BLOCHER v. UPMC HAMOT HOSPITAL
Filing
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MEMORANDUM OPINION that 23 MOTION for Summary Judgment filed by UPMC HAMOT HOSPITAL will be granted. An appropriate Order follows. Signed by Judge Susan Paradise Baxter on 5/8/19. (lrw)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
KAREN L. BLOCHER,
Plaintiff
v.
UPMC HAMOT HOSPITAL,
Defendant.
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C.A. No. 17-335 Erie
District Judge Susan Paradise Baxter
MEMORANDUM OPINION
I.
INTRODUCTION
A.
Relevant Procedural History
Plaintiff Karen L. Blocher brings this action against Defendant UPMC Hamot Hospital
for alleged violation of her rights under the Age Discrimination in Employment Act, 29 U.S.C.
§§ 621, et seq. (“ADEA”), and the Pennsylvania Human Relations Act, 43 Pa. C.S. §§ 951, et
seq. (“PHRA”). Specifically, Plaintiff claims that she was terminated because of her age, despite
her “excellent” job performance. As relief for her claims, Plaintiff seeks compensatory damages,
costs and attorney’s fees.
Defendant has moved for summary judgment, asserting that Plaintiff’s employment was
terminated for legitimate, nondiscriminatory reasons. [ECF No. 23]. Plaintiff has filed a brief in
opposition to Defendant’s motion, asserting that Defendant’s stated reasons for terminating her
employment were merely a pretext for age discrimination. [ECF No. 32]. In support of this
assertion, Plaintiff cites, inter alia, comments allegedly made by one of Plaintiff’s co-workers
during the EEOC investigation of Plaintiff’s claims, which are referred to in paragraphs 13, 14,
and 15 of Plaintiff’s Counterstatement of Material Facts at Issue (ECF No. 30, at ¶¶ 13-15).
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Defendant has filed a motion in limine to exclude those paragraphs, and the document to which
those paragraphs refer [ECF No. 37], which motion is also pending before the Court. Plaintiff has
filed a brief in opposition to Defendant’s motion in limine [ECF No. 42], and Defendant has filed
replies to both of Plaintiff’s opposition briefs [ECF Nos. 46, 47]. This matter is now ripe for
consideration.
B.
Relevant Factual History
Plaintiff began working for Proctology Associates, the predecessor to UPMC Hamot
Colon and Rectal Surgery, in 1984. (ECF No. 24, Defendant’s Concise Statement of Material
Facts, at ¶ 1). In or around 1994, Plaintiff became Assistant Office Manager. (Id. at ¶ 3).
Defendant purchased Proctology Associates in 2010, and Plaintiff’s title changed to “Front
Office Coordinator and Surgery Scheduler.” (Id. at ¶¶ 5, 7).
On May 31, 2011, Plaintiff received a Corrective Action Report for reading a text
message on a physician’s phone and for retaliating against the employee who reported her to
management for doing so. (Id. at ¶¶ 8-9). As a result, Plaintiff received a one-day suspension
from work without pay, and was warned that “Any further unprofessional or inappropriate
conduct will result in a three-day suspension with review for possible termination.” (Id. at
¶ 10). The Report was issued by Kelli Scarpitti and Robin Williams (“Williams”). (Id. at ¶ 11).
At all times relevant to this case, Williams was Defendant’s Senior Human Resources
Consultant. (ECF No. 24-11, Affidavit of Robin Williams, at ¶ 3).
Anne Gilliland (“Gilliland”) began working for Defendant as Business Manager at Colon
and Rectal Surgeons in September 2011 (ECF No. 24, at ¶ 13). On February 7, 2012, Plaintiff
received a Corrective Action Memo from Gilliland listing ongoing problems with Plaintiff’s
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performance, including lack of teamwork and cooperation, and tardiness and absenteeism. (ECF
No. 24-4). Plaintiff was advised that “continuation of these concerns or any other unacceptable
behaviors/performance will be reviewed for possible termination of employment.” (Id. at p. 2).
On August 24, 2012, Gilliland emailed Plaintiff regarding Plaintiff’s failure to follow
established procedures regarding rescheduling surgeries with the surgery center. (ECF No. 24, at
¶ 18). On April 11, 2013, Gilliland emailed Williams regarding ongoing issues with Plaintiff,
noting “We had a staff meeting on Tuesday and she was upset about the meeting. She then called
off on Wednesday.” (Id. at ¶ 22; ECF No. 24-7).
