THOMPSON v. UPMC
Filing
45
MEMORANDUM OPINION AND ORDER denying 29 Motion for Summary Judgment. Signed by Judge Terrence F. McVerry on 08/08/2012. (bsc)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
EDITH E. THOMPSON,
Plaintiff,
)
)
)
)
)
)
)
v.
UPMC PRESBYTERIAN SHADYSIDE,
Defendant.
02: 10-CV-1488
MEMORANDUM OPINION AND ORDER OF COURT
Presently before the Court for disposition is the MOTION FOR SUMMARY
JUDGMENT, with brief in support, filed by Defendant, UPMC Presbyterian Shadyside
(Document Nos. 29 and 32, respectively), the brief in opposition filed by Plaintiff (Document No.
38), and the REPLY BRIEF filed by Defendant (Document No. 42).
The issues have been fully briefed and the factual record has also been thoroughly
developed via DEFENDANT’S APPENDIX IN SUPPORT OF ITS MOTION FOR
SUMMARY JUDGMENT (Document No. 31), DEFENDANT’S STATEMENT OF
UNDISPUTED MATERIAL FACT (Document No. 30), the APPENDIX TO PLAINTIFF’S
BRIEF IN OPPOSITION TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
(Document No. 39), and PLAINTIFF’S COUNTERSTATEMENT OF FACTS (Document No.
37).
After a careful consideration of Defendant’s motion, the filings in support and
opposition thereto, the memoranda of the parties, the relevant case law, and the record as a
whole, the Court finds that there are genuine issues of material fact which remain surrounding
the issue of whether Plaintiff’s race was a motivating factor and/or that Plaintiff’s age was a
1
determinative factor in the decision by UPMC Presbyterian Shadyside (“Presby/Shadyside”) to
terminate Plaintiff’s employment. Accordingly, the Motion for Summary Judgment will be
denied.
Procedural Background
Plaintiff, Edith E. Thompson (“Plaintiff”), initiated this lawsuit on November 5, 2010,
by filing a four-count Complaint against her former employer, Presby/Shadyside. Plaintiff
alleges that her employment was unlawfully terminated because of her gender, race and age. The
Court has been advised that Plaintiff has withdrawn her gender claim. See Def’s Brief at 3, n.2.
Therefore, the Court addresses only the remaining claims of alleged unlawful termination in
violation of Title VII, 42 U.S.C. § 2000e-2(a)(1), the Age Discrimination in Employment Act
(“ADEA”), 29 U.S.C. §§623(a)(1), et. seq. and the Pennsylvania Human Relations Act
(“PHRA”), §951, et. seq.
Defendant has filed the instant motion for summary judgment in which it contends that
it is entitled to judgment as a matter of law because Plaintiff is unable to establish a prima facie
case on her Title VII and ADEA claims. In the alternative, Defendant argues that Plaintiff’s
employment was terminated for legitimate, nondiscriminatory reasons, namely “because in her
role as a supervisor, she instructed subordinates to retroactively backfill and sign-off on log
entries on Contrast Warmer Logsheets and Emergency Drug Check Sheets, thereby falsifying
these documents, compromising patient care, and threatening the hospital’s accreditation.” Def’s
Br. at 2. Defendant further argues that there is no evidence that the reason for her termination is
a pretext for unlawful discrimination because “the stated reason for termination – complete loss
2
of trust in a supervisor who directed subordinates to falsify logs – is, in fact, the true reason
Thompson’s employment with the hospital came to an end.” Def’s Br. at 3.
Factual Background
As the law requires, all disputed facts and inferences are to be resolved most favorable
to Plaintiff, the non-moving party
Presby/Shadyside is the flagship hospital of the UMPC health system and serves as the
centralized hub for a wide array of advanced tertiary and community care services which
operates on two campuses located approximately two miles apart – known respectively as the
“Oakland Campus” or “Presby Western Psych” (“Presby”) and the “Shadyside Campus”
(“Shadyside”).
