COLLINS et al v. KINDRED HOSPITALS EAST, LLC
Filing
48
OPINION granting 39 MOTION for Summary Judgment filed by KINDRED HOSPITALS EAST, LLC., as set forth more fully within. Signed by Chief Judge Joy Flowers Conti on 8/12/2016. (cal)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
DONNA COLLINS, MARY
NARCAVISH, DIANA REED, DIANNE
ROSE, TERRI WELCH,
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Plaintiffs,
v.
KINDRED HOSPITALS EAST, LLC,
ALSO KNOWN AS KINDRED
HOSPITAL HERITAGE VALLEY, A
DELAWARE CORPORATION
Defendants.
Civ. A. No. 14-17
OPINION
CONTI, Chief District Judge
I.
INTRODUCTION
Plaintiffs Donna Collins (“Collins”), Mary Narcavish (“Narcavish”), Diana Reed
(“Reed”), Dianne Rose (“Rose”), and Terri Welch (“Welch” and collectively with Collins,
Narcavish, Reed, and Rose “plaintiffs”) accuse their former employer, Kindred Hospitals East,
LLC, also known as Kindred Hospital Heritage Valley1
(“Kindred” or the “hospital”), of
discriminating against them in various ways in violation of the Pennsylvania Human Relations
Act, 43 PA. CONS. STAT. §§ 951-963 (the “PHRA”).
Collins, Narcavish, Reed, and Rose initiated this action on December 2, 2013, by filing a
complaint in the Court of Common Pleas of Beaver County. (ECF No. 1). Kindred removed the
case to this court on diversity grounds. (Id.). Plaintiffs amended their complaint on June 11,
1
Although plaintiffs refer to “defendants” in the caption, there is only one defendant with multiple names.
1
2014 to add Welch as a plaintiff. (ECF No. 22).
Presently before the court is Kindred’s motion for summary judgment with respect to all
claims by asserted by all plaintiffs. (ECF No. 39). Kindred also filed a brief in support of its
motion, (ECF No. 40), a concise statement of material facts, (ECF No. 41), an appendix, (ECF
No. 42), a reply brief, (ECF No. 45), and a supplemental appendix, (ECF No. 46). In response to
the motion, plaintiffs filed an opposition brief, an appendix, and a responsive statement of
material facts that responded to Kindred’s concise statement of material facts. (ECF Nos. 4344). The parties also jointly submitted a combined concise statement of material facts. (ECF
No. 47).
The matter is fully briefed and ripe for disposition. For the reasons that follow in this
memorandum opinion, Kindred’s motion will be granted in full and judgment will be entered
against all plaintiffs on all claims.
II.
FACTUAL BACKGROUND
All material facts set forth below are undisputed unless otherwise indicated. Additional
material facts may be discussed elsewhere in this memorandum opinion, in context. The parties’
combined concise statement of material facts (“CCSMF”) is docketed at ECF No. 47 and is cited
to that docket number. All reasonable inferences are drawn in favor of plaintiffs, the nonmoving
parties. Inferences based upon speculation or conjecture, however, do not create a material
factual dispute sufficient to defeat a motion for summary judgment. Robertson v. Allied Signal,
Inc., 914 F.2d 360, 382 n.12 (3d Cir. 1990).
A. Plaintiff Donna Collins
Collins, who is African-American and female, began working at Kindred in 2004 as a
2
licensed practical nurse.
(ECF No. 47 ¶¶ 4, 6).
On April 22, 2012, Harry Buntman
(“Buntman”), another Kindred employee at the time, told several other employees that he was
going to “write [Collins] up” for taking a break without clocking out. (Id. ¶ 8). Although
Buntman worked as a nursing supervisor occasionally, he was not Collins’s supervisor on this
particular date. (Id. ¶ 8). Later the same day, Buntman interrupted two of Collins’s breaks and
directed her to check on her patients. (Id. ¶ 9). In both instances, Collins believed that her
patients were being cared for by other personnel and that the situations did not warrant
interruption of her breaks. (Id. ¶ 10). Collins nevertheless ended her breaks early and checked
on her patients. (Id. ¶ 11). Buntman and Collins had a confrontation. Buntman accused Collins
of lying about being on break. (Id. ¶ 12). For the remainder of the day Buntman watched
Collins and asked her patients about the quality of the care they were receiving. (Id. ¶ 13).
Collins was not disciplined or counselled for the events that took place on April 22, 2012. (Id. ¶
14). Buntman did not engage in similar conduct after April 22, 2012. (Id. ¶ 15). Prior to that
date Collins had never made a complaint about Buntman. (Id. ¶ 16).
On another occasion, Amber Hodnick (“Hodnick”), a Kindred employee, referred to
Collins using a racial slur.2 (Id. ¶ 17). When Collins confronted her, Hodnick told her she was
just reciting a quote from a movie. (Id. ¶ 18). To Collins’s knowledge, Hodnick did not use the
racial slur again. Collins admits she did not report the incident. Collins, however, avers that she
did not report the incident because Hodnick was her supervisor and the comment was made in
the presence of many others. (Id. ¶ 19).