On August 16, 2013, Gilliland sent Williams an email stating that Plaintiff “is still an
ongoing problem,” and listing a number of items of concern, including, inter alia, Plaintiff’s
“clean[ing] out” of the office of a co-worker who was out on FMLA leave, in violation of
Gilliland’s instructions not to move anything in the office; Plaintiff’s constant “complaining and
blaming people;” Plaintiff’s use of the phrase “Oh my God” at least three times in the presence of
a patient, who then complained that Plaintiff’s language was offensive and unprofessional;
Plaintiff’s inappropriate comments about a physician’s personal life; and Plaintiff’s ongoing
failure to help with answering phones. [ECF No. 24-10].
On August 21, 2013, Plaintiff received a third Corrective Action Report, identifying the
following as the causes for corrective action:
On 3/31/11 you received a final warning for misconduct. On 2/7/12 you
received a document explaining concerns with your performance/behavior
and my expectations as outlined in this document in areas of teamwork,
collaboration and professionalism. Furthermore, on or about August 2,
2013 you cleaned out your co-worker’s office, disregarding my prior
directions not to do so. This behavior is insubordinate.
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(ECF No. 24-12). The Report was signed by both Williams and Gilliland, who were both present
at Plaintiff’s corrective action meeting on August 21, 2013, during which Plaintiff was informed
by Williams that her employment was terminated. (Id.; ECF No. 24, at ¶¶ 38, 39).
C.
Discussion
1.
ADEA Order of Proof1
The order of proof in a suit under the ADEA mirrors that of a Title VII discrimination
action. McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973); Rodriguez v. Taylor, 569 F.2d
1231, 1239 (3d Cir. 1977), cert denied, 436 U.S. 913 (1978). Plaintiff must first establish a prima
facie case of age discrimination by proving the following four basic facts: (i) she is within the
protected age group of 40-70; (ii) she was the subject of an adverse employment action; (iii) she
was qualified for the position in question; and (iv) younger employees were treated more
favorably. Proof of these basic facts raises an inference of discrimination, which is given the
force and effect of a rebuttable presumption. Texas Department of Community Affairs v.
Burdine, 450 U.S. 248 (1981).
Once a prima facie case is established, the employer must then articulate a legitimate,
non-discriminatory reason for the adverse employment action. Burdine, 450 U.S. at 254;
Santiago v. Brooks Range Contract Servs., 618 Fed. Appx. 52, 54-55 (3d Cir. 2015). The
employer need not persuade the court that it was actually motivated by the proffered reasons, but
needs only to raise a factual issue as to whether it discriminated against the plaintiff. Burdine, at
254-55. This burden is satisfied if the employer “simply ‘explains what [it] has done’ or
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The Third Circuit has held that “the same analysis used for ADEA is also applied to PHRA claims.” Prewitt v.
Walgreens Co., 92 F. Supp. 3d 292 n. 4 (E.D.Pa. 2015), citing Fasold v. Justice, 409 F.3d 178, 183-84 (3d Cir.
2005). Thus, Plaintiff’s PHRA claim is subsumed in the Court’s discussion of his ADEA claim.
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‘produc[es] evidence of legitimate nondiscriminatory reasons.’” Board of Trustees of Keene
State College v. Sweeney, 439 U.S. 24, 25, n.2 (1978). Thus, “the employer need only produce
admissible evidence which would allow the trier of fact rationally to conclude that the
employment decision had not been motivated by discriminatory animus.” Burdine, 450 U.S. at
257.
Once the employer has met its relatively light burden of articulating a legitimate reason
for the adverse employment decision, the burden shifts back to the plaintiff to show by a
preponderance of the evidence that the employer’s proffered explanation is pretextual. Id.
Plaintiff may meet this burden either directly, by persuading the court that the employer’s action
was more likely motivated by a discriminatory reason, or indirectly, by showing that the
employer’s proffered explanation is unworthy of credence. See McDonnell Douglas, 411 U.S. at
804-805.
Throughout this burden-shifting paradigm the ultimate burden of proving intentional
discrimination always rests with the plaintiff. See Burdine, 450 U.S. at 253-256. Plaintiff may
meet this burden if his “prima facie case, combined with sufficient evidence to find that the
employer’s asserted justification is false, may permit the trier of fact to conclude that the
employer unlawfully discriminated.” Reeves v. Sanderson Plumbing Products, Inc., 530 U.S.