An independent, not-for-profit organization, the Joint Commission on Accreditation of
Healthcare Organizations (“Joint Commission”) accredits and certifies more than 19,000 health
care organizations and programs in the United States, and that accreditation and certification is
recognized nationwide as a symbol of quality that reflects an organization’s commitment to
meeting certain performance standards. If falsified information or documentation is discovered
during an audit, it can jeopardize Joint Commission accreditation. In 2009, falsified
documentation or information may have resulted in preliminary denial of accreditation, which
would subject Presby/ Shadyside to monitoring for a one-year probationary period during which
time the hospital would be required to take corrective action. If the falsification is determined to
be serious enough, it can result in final denial of Joint Commission accreditation, which would
jeopardize all existing Presby/Shadyside contracts that require a Joint Commission accreditation.
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Presby/Shadyside obtains its Center for Medicare and Medicaid Services certification
by and through the Joint Commission’s accreditation. To maintain the Joint Commission’s
accreditation, Presby/Shadyside must undergo on-site inspections by a Joint Commission survey
team at least every three years. The Joint Commission does not announce or schedule specific
inspection dates.
Plaintiff is an African American woman, who was 60 years old at the time her
employment was terminated. Plaintiff worked at UPMC Presby from 2000-2001, then at Magee
Women’s Hospital from 2006-2007, after which she returned to Presby in 2007 and worked there
as a computed tomography or “CT” scanning supervisor until 2008. In 2008, Plaintiff
transferred and began working as a CT scanning supervisor at Shadyside where she remained
until her termination in April 2009.
While working as a CT scanning supervisor, Plaintiff reported to Lydia Kleinschnitz,
director of imaging/radiology (“Kleinschnitz”), who in turn reported to Charles Davis, program
administrator of imaging (“Davis”). Plaintiff supervised approximately fifteen (15) CT
Technologists (or “Techs”) at Shadyside, including Allison Stitt (“Stitt”) and Cassandra
Falkenstein (“Falkenstein”), and she had responsibility for ensuring Joint Commission
compliance in her area and for ensuring that her subordinates complied with standards
established by the Joint Commission.
Staff in the Shadyside CT department performed CT scans on patients, some of which
are conducted with the aid of a contrast agent, which is an intravenously administered dye
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solution that makes structures and organs easier to see. While undergoing CT scans, some
patients experience discomfort when the contrast agent is injected.
Some rooms in the Shadyside CT department contain an emergency drug box, which
houses the drugs that are used to counteract contrast reactions and complications. The drug box
is locked with a plastic tie and is tagged with a serial number and an expiration date of the
medications in the box. The CT department staff is responsible for checking the emergency drug
box and related emergency equipment each day to ensure that the department is prepared to
administer the necessary treatment in the event a patient were to have a contrast reaction.
The department keeps an Emergency Drug Check Sheet that is to be updated every
day by a staff member who checks the emergency drug box and related emergency equipment.
The staff member who completes the log must check the drug box to verify that it is locked and
that the expiration date for the medications in the drug box has not passed, and then record the
tag serial number and expiration date on the log. Additionally, the staff member completing the
log must also check to ensure that the other emergency equipment is in the room and ready for
use.
On March 25, 2009, in anticipation of a Joint Commission audit, Davis and
Kleinschnitz performed a mock Joint Commission audit of the Shadyside scanning area. During
this mock inspection, they discovered that there were missing entries on the March 2009
Emergency Drug Box and Contrast Warmer logs. Davis and Kleinschnitz emphasized to
Plaintiff and the other staff members in the department that the checks must be done and the logs
must be filled out on a daily basis from there on out.
5
Shortly after Davis and Kleinschnitz left the CT department, Plaintiff instructed CT
Techs, Stitt and Falkenstein, to backfill log entries for days that had been missed in March on the
Contrast Warmer Logsheets.
Four days later, on March 29, 2009, Kleinschnitz again inspected the radiology areas
in Shadyside, and observed that the previously discovered blank log entries had been filled in
with information and reflected initials of staff members. When asked, Plaintiff told Kleinschnitz
that she had directed her staff to retroactively complete the blank log entries. Kleinschnitz
advised Plaintiff that this was a problem and that Kleinschnitz needed to discuss the situation
with representatives of the Accreditation and Regulatory Compliance and Human Resources
departments.
