SCALAMOGNA v. STEEL VALLEY AMBULANCE
Filing
42
MEMORANDUM OPINION granting 31 MOTION for Summary Judgment filed by STEEL VALLEY AMBULANCE. Order to follow. Signed by Judge David S. Cercone on 3/10/15. (jmc)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
PAMELA LYNN SCALAMOGNA,
Plaintiff,
v.
STEEL VALLEY AMBULANCE,
Defendant.
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2:13cv545
Electronic Filing
MEMORANDUM OPINION
March 10, 2015
I.
INTRODUCTION
Plaintiff, Pamela Lynn Scalamogna (“Scalamogna” or “Plaintiff”) filed a three (3) count
Complaint alleging: (1) gender discrimination in violation of Title VII of the Civil Rights Act of
1964, 42 U.S.C. § 2000e et seq. (“Title VII”); (2) age discrimination in violation of the Age
Discrimination in Employment Act, 29 U.S.C. § 621 et seq. (the “ADEA”); and (3) violations of
the Pennsylvania Human Rights Act, 43 Pa. Cons. Stat. Ann. § 925 et seq. (the “PHRA”), against
Defendant, Steel Valley Ambulance (“Steel Valley” or “Defendant”). Scalamogna also contends
that Steel Valley retaliated against her for complaining about the alleged harassment. See
Amended Complaint ¶¶ 23 & 32. Steel Valley has filed a motion for summary judgment,
Scalamogna has responded and the motion is now before the Court.
Pursuant to the Local Rules of the United States District Court for the Western District of
Pennsylvania, Steel Valley filed a Concise Statement of Material Facts (“Defendant’s CSMF”) in
support of its motion for summary judgment. See LCvR 56(B)(1). Plaintiff’s responses to
Defendant’s CSMF, however, are inappropriate. A party opposing a motion for summary
judgment must file:
A separately filed concise statement, which responds to each numbered paragraph
in the moving party’s Concise Statement of Material Facts by
a.
admitting or denying whether each fact contained in the
moving party’s Concise Statement of Material Facts is undisputed
and/or material;
b.
setting forth the basis for the denial if any fact contained
in the moving party’s Concise Statement of Material Facts is not
admitted in its entirety (as to whether it is undisputed or material)
with appropriate reference to the record . . . ; and
c.
setting forth in separately numbered paragraphs any other
material facts that are allegedly at issue, and/or that the opposing
party asserts are necessary for the Court to determine the motion
for summary judgment[.]
See LCvR 56(C)(1)(emphasis added). In her Counterstatement of Facts (“Plaintiff’s CSOF”),
Plaintiff has failed to admit or deny whether any of Steel Valley’s stated facts are undisputed or
material. Plaintiff, instead, repeats the stated fact, and in most instances provides subparts to the
numbered paragraph, some of which lack an appropriate reference to the record, that are
irrelevant to, and/or outside the scope of, the specific factual statement.1 Material facts set forth
in a moving party’s concise statement of material facts will be deemed admitted for the purpose
of deciding the motion for summary judgment “unless specifically denied or otherwise
controverted by a separate concise statement of the opposing party.” See LCvR 56 (E).
II.
STATEMENT OF THE CASE
Steel Valley is a family-owned ambulance service that provides emergency and medical
paratransit service in and around Homestead, Pennsylvania. Defendant’s CSMF ¶ 1.
Scalamogna was hired by Steel Valley on September 13, 2010 as an ambulance-driving
1
For example, Paragraph 2 of Steel Valley’s CSMF states “Steel Valley has three
management positions. . . John Jumba, Sr. is the Chief Executive Officer, John Jumba, Jr. is the
Chief Operating Officer, and Lori Jumba, John Jumba, Jr.’s wife, is the office manager.” Without
admitting or denying the stated facts, Plaintiff provides forty-eight (48) subparts in her response,
several of which have no citation to the record. See Plaintiff’s CSOF ¶ 2.