133, 148 (2000).
In this case, Defendant has assumed for purposes of its motion that Plaintiff has met her
burden of establishing a prima facie case of age discrimination and, instead, argues that it had
legitimate, non-discriminatory reasons for terminating Plaintiff’s employment and that Plaintiff
has failed to prove that such reasons were merely a pretext for age discrimination. Thus, this
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Court will focus attention on the second and third prongs of the McDonnell-Douglas burdenshifting analysis.
2.
Defendant’s Proffered Non-Discriminatory Reasons
According to Defendant, Plaintiff was terminated for the reasons described in the third
Corrective Action Report that was issued to Plaintiff on August 21, 2013, including her failure
“to meet expectations … in areas of teamwork, collaboration and professionalism,” and
insubordination attributable to “clean[ing] out [her] co-worker’s office, disregarding [] prior
directions not to do so.” [ECF No. 24-12]. Thus, Defendant has met its relatively light burden of
proffering legitimate, non-discriminatory reasons for having terminated Plaintiff’s employment.
3.
Plaintiff’s Burden to Prove Pretext
The burden now shifts to Plaintiff to prove by a preponderance of evidence that
Defendant’s proffered reasons were actually a pretext for age discrimination. Burdine, 450 U.S.
at 257. Plaintiff “may defeat a motion for summary judgment by either (i) discrediting the
proffered reasons, either circumstantially or directly, or (ii) adducing evidence, whether
circumstantial or direct, that discrimination was more likely than not a motivating or
determinative cause of the adverse employment action.” Fuentes v. Perskie, 32 F.3d 759, 764 (3d
Cir.1994). Yet, “regardless of which prong of the Fuentes test plaintiff chooses to establish
pretext, ‘the plaintiff’s evidence must allow a reasonable jury to find, by a preponderance of the
evidence, that age discrimination was the ‘but-for’ cause for the adverse employment action.’”
Wareham v. Dollar Bank, 937 F.Supp. 2d 656, 668-69 (W.D. Pa. 2013), quoting Abels v. DISH
Network Serv., LLC, 507 Fed. Appx. 179, 183 (3d Cir. 2012) (citations omitted). “In other
words, ‘it is not enough … to disbelieve the employer,” but rather, “the plaintiff must show ‘both
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that the reason was false, and that discrimination was the real reason[.]’” Wareham, 937
F.Supp.2d at 669, quoting St. Mary’s Honor Ctr. V. Hicks, 509 U.S. 502, 511 n.4 & 515 (1993)
(emphasis in original).
While the Court recognizes that requiring such proof “places a difficult burden on the
plaintiff, ‘[i]t arises from an inherent tension between the goal of all discrimination law and our
society’s commitment to free decisionmaking by the private sector in economic affairs.’”
Fuentes, 32 F.3d at 765, quoting Ezold v. Wolf, Block, Schorr & Solis-Cohen, 983 F.2d 509, 531
(3d Cir. 1992). “Barring discrimination, a company has the right to make business judgments on
employee status, particularly when the decision involves subjective factors deemed essential to
certain positions.” Healy v. New York Life Ins. Co., 860 F.2d 1209, 1220 (3d Cir. 1988).
Nonetheless, while the Court acknowledges that “[d]irect proof of age discrimination is often
unavailable or difficult to find.... we do not infer from the nature of discrimination suits that a
jury determination is required in every case.” Billet v. CIGNA Corp., 940 F.2d 812, 828 (3d Cir.
1991) (citation omitted).
a.
Evidence Intended to Discredit Defendant’s Proffered Reasons
To discredit a legitimate reason proffered by the employer, a plaintiff must present
evidence demonstrating “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.’” Fuentes, 32 F.3d at 765. Thus, the
onus is on Plaintiff to “cast[ ] sufficient doubt upon each of the legitimate reasons proffered by
the defendant so that a factfinder could reasonably conclude that each reason was a fabrication.”
Fuentes, 32 F.3d at 759. “In simpler terms, [Plaintiff] must show, not merely that the employer’s
proffered reason was wrong, but that it was so plainly wrong that it cannot have been the
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employer’s real reason.” Keller v. Orix Credit Alliance, Inc., 130 F.3d 1101, 1109 (3d Cir.