Kleinschnitz then notified Linda Conroy, Director of Accreditation and Regulatory
Compliance; Kathy Grills, Human Resources Manager; and Charles Davis, her direct supervisor,
that information had been backfilled on the logs in the Shadyside CT department and that
Plaintiff had directed her staff to backfill the logs. Thereafter, Plaintiff, Stitt, and Falkenstein
were each requested to provide written statements of what had occurred and each confirmed that
Plaintiff had instructed Stitt and Falkenstein to backfill the logs. Kathy Grills explained the
situation to Louis Goodman, Vice-President of Human Resources, and provided him with the
employee statements.
Plaintiff’s employment was terminated on April 14, 2009. She alleges that two
younger white females, Michelle Petit and Lois Miller, were hired to replace her. Plaintiff also
contends that
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backfilling logs, such as the Contrast Warmer Logsheets and Emergency Drug Check Sheets,
was a common practice within Presby/Shadyside.
Standard of Review
“The court shall grant summary judgment if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(a). An issue of material fact is genuine only if the evidence is such that a
reasonable jury could return a verdict for the non-moving party. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248 (1986). In evaluating the evidence at the summary judgment stage, the court
must view the facts in the light most favorable to the non-moving party and draw all reasonable
inferences in its favor. Matreale v. New Jersey Dept. of Military & Veterans Affairs, 487 F.3d
150, 152 (3d Cir. 2007). Final credibility determinations on material issues cannot be made in
the context of a motion for summary judgment, nor can the district court weigh the evidence.
Josey v. John R. Hollingsworth Corp., 996 F. 2d 632 (3d Cir. 1993).
With respect to summary judgment in discrimination cases, the Court’s role is “to
determine whether, upon reviewing all the facts and inferences to be drawn in the light most
favorable to the plaintiff, there exists sufficient evidence to create a genuine issue of material fact
as to whether the employer intentionally discriminated against the plaintiff.” Hankins v. Temple
Univ., 829 F.2d 437, 440 (3d Cir. 1987).
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In deciding a motion for summary judgment, “the judge’s function is not himself to
weigh the evidence and determine the truth of the matter but to determine whether there is a
genuine issue for trial.” Liberty Lobby, 477 U.S. at 249.
Discussion
The Court notes at the outset that while Plaintiff alleges the same acts of
discrimination under three statutes (Title VII, ADEA, and the PHRA), the analysis for the
purpose of summary judgment under the three is the same. See Lewis v. University of Pittsburgh,
725 F.2d 910 (3d Cir. 1983), cert. denied, 469 U.S. 892 (1984).1
Where, as here, no direct evidence of discrimination is being presented and only
circumstantial evidence exists, the analyses of the United States Supreme Court in McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973), and its progeny provide the formulation for
allocating the requisite burdens of proof and production. To prove a discrimination claim under
the burden-shifting analysis set forth in McDonnell Douglas, first, the plaintiff must establish a
prima facie case of discrimination. 411 U.S. at 802. If the plaintiff succeeds, the burden of
production then shifts to the defendant to “articulate some legitimate, nondiscriminatory reason”
for the unfavorable employment decision. Smith v. City of Allentown, 589 F.3d 684, 690 (3d Cir.
2009); Fuentes v. Perskie, 32 F.3d 759, 763 (3d Cir. 1994). The burden then shifts back to the
plaintiff to show by a preponderance of the evidence that the nondiscriminatory reasons
Pennsylvania courts generally interpret the PHRA in accordance with its federal counterparts.
Kelly v. Drexel Univ., 94 F.3d 102, 104 (3d Cir. 1996). Because the analysis of race and age
discrimination claims under the PHRA is largely coterminous with the analysis of such
discrimination claims under Title VII and the ADEA, the claims will be analyzed together.
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articulated by the defendant were merely a pretext for discrimination. McDonnell Douglas., 411
U.S. at 805.
