STANDARD OF REVIEW

appropriate

if

“the pleadings,

depositions,

answers to

interrogatories, and admissions on file, together with the affidavits, if any, show that there is no

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genuine issue as to any material fact and that the moving party is entitled to judgment as a matter
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of law.” Fed. R. Civ. P. 56(c). In determining whether to grant summary judgment, a trial court
must resolve all doubts against the moving party and examine the record in a light most favorable
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to the non-moving party. See United States v. Diebold, Inc., 369 U.S. 654 (1962). While the
moving party bears the initial burden of showing the absence of a genuine issue of material fact,

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the non-moving party must raise “more than a mere scintilla of evidence in its favor” in order to

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overcome a summary judgment motion, and cannot survive by relying on “unsupported assertions,

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conclusory allegations, or mere suspicions.” Podobnik v. U.S. Postal Serv., 409 F.3d 584, 594 (3d

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Cir. 2005) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986)); Williams v. Borough of

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West Chester, 801 F. 2d 458, 460 (3d Cir. 1989).
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IV.

DISCUSSION

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The anti-retaliation provisions of Title VII provide former employees with a legal recourse

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against post-employment retaliation. Robinson v. Shell Oil Co., 519 U.S. 337, 346 (1997) (“It

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being more consistent with the broader context of Title VII and the primary purpose of § 704(a),

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we hold that former employees are included within § 704(a)’s coverage.”). Under the burden-

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shifting analysis first established in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), the

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plaintiff must first establish a prima facie case of retaliation. In order to establish a prima facie
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case of post-employment retaliation, a plaintiff must establish three elements: (1) the plaintiff

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engaged in protected activity; (2) the employer took an adverse employment action against the

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employee; and (3) there was a causal connection between plaintiff’s participation in the protected

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activity and the adverse employment action. See Nelson v. Upsala College, 51 F.3d 383, 386 (3d

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Cir. 1995). While the parties agree that the discrimination actions brought by Plaintiff in 2010 and
2011 constitute protected activity, they dispute whether the second and third elements are satisfied.

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Adverse action under the retaliation provision “is not limited to discriminatory actions that
affect the terms and conditions of employment,” but rather encompass all actions which a
reasonable employee would have found to be materially adverse. See Burlington Northern and
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Santa Fe Railway Co. v. White, 548 U.S. 53, 64–70 (2006). Plaintiff alleges two instances of
adverse action: First, when Defendant returned a reference form for Plaintiff to SCI Mercer with

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the statement “Decline to comment” in the section reserved for comments, and second, when

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Defendant allegedly provided a negative job reference for Plaintiff to Turning Point.

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Plaintiff has not established that Defendant’s statement “Decline to comment” in a
reference form Plaintiff constitutes an adverse employment action. The 2012 Settlement between

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Plaintiff and Defendant required Defendant to respond to a prospective employer’s request for
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information pertaining to Plaintiff by “furnish[ing], as per standard procedure, Shannon Ream’s

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length of service and position prior to separation.” (Doc. No. 38 ¶ 10.) The reference form

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provided to SCI Mercer does precisely that by stating that Plaintiff worked full-time as a

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Residential Services Aide from 2003 to 2010. (Doc. No. 39-2 at 22.) Defendant was under no

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obligation to provide further comment, and prudently chose not to given Defendant’s antagonistic

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history with Plaintiff. In the absence of anything positive Defendant wished to convey, declining

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to comment was an effective way for Defendant to complete the reference form honestly without
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committing a post-employment adverse action. Moreover, there is no evidence that SCI Mercer

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perceived Defendant’s declination to comment as negative, that SCI Mercer had any other

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communication with Defendant about Plaintiff, or that SCI Mercer rescinded the conditional offer

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of employment made to Plaintiff because of Defendant’s employment reference.

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Regarding the second alleged instance, Plaintiff has established that Defendant provided a
negative employment reference to Turning Point by answering the question “Would you rehire

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this employee” with “No.” The Court does not credit Defendant’s implausible suggestion that
Turning Point’s interpretation of that response “as a negative reference is more a matter of
miscommunication than a statement by Polk Center on Plaintiff’s abilities.” (Doc. No. 37 at 22.)
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Assuming that a negative reference constitutes adverse employment action, however, Plaintiff is
unable to show damages resulting from the negative reference. “The burden is on the plaintiff to

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establish proximate cause between breach and damage and if the loss caused by a breach cannot

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be isolated from that attributable to other factors, no damages may be awarded.” S.J. Groves &

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Sons Co. v. Warner Co., 576 F.2d 524, 527 (3d Cir. 1978). Plaintiff was able to secure employment

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with Turning Point, where she remained gainfully employed at the time this action was filed,

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irrespective of Defendant’s allegedly negative reference. Absent any cognizable damages, her
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claim must fail.
V.

CONCLUSION

For the foregoing reasons, the Court hereby GRANTS Defendant’s Motion for Summary
Judgment. This case is DISMISSED.
Dated this 21st day of November, 2017.

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Barbara Jacobs Rothstein
U.S. District Court Judge

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