2
Emergency Medical Technician (“EMT”). Defendant’s CSMF ¶ 4. As an ambulance-driving
EMT, Scalamogna evaluated and transported patients in need of medical care. Defendant’s
CSMF ¶ 9.
Scalamogna worked as part of a two-person crew, partnering with Paramedics Edward
McCann (“McCann”) and Rick Valesko (“Valesko”) during her period of employment with Steel
Valley. Defendant’s CSMF ¶¶ 14 & 15. During her employment with Steel Valley, Scalamogna
also had several immediate supervisors including: John Jumba, Sr. (“Jumba Sr.”); John Jumba,
Jr. (“Jumba Jr.”); Brandon Simon, Dave Caputo and Bryan Halavanja. Defendant’s CSMF ¶ 13.
Scalamogna typically worked twenty-four (24) hour shifts twice per week. Defendant’s
CSMF ¶ 34. In May 2012, Scalamogna was working a 24 hour shift with McCann that began on
Friday, May 4th and was to end on Saturday May 5th at 8:00 a.m. Defendant’s CSMF ¶¶ 35 & 36.
At 7:30 a.m. on May 5, 2012, Patricia Jumba (“Patricia”), who was working as a dispatcher for
Steel Valley at the time, called Scalamogna and McCann to dispatch them to the Marian Manor
Nursing Home. Defendant’s CSMF ¶ 39. At the time Scalamogna and McCann received the
call, they were in the ambulance on the Parkway East. John Jumba Sr. Deposition, Plaintiff’s
Exhibit 2, (“Jumba Sr. Depo.”) pp. 17-18. Scalamogna was driving and testified that they were
returning from “Presby’s ER” when the call came in from Patricia. Scalamogna Deposition,
Plaintiff’s Exhibit 1, (“Scalamogna Depo.”) pp. 95-96. Though the call was an emergency,
Scalamogna told both McCann and Patricia that she was not going to respond to the call.
Defendant’s CSMF ¶¶ 41 & 42.
Both McCann and Patricia wrote incident reports regarding the call from and dispatch to
the Marian Manor Nursing Home. Defendant’s CSMF ¶¶ 44 & 45. In his incident report,
McCann stated that while traveling on I-376 outbound, a call came in from Patricia and
Scalamogna said “I can’t do this call, I have an eye appointment.” Plaintiff’s Exhibit 5;
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Defendant’s CSMF ¶ 47. McCall also indicated that Patricia told them to respond to call
“ASAP.” Plaintiff’s Exhibit 5; Defendant’s CSMF ¶ 46. Patricia stated in her report that she
gave Scalamogna and McCann a trip out of Marian Manor at approximately 7:30 a.m., and as
she was giving McCann the information, she heard Scalamogna “yelling” that she was not doing
any trip because she had a doctor’s appointment and had to leave. Plaintiff’s Exhibit 5;
Defendant’s CSMF ¶ 48.
Jumba Sr. and Jumba Jr. made the decision to terminate Scalamogna based upon the
incident reports and the timing of the call from Marian Manor; without knowledge of
Scalamogna’s contention that her eyes were affecting her ability to drive the ambulance.
Defendant’s CSMF ¶¶ 50 & 58. On May 8, 2012, Scalamogna was terminated based upon the
following policy violations: (1) violation of Standard of Conduct 1.6 (Failure to follow
instructions or procedures) for refusing to respond to a call for an ambulance response to an
emergency; (2) violation of the Overtime Policy for refusing to do a trip while on duty; and (3)
violation of the Employee Dress and Uniform Policy for not being in proper uniform.
Defendant’s CSMF ¶¶ 51 & 52. Steel Valley did not replace Scalamogna, her duties were
redistributed among the other employees. Defendant’s CSMF ¶ 55.
III.