Collins testified that she witnessed Buntman assign two African-American aides
2
Throughout the Factual Background, unless a specific date or timeframe is given for specific incidents or conduct,
the record did not reflect a date or timeframe.
3
additional work when other aides were available. (Id. ¶ 20). Although Collins avers she told the
aides to report the conduct, neither Collins nor anyone else reported the incident. The two
African-American aides eventually quit their jobs. (Id. ¶ 21).
The record is somewhat ambiguous with respect to Collins’s current status at Kindred.
She continued to work there until February 2015. (Id. ¶ 24). The parties state in their CCSMF
that she voluntarily resigned at that time. (Id. ¶ 24). Collins, however, testified that she is still
technically on staff, but no longer assigned to any shifts because Kindred now has almost no
patients.3
(ECF No. 42-3 at 4-7 (Collins Depo. at 20:1-24:25)). Collins testified that she
attained a new job elsewhere. (Id.). Her new job is fulltime, includes benefits, and pays slightly
more per hour than she was making at Kindred. (Id.).
Collins suffered stress as a result of the above incidents at work. (ECF No. 47 ¶ 27). She
admitted that other factors outside of work contributed to her stress and that she continued to feel
stressed after starting her new job, but testified that her stress was reduced after Buntman was
fired from Kindred. (Id. ¶¶ 28, 30). With respect to treatment, Collins testified that she
discussed the stress with her primary care physician on several occasions, but declined
medication and never received counselling. (ECF No. 42-3 at 34-35 (Collins Depo. at 119:14120:3)).
B. Plaintiff Mary Narcavish
Narcavish, is a female and was fifty-three years old at the time she began working as a
supervisor at Kindred on November 25, 2002. (ECF No. 47 ¶¶ 31, 33). On December 2, 2011,
at the age of sixty-two, Narcavish was terminated. (Id. ¶ 32).
3
Collins avers in the CCSMF that she resigned, in part, because Kindred would sometimes incorrectly schedule her
off. (ECF No. 47 ¶ 24). The deposition testimony cited, however, does not support the suggestion that this
improper scheduling contributed to her resignation. (See ECF No. 44, Ex. 1 (Collins Depo. at 113:1-14:21)).
4
Narcavish witnessed Buntman make “off-color remarks”, generally regarding women, on
multiple occasions. (Id. ¶ 37). She spoke with Buntman about his comments and he changed his
behavior, at least in her presence. (Id. ¶ 39).
A night supervisor, Jeanie Shingleton (“Shingleton”), made a number of racially charged
comments about African-Americans, including using the “n-word” and referring to an AfricanAmerican patient as a “gorilla” and Kindred’s African-American CEO as a “little monkey.” (Id.
¶ 40). While she is not African-American, Narcavish found these comments offensive and told
Shingleton to stop. (Id.). She reported the comments to a member of management, Janie
Rosenberger (“Rosenberger”) and the CEO, Rodney Jones (“Jones”), who laughed and indicated
that he was not offended so she should not be either. (Id.). Jones nevertheless agreed that there
would be zero tolerance going forward; Shingleton, however, continued making the comments.
(Id.).
Narcavish avers that Rosenberger targeted other employees whom she did not like,
including attempting to get them to quit and criticizing them to their faces and talking about them
behind their backs. (Id. ¶¶ 42-43). Narcavish testified that Rosenberger eventually began
targeting her by criticizing her for making typographical errors in a report. (Id. ¶¶ 43-44).
Narcavish testified that she was removed as charge nurse, and assumes Rosenberger was behind
it, but did not know for sure. (ECF No. 44, Exhibit 2, (Narcavish Depo. at 17:4-17)). At
different times in her deposition, Narcavish testified in a contradictory manner. At one point she
testified that she did not know why she was fired. (ECF No. 44, Ex. 2, (Narcavish Depo. at
43:2)). At another point she testified that she was fired for discussing patient care with Kindred’s
medical director (ECF No. 42-4 at 23-24 (Narcavish Depo. at 145:24-46:8)).
5
During her employment at Kindred, Narcavish received a number of verbal and written
warnings for various kinds of misconduct, although she denied or explained each warning during
her deposition. (Id. ¶ 47). Despite these warnings, Rosenberger said that Narcavish was viewed
as a skilled clinical nurse. (Id. ¶ 48). Around September 2011, Narcavish was nominated for
and won the Western Pennsylvania Cameo for Caring Award. (Id. ¶ 49). Nominations for this
award are made by an employee’s peers, but the winner is chosen by the senior leaders at the
Kindred Heritage Valley facility. (Id. ¶ 50). An award dinner is held to honor the winner, which
Kindred always treated as not only a time to recognize the recipient, but also as a marketing
opportunity. (Id. ¶ 52). The parties dispute how many tickets Narcavish received for the event,
but she testified that Rosenberger gave two tickets that should have gone to Narcavish to other
employees, who typically would become drunk at the event. (Id. ¶ 53-57). In protest, Narcavish
did not attend the event. (Id.).