1997).
Here, Plaintiff seeks to discredit Defendant’s proffered reasons for terminating her
employment by raising arguments aimed at negating them. First, Plaintiff asserts that the
primary reason offered for Plaintiff’s termination - insubordination - did not occur. Principally,
Plaintiff contends that she never received an order from Gilliland to refrain from moving items
in the office of Annette Krusewicz (“Annette”), and that she was, in fact, given a box by
Gilliland to put Annette’s belongings in. To buttress this latter contention, Plaintiff references a
note purportedly written by an unidentified EEOC investigator indicating that one of Plaintiff’s
co-workers, Teri Christiansen (“Christiansen”), “heard” Gilliland offer Plaintiff a box to put
Annette’s belongings in; however, when asked about this notation during her deposition in this
matter, Christiansen testified that she was not present to hear Gilliland offer Plaintiff a box, but
that Plaintiff told her that Gilliland did so. (ECF No. 31, Christiansen deposition transcript, at p.
52 (internal p. 24)). Thus, it is apparent that Christiansen was merely parroting Plaintiff’s own
words. Such “evidence”, even assuming it is admissible,2 provides little, if any, support to
Plaintiff’s argument that Defendant’s proffered reason of insubordination “did not occur.”
Second, Plaintiff attempts to undermine Defendant’s “heavy emphasis” on her “allegedly
insubordinate behavior” by arguing that she “was not confronted about this behavior until nine
days after it was allegedly discovered.” (ECF No. 32, Plaintiff’s Opposition Memorandum, at
p. 2). However, the Third Circuit Court has held that “[a] company is under no obligation to
2
The notation referenced by Plaintiff is the subject of Defendant’s pending motion in limine [ECF No. 38]. Since the
Court finds the notation to have little, if any, evidentiary value, Defendant’s motion in limine will be dismissed as
moot.
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warn plaintiff of complaints regarding his performance and, if anything, the effect of such
evidence is equivocal, perhaps indicating that plaintiff was receiving the benefit of the doubt.”
Healy, 860 F.2d at 1216; see also Keller, 130 F.3d at 1111 (a “reasonable factfinder could draw
only a relatively weak inference” from an absence of explicit criticism before termination).
Thus, the mere delay in confronting Plaintiff with her insubordinate behavior fails to tip the
scale toward a finding that Defendant’s proffered reason was fabricated or unworthy of
credence.
Third, Plaintiff argues that Defendant’s “sole focus on insubordination via its
representation to the Pennsylvania Unemployment Office and in its internal reporting is
inconsistent with its current contention there were many reasons which led to Plaintiff’s
termination.” (ECF No. 32, at p. 3) (emphasis in original). In other words, because Defendant
chose to focus on insubordination as the basis for Plaintiff’s termination in its defense of her
unemployment compensation claim, Plaintiff calls into question the legitimacy of any reasons
related to unsatisfactory job performance that have been proffered by Defendant in this case.
This argument is without merit.
As noted earlier, the August 21, 2013, corrective action report that led to Plaintiff’s
termination specifically referenced Plaintiff’s job performance issues, including her failure “to
meet expectations … in areas of teamwork, collaboration and professionalism.” [ECF No. 2412]. Thus, Defendant’s proffered reasons related to unsatisfactory job performance were made
apparent at the time of Plaintiff’s termination and cannot be discounted simply because
Defendant chose not to emphasize them in Plaintiff’s unemployment compensation proceeding.
Moreover, even if Defendant had raised such performance-related issues here for the first time,
this fact alone would not make them pretextual. See Healy, 860 F.2d at 1215-16 (although post
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hoc explanations made after the initiation of a lawsuit may be suspect, such do not ipso facto
prove pretext; the plaintiff still has the burden of demonstrating that there is reason to disbelieve
the explanation; without such evidence, there is no genuine issue of material fact”).
In short, Plaintiff has simply failed to provide any evidence to show “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.’” Fuentes, 32 F.3d at 765, citing Ezold, 983 F.2d at 531. Thus, Plaintiff has not met
her burden of proving that Defendant’s proffered reasons for terminating her are, in actuality,
pretexts for age discrimination.
b.