Moreover, the United States Supreme Court has recently found that “the ordinary
meaning of the ADEA’s requirement that an employer took adverse action ‘because of’ age is
that age was the ‘reason’ that the employer decided to act.” Gross v. FBL Financial Services,
557 U.S. 167 (2009). Thus, in order to demonstrate pretext under Fuentes, it is incumbent upon
the plaintiff in an ADEA case to demonstrate that age was a determinative factor or “the ‘but-for’
cause of the employer’s adverse decision;” it is not sufficient to simply show that age was “a
motivating factor.” Gross, 557 U.S. at 176. See also Smith v. City of Allentown, 589 F.3d 684,
691 (3d Cir. 2009) (holding that “the but-for causation standard required by Gross does not
conflict with our continued application of the McDonnell Douglas paradigm in age
discrimination cases.”).
A.
Prima Facie Case
1.
Title VII Claim / Race Discrimination
In order to establish a prima facie case of racial discrimination, a plaintiff must
establish that (1) she is a member of a protected class; (2) she was qualified for the position she
held; (3) she suffered an adverse employment action; and (4) that circumstances of the adverse
employment action give rise to an inference of discrimination. This inference may be reached
when a person not of the protected class fills the position. Jones v. Sch. Dist. of Philadelphia,
198 F.3d 403 at 410-11 (3d Cir. 1999).
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The parties do not dispute that Plaintiff can establish the first three elements of her
prima facie case. However, Defendant contends that Plaintiff fails to meet the fourth element
because there is no evidence that a “similarly situated person outside of Thompson’s protected
class[] was treated more favorably.” (Def. Br. at 2.) The Court disagrees.
When viewing the evidence in the light most favorable to the non-moving party,
Plaintiff can establish that she was replaced first by Michelle Petit and later by Lois Miller, both
of whom are Caucasian. Consequently, the Court finds that Plaintiff has met her burden of
establishing a prima facie case of race discrimination, and the burden then shifts to Defendant to
provide a legitimate, non-discriminatory reason for Plaintiff’s termination.
2.
ADEA Claim / Age Discrimination
In order to establish a prima facie case of age discrimination, a plaintiff must
demonstrate (1) that plaintiff is forty years of age or older; (2) that plaintiff suffered an adverse
employment action; (3) that she was qualified to hold the position; and (4) that plaintiff was
ultimately replaced by another employee sufficiently younger to support an inference of
discriminatory animus. Smith, 589 F.3d at 690.
Again, the parties do not dispute that Plaintiff can establish the first three elements of
her prima facie case. Defendant contends though that Plaintiff fails to meet the fourth element
because there is no evidence of any “similarly situated” person outside of Plaintiff’s protected
age class who was treated more favorably than Plaintiff. Def’s Br. at 2. However, under the
ADEA, a plaintiff need only show that she was replaced with someone sufficiently, or
substantially younger than her and that person does not need to be outside the protected class.
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O’Connor v. Consolidated Coin Caters Corp., 517 U.S. 308, 313 (1996). A unanimous Court in
O’Connor held that “the fact that an ADEA plaintiff was replaced by someone outside the
protected class is not a proper element of the McDonnell Douglas prima facie case.” 517 U.S. at
312. The Court explained:
The discrimination prohibited by the ADEA is discrimination “because of [an]
individual's age,” 29 U.S.C. § 623(a)(1), though the prohibition is “limited to
individuals who are at least 40 years of age,” § 631(a). This language does not
ban discrimination against employees because they are aged 40 or older; it bans
discrimination against employees because of their age, but limits the protected
class to those who are 40 or older. The fact that one person in the protected class
has lost out to another person in the protected class is thus irrelevant, so long as
he has lost out because of his age. Or to put the point more concretely, there can
be no greater inference of age discrimination (as opposed to “40 or over”
discrimination) when a 40 year-old is replaced by a 39 year-old than when a 56
year-old is replaced by a 40 year-old.
Id.
The Court of Appeals for the Third Circuit has declined to establish bright-line rules for
determining what constitutes a sufficiently younger person and in fact has stated “there is no
magical formula to measure a particular age gap and determining if it is sufficiently wide to give
rise to an inference of discrimination.” Barber v. CSX Distribution Services, 68 F.3d 694, 699
(3d Cir. 1995). “Different courts have held, for instance, that a five year difference can be
sufficient, but that a one year difference cannot.” Sempier v. Johnson & Higgins, 45 F.3d 724,
731 (3d Cir. 1995). See also Showalter v. University of Pittsburgh Medical Center, 190 F.3d
231, 236 (3d Cir. 2005) (holding that an eight year age differential was sufficient to satisfy the
fourth element of a prima facie case).