LEGAL STANDARD FOR SUMMARY JUDGMENT
Pursuant to Rule 56(c) of the Federal Rules of Civil Procedure, summary judgment shall
be granted when there are no genuine issues of material fact in dispute and the movant is entitled
to judgment as a matter of law. To support denial of summary judgment, an issue of fact in
dispute must be both genuine and material, i.e., one upon which a reasonable fact finder could
base a verdict for the non-moving party and one which is essential to establishing the claim.
Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986). When considering a motion for summary
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judgment, the court is not permitted to weigh the evidence or to make credibility determinations,
but is limited to deciding whether there are any disputed issues and, if there are, whether they are
both genuine and material. Id. The court’s consideration of the facts must be in the light most
favorable to the party opposing summary judgment and all reasonable inferences from the facts
must be drawn in favor of that party as well. Whiteland Woods, L.P. v. Township of West
Whiteland, 193 F.3d 177, 180 (3d Cir. 1999), Tigg Corp. v. Dow Corning Corp., 822 F.2d 358,
361 (3d Cir. 1987).
When the moving party has carried its burden under Rule 56(c), its opponent must do
more than simply show that there is some metaphysical doubt as to the material facts. See
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). In the language of
the Rule, the nonmoving party must come forward with “specific facts showing that there is a
genuine issue for trial.” FED. R. CIV. P 56(e). Further, the nonmoving party cannot rely on
unsupported assertions, conclusory allegations, or mere suspicions in attempting to survive a
summary judgment motion. Williams v. Borough of W. Chester, 891 F.2d 458, 460 (3d Cir.1989)
(citing Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986)). The non-moving party must respond
Aby pointing to sufficient cognizable evidence to create material issues of fact concerning every
element as to which the non-moving party will bear the burden of proof at trial.@ Simpson v. Kay
Jewelers, Div. Of Sterling, Inc., 142 F. 3d 639, 643 n. 3 (3d Cir. 1998), quoting Fuentes v.
Perskie, 32 F.3d 759, 762 n.1 (3d Cir. 1994).
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IV.
DISCUSSION
A.
Age Discrimination Under the ADEA and the PHRA
Scalamogna contends that her employment with Steel Valley was wrongfully terminated
based upon her gender and her age2. Under the ADEA, an employer is prohibited from
discharging any individual or otherwise discriminating against an individual with respect to
compensation, terms, conditions, or privileges of employment, because of such individual’s age.
29 U.S.C. § 623(a)(1). A plaintiff can sustain a claim of discrimination under the ADEA by
presenting either direct or circumstantial evidence of discrimination. See Duffy v. Magic Paper
Group, Inc., 265 F.3d 163, 167 (3d Cir. 2001). Because Scalamogna has not provided direct
evidence of discrimination, our inquiry is governed by the three-part framework established in
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-803, (1973) (the “McDonnell Douglas
analysis”). See Smith v. City of Allentown, 589 F.3d 684, 691 (3d Cir. 2009) (reaffirming the use
of the McDonnell Douglas analysis in ADEA cases involving indirect evidence).
Under the McDonnell Douglas analysis, once the employee establishes a prima facie case
of discrimination, the burden of production shifts to the employer to articulate a legitimate,
nondiscriminatory reason for the employer’s adverse employment decision. McDonnell Douglas
Corp. v. Green, 411 U.S. at 802. If the employer makes that showing, the burden of production
shifts once again to the employee to establish that the employer’s proffered justification for the
adverse action is pretextual. Tex. Dep’t of Comm. Affairs v. Burdine, 450 U.S. 248, 254-255
(1981). Throughout this burden-shifting exercise, the burden of persuasion remains on the
2
There is no need to differentiate between Scalamogna’s Federal discrimination claims and
PHRA claims because, for our purposes, the same analysis is used for each. See, e.g., Simpson v.
Kay Jewelers, 142 F.3d at 643-644 & n.4; Jones v. School District of Philadelphia, 198 F.3d
303, 410-411 (3d Cir. 1999); Fairfield Township Volunteer Fire Co. No. 1 v. Commonwealth,
609 A.2d 804, 805 (Pa. 1992).
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employee. Starceski v. Westinghouse Elec. Corp., 54 F.3d 1089, 1095 n.4 (3d Cir. 1995) (citing
Tex. Dep’t of Comm. Affairs v. Burdine, 450 U.S. at 253).