Evidence of Discrimination
As an alternative to discrediting Defendant’s proffered reasons for her termination,
Plaintiff can defeat Defendant’s summary judgment motion “by presenting either sufficient
direct evidence or sufficient indirect evidence of discrimination.” Salkovitz v. Pioneer
Electronics (USA) Inc., 188 Fed. Appx. 90, 92 (3d Cir. 2006), citing Monaco v. Am. Gen.
Assur. Co., 359 F.3d 296, 300 (3d Cir. 2004). In this regard, “Plaintiff must show that h[er] age
was a determinative factor in Defendant's decision to terminate h[er], not just that it was one of
a number of motivating factors.” Anderson v. Equitable Resources, Inc., 2009 WL 4730230, at
*14 (W.D. Pa. Dec. 4, 2009), citing Gross v. FBL Fin. Servs., 557 U.S. 167, 177 (2009)
(emphasis in original). Thus, to survive summary judgment, a plaintiff must present evidence by
which a reasonable jury could conclude that her “age was the but-for cause of the challenged
adverse employment action.” Marcus v. PQ Corp., 458 Fed. Appx. 207, 211 (3d Cir. 2012),
citing Gross, 557 U.S. at 177.
Here, Plaintiff's evidence of discrimination is unconvincing. In particular, Plaintiff
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highlights “two overtly ageist statements” allegedly made by Gilliland between April 2012 and
May 2013: (1) a comment that Dr. Reilly’s wife, Bette Reilly, visited the office and spoke only
to Plaintiff because she was jealous of Gilliland and Christiansen, who were both younger and
worked with her husband; and (2) a comment that Gilliland wanted to hire as Dr. Reilly’s
medical assistant someone who was “old and ugly.” (ECF No. 32, at p. 6). In addition, Plaintiff
claims that she reported to Gilliland that a younger co-worker had yelled at her for supposedly
having Alzheimer’s, but Gilliland just laughed and didn’t do anything to discipline the coworker. (Id.). Plaintiff also generally alleges that Gilliland treated two younger employees more
favorably than her. Plaintiff argues that “[t]hese ageist comments, and conduct, combined with
other evidence of pretext (here, the fact that no insubordinate act was committed) may allow a
jury to find [Defendant’s] termination reason was pretextual and return a finding of intentional
age discrimination.” (Id. at p. 11). The Court disagrees.
First, “statements made by non-decision makers or by a decision maker unrelated to the
decisional process itself are not directly evidence” of discrimination. Glanzman v. Metropolitan
Management Corp., 391 F.3d 506, 513 (3d Cir. 2004), citing Price Waterhouse v. Hopkins, 490
U.S. 228, 277 (1989). Assuming, arguendo, that Gilliland was a decision maker, the comments
attributed to her were clearly made outside the context of the termination decision itself.
Moreover, they hardly are sufficient to establish that Plaintiff’s age was the but-for cause of her
termination, particularly in light of Defendant’s proffered reasons that have been found to be
legitimate.
Second, Plaintiff’s offhand argument that Gilliland treated two younger employers more
favorably than her, without more, is insufficient evidence of age discrimination. In a
discrimination case, a plaintiff may offer comparator evidence showing “that the employer has
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treated more favorably similarly situated persons not within the protected class.” Simpson v.
Kay Jewelers, Div. of Sterling, Inc., 142 F.3d 639, 645 (3d Cir. 1998). “In determining whether
employees are similarly situated, we take into account factors such as the employees’ work
responsibilities and supervisors, the nature of the misconduct, and ‘the particular criteria or
qualifications identified by the employer as the reason for the adverse action.’” Vay v Houston,
725 Fed. Appx. 112, 117 (3d Cir. 2018) (citations omitted). In Vay, the Third Circuit upheld the
District Court’s finding that the comparators cited by the plaintiff were not similarly situated to
her because there was no evidence that they engaged in comparable misconduct to that for
which the plaintiff was terminated. Id. Thus, the plaintiff could not show that the comparators
were treated more favorably than her under similar circumstances. The same holds true here, as
the only evidence of favorable treatment offered by Plaintiff is that the two younger employees
were not required to clock out for lunch. (ECF No. 30, at ¶ 21).
Thus, even considering the evidence in the light most favorable to her, Plaintiff has
failed to show that her age was the but-for cause of her termination. As a result, Defendant’s
summary judgment motion will be granted.
An appropriate Order follows.
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