The summary judgment record evidence reflects that Plaintiff was replaced by Lois
Miller, who is eleven (11) years younger than Plaintiff, and Michelle Petit, who is fourteen (14)
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years younger than Plaintiff. Establishing a prima facie case it not intended to be an onerous
burden on a plaintiff. Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981).
Therefore, allowing Plaintiff all reasonable inferences, the Court finds that Plaintiff has met her
burden of establishing a prima facie case by adducing evidence that individuals approximately
eleven (11) years and fourteen (14) years younger than her were hired to replace her.
Consequently, the burden now shifts to Defendant to articulate a legitimate, nondiscriminatory reason for its action.
B.
Legitimate, Non-Discriminatory Reason
As discussed supra, once Plaintiff has established a prima facie case of employment
discrimination, the burden then shifts to the employer to articulate some legitimate,
nondiscriminatory reason for the employee’s termination. McDonnell Douglas, 411 U.S. at 802.
Here, Defendant has provided such a reason - namely that Plaintiff instructed her staff
to retroactively complete the Emergency Drug Check Sheets and Contrast Warmer Logsheets,
which is considered to be a falsification of records. The Court finds that Defendant has met its
“relatively light” burden by “introducing evidence, which, taken as true, would permit the
conclusion that there was a non-discriminatory reason for the unfavorable employment
decision.” Fuentes, 32 F.3d at 763.
C.
Pretext
Because Defendant has stated a legitimate, non-discriminatory reason for its
termination decision, Plaintiff, in order to survive summary judgment on both claims,
must point to some evidence, direct or circumstantial, from which a factfinder
could reasonably either (1) disbelieve the employer’s articulated legitimate
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reasons; or (2) believe that an invidious discriminatory reason was more likely
that not a motivating or determinative cause of the employer’s action.
Id. at 764. In other words, a reasonable factfinder must be able to find that defendant’s proffered
reasons lack credence; the 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 employer’s real
reason.” Atkinson, 460 F.3d at 454 (quoting Keller v. Orix Credit Alliance, Inc., 130 F.3d 1101,
1108-09 (3d Cir. 1997)).
It appears as though the crux of Plaintiff’s pretext argument is that there are numerous
inconsistencies and contradictions in the summary judgment record evidence which create
genuine issues of material fact, such as (i) the decision makers offered inconsistent testimony
about the reasons for the decision to terminate Plaintiff; and (ii) falsification of logs was a
common practice and similarly situated comparators, who allegedly engaged in the exact same
conduct as Plaintiff, but who were Caucasian and younger, were not terminated. The Court will
address these arguments seriatim.
First, Plaintiff steadfastly denies that she was ever directed to not backfill the logs.
However, the Notice of Termination indicates that Plaintiff was terminated because she allegedly
defied her immediate supervisor’s direct order to not backfill the logs; yet, Kleinschnitz denied
that Plaintiff’s alleged disobedience of a direct order played any role in her termination. Grills
agreed and testified that disobeying a direct order by the Plaintiff did not play any role in the
decision to terminate Plaintiff’s employment. (Grills Dep. 29:13, Doc. No. 39-6). On the other
hand, Davis provided conflicting testimony on this issue. First, he testified that he did not know
whether it had been determined that Plaintiff had in fact disobeyed a direct order. Then, he
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testified that disobeying a direct order did play a part in the decision to terminate her
employment. He further stated that the only time a staff person would be disciplined for log
entry error was when he or she was obstinate and did not do what they were directed to do.
(Davis Dep. 120:24, 122:17, Doc. No. 39-3).
Next, Defendant contends that Goodman had the authority to make the decision to
terminate Plaintiff. However, Davis testified that it was the responsibility of Kleinschnitz to
decide a proper discipline. Kleinschnitz testified that she decided that Plaintiff should receive a
written warning, not termination, and that her decision never changed. Davis also testified that
Kleinschnitz felt that a lesser discipline, other than termination, was appropriate for the Plaintiff.
(Davis Dep. Ex. 2).