Scalamogna, therefore, bears the initial burden of establishing a prima facie case of
discrimination. Scheidemantle v. Slippery Rock Univ. State Sys. of Higher Educ., 470 F.3d 535,
539 (3d Cir. 2006); Atkinson v. LaFayette College, 460 F.3d 447, 454 (3d Cir. 2006). To
establish a prima facie case, Scalamogna must demonstrate that: (1) she is a member of the
protected class, i.e. at least 40 years of age; (2) she was qualified for the position; (3) she was
subject to an adverse employment action; and (4) that she was ultimately replaced by another
employee who was sufficiently younger to support an inference of discriminatory animus. Smith
v. City of Allentown, 589 F.3d at 689 (citing Potence v. Hazleton Area Sch. Dist., 357 F.3d 366,
370 (3d Cir. 2004). To establish a prima facie case at summary judgment, “the evidence must be
sufficient to convince a reasonable factfinder to find all of the elements of [the] prima facie
case.” Duffy v. Paper Magic Grp., 265 F.3d 163, 167 (3d Cir. 2001).
Steel Valley asserts that Scalamogna has failed to establish a prima facie case in this
instance because she admits that she was not replaced by another employee who was sufficiently
younger. In her response,3 makes no attempt to convince the Court that she has established a
prima facie case of age discrimination. Her only argument was that she was subjected to
disparaging remarks regarding her being “too old” to do her job by a co-worker. Such argument
does woefully little to establish a prima facie case.
3
It must be noted that Plaintiff’s brief in response consists of a five (5) page regurgitation of
some the facts from her counterstatement that she contends demonstrate that Steel Valley’s given
reasons for her termination were not legitimate and, in fact, were discriminatory. Moreover,
Scalamogna makes no legal argument in support of her position, and fails to cite to any authority
upon which she based her conclusions.
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Further, even though Scalamogna’s duties may have been redistributed to younger
employees, such redistribution of duties among current employees does not, without more,
constitute a “replacement” of a former employee. Michniewicz v. Metasource, LLC, 756
F.Supp.2d 657, 666 (E.D.Pa. 2010) (“A terminated employee is not replaced, however, when
another employee is assigned to perform the terminated employee’s duties in addition to other
duties, or when work is redistributed among other remaining employees already performing
related work.”); Millard v. CoreStates Fin. Corp. et al., 2001 U.S. Dist. LEXIS 15873 at *6
(E.D.Pa. 2001) (“a person is not ‘replaced’ for purpose of a prima facie age discrimination action
where duties are undertaken by a younger person or persons already employed by the
Defendant”) (quoting Solt v. Alpo Petfoods, Inc., 837 F. Supp. 681, 685 (E.D.Pa. 1993). See also
Martonik v. Donahoe, 2013 U.S. Dist. LEXIS 155665 at *22 (W.D. Pa. Sept. 19, 2013).
Scalamogna, therefore, has failed to establish a prima facie case of age discrimination, and
summary judgment on her claim under the ADEA shall be entered.
Even assuming that Scalamogna was able to establish a prima facie case, the result is the
same. The burden would shift to Steel Valley to offer a legitimate non-discriminatory reason for
terminating Brinkley. Keller v. Orix Credit Alliance, Inc., 130 F.3d 1101, 1108 (3d Cir. 1997);
Simpson v. Kay Jewelers, 142 F.3d at 644 n.5. This burden is “relatively light” and is satisfied if
the employer provides evidence, which, if true, would permit a conclusion that it took the
adverse employment action for a non-discriminatory reason. Tomasso v. Boeing Co., 445 F.3d
702, 706 (3d Cir. 2006) (quoting Fuentes v. Perskie, 32 F.3d 759, 763 (3d Cir. 1994)); see also
Lichtenstein v. Univ. of Pittsburgh Med. Ctr., 691 F.3d 294, 302 (3d Cir. 2012) (describing this
step as a “minimal burden”).