Goodman admitted in his deposition that he did not know how the recommendation to
terminate Plaintiff’s employment was made. However, Grills testified that Kleinschnitz changed
her mind and agreed that Plaintiff should be terminated. Goodman testified that there was a
disagreement between Kleinschnitz and Grills about the proper punishment for Plaintiff, even
though Grills testified that both parties had agreed upon termination as the proper discipline.
Finally, Plaintiff has adduced evidence of similarly-situated comparators, who
allegedly engaged in the exact same conduct as Plaintiff, but were Caucasian and younger, and
who were not terminated.2 Interestingly, Plaintiff contends that after the logs in her department
were discovered to have been back dated, Davis directed that the improperly backfilled logs be
The summary judgment record reflects that the comparators are all Caucasian; the record
reflects that both Kleinschnitz and Davis are over the age of 40, but the record does not reflect
the ages of the other two comparators.
2
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hidden so that the Joint Commission investigators would not find the logs. Then, Cindy
Matthews, an employee working for the director of Presby/Shadyside’s Regulatory and Risk
Management department, told Kleinschnitz to make a second alteration to the logs by using
white out and exchanging copies of the logs for the originals. And a third alteration of the logs
was ordered by Conroy, the supervisor of Ms. Matthews, when she directed that the original logs
with backfills be restored to the logbook. None of these people received any discipline for their
alleged roles in the falsification of the documents.
Davis also testified in his deposition that he had the same issue of log falsification with
a technologist at Presbyterian and in that matter, the supervisor involved received only a verbal
warning, the lowest form of discipline.
Furthermore, Plaintiff contends that Kleinschnitz, at approximately the same time that
Plaintiff was ordering her employees to backfill certain logs, had instructed an employee in her
department, Ms. Cumi Houser, to back fill a log in the patient holding area. According to
Plaintiff, Kleinschnitz engaged in the exact same conduct which led to Plaintiff’s termination,
yet she received no discipline.
While admittedly a close call, the Court finds that Plaintiff has offered numerous
examples of inconsistencies and contradictions in Defendant’s proffered reason for Plaintiff’s
termination. For that reason, the Court finds that a reasonable jury could conclude that Plaintiff
was discriminated against on the basis of her race and/or age. Accordingly, the Defendant’s
Motion for Summary Judgment will be denied.
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Conclusion
For the reasons outlined above, the Court finds that genuine issues of material fact
exist and Defendant’s motion for summary judgment will be denied.
An appropriate Order follows.
McVerry, J.
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IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
EDITH E. THOMPSON,
Plaintiff,
)
)
)
)
)
)
)
v.
UPMC PRESBYTERIAN SHADYSIDE
Defendant.
02: 10-CV-1488
ORDER OF COURT
AND NOW, this 8th day of August, 2012, in accordance with the foregoing
Memorandum Opinion, it is hereby ORDERED, ADJUDGED, AND DECREED that the
Motion for Summary Judgment filed by Defendant is DENIED.
It is further ORDERED that the parties shall file Pretrial Narrative Statements on or
before August 29, 2012 and either party may file a Supplemental Pretrial Narrative Statement on
or before September 12, 2012.
A Pretrial Conference is scheduled before the undersigned on
Monday, September 17, 2012 at 1:30 P.M.
BY THE COURT:
s/ Terrence F. McVerry
United States District Court Judge
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cc:
Joel S. Sansone, Esquire
Scanlon & Sansone
Email: joelsansone03@msn.com
Kelly Scanlon Graham
Scanlon & Sansone
Email: ksgraham5@verizon.net
Eric A. Todd
Ogletree, Deakins, Nash, Smoak, & Stewart, P.C.
Email: eric.todd@ogletreedeakins.com
James F. Glunt
Ogletree, Deakins, Nash, Smoak, & Stewart, P.C.
Email: jay.glunt@ogletreedeakins.com
April T. Dugan
Ogletree, Deakins, Nash, Smoak, & Stewart, P.C.
Email: april.dugan@ogletreedeakins.com
Philip K. Kontul
Ogletree, Deakins, Nash, Smoak, & Stewart, P.C.
Email: Philip.kontul@ODNSS.com
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