The Court finds that Steel Valley has met its burden. Steel Valley has produced evidence
that Scalamogna was terminated for violations of the company’s policies. Scalamogna was
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terminated based upon the following policy violations: (1) violation of Standard of Conduct 1.6
(Failure to follow instructions or procedures) for refusing to respond to a call for an ambulance
response to an emergency; (2) violation of the Overtime Policy for refusing to do a trip while on
duty; and (3) violation of the Employee Dress and Uniform Policy for not being in proper
uniform. Defendant’s CSMF ¶¶ 51 & 52. Further, there is evidence in the record that
Scalamogna was disciplined three (3) times for violation of Steel Valley’s Trip Sheet policy, and
that she was late for work twenty-five (25) times during her evaluation year. Defendant’s CSMF
¶¶ 16 & 28.
Scalamogna must show that Steel Valley’s articulated reasons for her termination are
merely a pretext for age discrimination. An employee may demonstrate that her employer’s
legitimate nondiscriminatory reason is pretextual by submitting evidence that allows a factfinder
to either 1) disbelieve or discredit the employer’s justification; or 2) believe discrimination was
more likely than not a “but for” cause of the adverse employment action. Abels v. Dish Network
Serv., LLC, 507 F. App’x 179, 183 (3d Cir. 2012) (citing Fuentes v. Perskie, 32 F.3d at 764). See
also Gross v. FBL Fin. Servs., 557 U.S. 167, 177-178 (2009). Evidence undermining an
employer’s proffered legitimate reasons must be sufficient to “support an inference that the
employer did not act for its stated reasons.” Sempier v. Johnson & Higgins, 45 F.3d 724, 731 (3d
Cir. 1995).
In order to discredit Steel Valley’s proffered justification under the first prong of Fuentes,
Plaintiff must present evidence demonstrating “such weaknesses, implausibilities,
inconsistencies, incoherencies (sic), or contradictions” in the proffered reasons “that a reasonable
factfinder could rationally find them unworthy of credence,” and ultimately infer that Garden
Ridge did not act for the asserted nondiscriminatory reasons. Fuentes v. Perskie, 32 F.3d at 765.
If Scalamogna’s evidence rebutting Steel Valley’s proffered reason permits a factfinder to
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conclude that such reason (or reasons) was either a “post hoc fabrication” or otherwise did not
actually prompt the employment action, then summary judgment is inappropriate. Fuentes v.
Perskie, 32 F.3d at 764.
Alternatively, Scalamogna must show that age-based discrimination was a “but-for”
cause of Steel Valley’s decision to terminate her. To meet this burden, Scalamogna “cannot
simply show that [Steel Valley’s] decision was wrong or mistaken.” Fuentes v. Perskie, 32 F.3d
at 765. The question is whether Steel Valley was motivated by a discriminatory animus, not
whether it was wise, shrewd, prudent, or competent. See Ezold v. Wolf, Block, Schorr & SolisCohen, 983 F.2d 509, 531, 533 (3d Cir. 1992); Villanueva v. Wellesley College, 930 F.2d 124,
131 (1st Cir.), cert. denied, 502 U.S. 861 (1991). See also Brewer v. Quaker State Oil Ref. Corp.,
72 F.3d 326, 332 (3d Cir. 1995) (“[A]n employer may have any reason or no reason for
discharging an employee so long as it is not a discriminatory reason.”).
Scalamogna can direct this Court to no evidence that Steel Valley’s articulated reasons
for her termination are merely a pretext for age discrimination. She admits that the she refused
to respond to the call to Marian Manor. Moreover, her only mention of age as an issue was some
offhand remarks made by McCann, a co-worker. In considering whether stray remarks, such as
the comment(s) made by McCann, are probative of discrimination, the Court of Appeals for the
Third Circuit has considered the following factors: “(1) the relationship of the speaker to the
employee and within the corporate hierarchy; (2) the temporal proximity of the statement to the
adverse employment decision; and (3) the purpose and content of the statement.” Parker v.
Verizon Pa., Inc., 309 Fed. Appx. 551, 558-559 (3d Cir. Pa. 2009)(quoting Ryder v.
Westinghouse Elec. Corp., 128 F.3d 128, 133 (3d Cir. 1997)); see also Keller v. Orix Credit
Alliance, Inc., 130 F.3d 1101, 1112 (3d Cir. 1997). “Stray remarks by non-decisionmakers or by
decisionmakers unrelated to the decision process are rarely given great weight, particularly if
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they were made temporally remote from the date of decision.” Fuentes v. Perskie, 32 F.3d at 767
(quoting Ezold v. Wolf, Block, Schorr & Solis-Cohen, 983 F.2d at 545).
There is no evidence as to when McCann made such statements, and the remarks were
not made in the context of an employment or personnel decision. Cf. Reeves v. Sanderson
Plumbing Prods., Inc., 530 U.S. 133, 151-152 (2000); Brewer v. Quaker State Motor Oil, Co., 72
F.3d 326, 333 (3d Cir. 1995). The Court finds that the above referenced statements are benign
and unrelated to the termination of Scalamogna’s employment, and therefore, carry virtually no
weight in proving a discriminatory age-based animus. See e.g. Keller v. Orix Credit Alliance,
Inc., 130 F.3d at 1112 (statement by decision maker “[]f you are getting too old for this job,
maybe you should go hire one or two young bankers” did not raise an inference of
discrimination); Pivirotto v. Innovative Sys., Inc., 191 F.3d at 359(general discriminatory
comment by someone involved in the decision making process which was unrelated to the
adverse action was insufficient to show pretext).
Scalamogna fails to make a showing of pretext as she is unable point to evidence in the
record which would allow a rationale factfinder to “believe that an invidious discriminatory
reason was more likely than not a motivating or determinative cause” of Steel Valley’s action,
Burton v. Teleflex, Inc., 707 F.3d 417, 427 (3d Cir. 2013), or “believe discrimination was more
likely than not a ‘but for’ cause of the adverse employment action.” Abels v. DISH Network
Serv., LLC, 507 F. App’x at 183; see also Simpson v. Kay Jewelers, Div. of Sterling, Inc., 142
F.3d 639, 644-45 (3d Cir. 1998) (the plaintiff must “point to evidence with sufficient probative
force that a factfinder could conclude by a preponderance of the evidence that age was a
motivating or determinative factor in the employment decision.”). Accordingly, the Court finds
that Scalamogna’s age discrimination claims under the ADEA and PHRA fail as a matter of law.
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B.
Gender Discrimination Under Title VII and the PHRA
The burden shifting analysis of McDonnell Douglas is also used to analyze Scalamogna’s
claims under Title VII. See Goosby v. Johnson & Johnson Med., Inc., 228 F.3d 313, 318 (3d Cir.
2000). To establish a prima facie case of gender discrimination nder Title VII and the PHRA,
Scalamogna must demonstrate that: (1) she is a member of a protected minority, (2) she is
qualified for the position in question, (3) she has suffered an adverse employment action despite
being qualified, and (4) the circumstances raise an inference of unlawful discrimination.
McDonnell Douglas Corp. v. Green, 411 U.S. at 802; Sarullo v. U.S. Postal Serv., 352 F.3d 789,
797 (3d Cir. 2003). Though there is a paucity of evidence that would raise an inference of
unlawful discrimination, the Court will assume in this instance that Scalamogna can show a
prima facie case of gender discrimination. The burden shifts to Steel Valley to offer a legitimate
non-discriminatory reason for her termination. As set forth above, the Court finds that Steel
Valley met its burden. Scalamogna, now, must show that Steel Valley’s articulated reasons for
her termination were merely a pretext for gender discrimination.
Scalamogna again points to remarks made by Valesko and McCann. The Court has
determined that McCann’s statements are inadequate to show that Steel Valley’s purported
reasons for her termination were pretextual. The Court finds that Valesko’s statements were not
only benign and unrelated to Scalamogna’s termination, but the remarks were also temporally
remote. Moreover, Scalamogna’s reliance on her complaint regarding the community sleeping
area and the Department of Labor’s investigation and award, are neither relevant nor adequate to
allow a factfinder to disbelieve or discredit the Steel Valley’s justification to terminate
Scalamogna.
Based upon the foregoing, Scalamogna fails to show that her termination was pretextual.
Summary judgment on Title VII and PHRA claims shall be granted.
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C.
Retaliation
Aside from one sentence in her brief4, Scalamogna made no attempt to respond to
Defendant’s argument that she failed to establish a prima facie case of retaliation. Because
Scalamogna has not expressly abandoned her retaliation claim, the Court will address the prima
facie issue. To establish a prima facie case of retaliation under the ADEA and/or Title VII,
Plaintiff “must show: (1) that she engaged in a protected employee activity; (2) that she was
subject to adverse action by the employer either subsequent to or contemporaneous with the
protected activity; and (3) that there is a causal connection between the protected activity and the
adverse action.” Fasold v. Justice, 409 F.3d 178, 188 (3d Cir. 2005). Although the causation
analysis is highly fact-based, and depends on the particular context in which the events occurred,
a plaintiff can generally establish a causal connection by showing that the temporal proximity
between the protected activity and the adverse action is “unusually suggestive,” or through a
combination of timing and other evidence of ongoing antagonism or retaliatory animus. Farrell
v. Planters Lifesavers Co., 206 F.3d 271, 280 (3d Cir. 2000). Importantly, “[t]hese are not the
exclusive ways to show causation, as the proffered evidence, looked at as a whole, may suffice to
raise the inference.” Id. (quoting Kachmar v. SunGard Data Sys., Inc., 109 F.3d 173, 177 (3d
Cir. 1997)).
Scalamogna has failed to produce any evidence suggesting a causal connection between
her alleged complaints of harassment and her termination. She has failed to establish a temporal
proximity between her alleged complaints and her termination. Absent temporal proximity, the
Third Circuit permits the use of “circumstantial evidence of a ‘pattern of antagonism’ following
4
Scalamogna stated in her brief: “These facts show that [Scalamogna] has established a proper
claim of sexual harassment and retaliation.” Scalamogna Brief, p. 3.
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the protected conduct” to raise an inference of causation. Kachmar v. SunGard Data Sys., Inc.,
109 F.3d at 177 (quoting Robinson v. Southeastern Pa. Transp. Auth., 982 F.2d 892, 895 (3d Cir.
1993)). A causal connection may be established, for example, when a plaintiff experiences a
“constant barrage of written and verbal warnings ... and disciplinary action, all of which occur[ ]
soon after plaintiff's [protected activity] and continue [ ] until his discharge.” Robinson v.
SEPTA, 982 F.2d 892, 895 (3d Cir. 1993). There is no such evidence in the record that tends to
show a pattern of antagonism. Summary judgment, therefore, shall be entered with regard to
Scalamogna’s retaliation claims as well.
V.
CONCLUSION
The Court finds that there are no material facts in dispute, Scalamogna is unable to show
that that Steel Valley violated her rights under the ADEA, Title VII or the PHRA. Accordingly,
Steel Valley’s motion for summary judgment shall be granted. An appropriate order will
follow.
s/ David Stewart Cercone
David Stewart Cercone
United States District Judge
cc:
Daniel W. Ernsberger, Esquire
Richard J. Antonelli, Esquire
Ashley Passero, Esquire
(Via CM/ECF Electronic Mail)
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