The parties agree that the relationship between Narcavish and Jones and Rosenberger
deteriorated following the award dinner, but do not agree on who was to blame. (Id. ¶¶ 53, 5859). Rosenberger claims to have begun receiving complaints from other employees about
Narcavish refusing to help out, reading the newspaper at the nurses’ desk, and using the
computer for personal use. (Id. ¶ 59).
Narcavish denies these allegations and testified that
following the award dinner Jones and Rosenberger either refused to speak to her or began calling
her into meetings to yell at her. (Id. ¶¶ 53, 59). Rosenberger and another member of Kindred
management, Amy Egan (“Egan”), called Narcavish into a meeting, which they describe as a
“coaching session” to discuss her recent issues. (Id. ¶ 60). Narcavish takes the position that the
true purpose of this meeting was to further criticize and berate her.
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(Id. ¶¶ 46, 53, 60).
Narcavish refused to go into the meeting without a witness. (Id. ¶¶ 46, 61-62). She continued to
refuse and was suspended. (Id. ¶¶ 46, 64).
On November 29, 2011, after her suspension, Narcavish met with Rosenberger and Egan
and was placed on a thirty-day performance improvement plan. That plan identified various
ways in which she was expected to improve her behavior, including demonstrating a more
positive leadership attitude. (Id. ¶ 65). Rosenberger testified that on November 30, 2011, and
December 1, 2011, Jones received complaints about Narcavish’s attitude, including one from the
medical director; Narcavish denies having a bad attitude. (Id. ¶ 66). According to Rosenberger,
Jones and Egan attempted to meet with Narcavish to discuss the complaints. (Id. ¶¶ 67-74).
Rosenberger attested that Narcavish again refused to meet without a witness present and that
Jones refused to allow Narcavish to have a witness and informed her she was not entitled to have
a witness present and that continuing to refuse to meet was insubordination and would result in
her termination. (Id.).
Narcavish continued to refuse to meet, and proceeded to pull out her
phone and threatened to call her attorney. (Id.). After she continued to refuse to meet, Jones
terminated her employment. (Id.). Narcavish’s version of these events is that the medical
director did not complain about her, but that she informed him about patient abuse issues that
had occurred the prior night. (Id. ¶ 46). She testified that she had previously been warned by
Jones and Rosenberger not to report issues to the medical director so he would not “harp” to
them about it. As a result, she alleges she was called into the meeting with Jones and Egan
during which Jones began screaming at her “out of control” and eventually fired her. (Id.).
Narcavish testified that Rosenberger made at least two derogatory comments regarding
her age, including saying “[y]ou’re too old for this or that. I don’t know why doctors love you
7
because you’re old.” (Id. ¶¶ 35, 76). Narcavish did not tell Rosenberger that these comments
offended her or report them to anyone else at Kindred. (Id. ¶ 77).
Narcavish suffered emotional distress as a result of the above events at Kindred. (Id. ¶
78). She has a long history of depression and anxiety. (Id. ¶ 79). Approximately a year and a
half after her termination, Narcavish saw a psychiatrist for three visits. (Id. ¶ 80). Following her
termination she looked for other employment, but was unsuccessful in obtaining another fulltime
job. (Id. ¶ 81). In 2013 she began receiving social security and has not sought employment
since that time. (Id. ¶ 82).
C. Plaintiff Diana Reed
Reed began working at Kindred in October 2006. (Id. ¶ 84). In 2010, she was promoted
to education/employee health nurse, which is a supervisory position. (Id. ¶¶ 85-86). Reed
contends that while employed at Kindred she received unwarranted discipline on the basis of her
sex. (Id. ¶ 89). Kindred takes the position that all discipline was issued as a result of violations
of hospital policy by Reed. (Id. ¶ 90). Reed argues that the discipline was unwarranted and
discriminatory because of her sex and in retaliation for her reporting incidents of sexual
harassment. (Id. ¶¶ 88-89). Reed admits that she committed multiple time card violations;
Rosenberger puts the number of missing time card punches at forty-two between January 21,
2011, and November 1, 2011. (Id. ¶¶ 91-92). On November 4, 2011, Reed received a written
warning for multiple missed punches in violation of Kindred’s timekeeping policy. (Id. ¶ 93).
Two other female employees, Cathy Coveny (“Coveny”) and Tracey Barker (“Barker”) had
missed punches, but had their time cards automatically corrected in lieu of discipline. (Id. ¶ 94).
Reed alleges that she “opposed discrimination” by reporting an alleged sexual affair
8
between two employees, complaining that Rosenberger did not keep employee information
private, and by reporting that a supervisor used the “n-word.” (Id. ¶ 96). In addition to
discrimination, Reed reported patient mistreatment. (Id. ¶ 97).
After a meeting with Rosenberger, Reed’s responsibilities at Kindred increased. (Id. ¶
101). The new responsibilities included adding educational materials to the bulletin board and
putting together a newsletter. She felt these activities were not her responsibility, although she
admitted having prepared the newsletter before. (Id. ¶¶ 103-104). On February 28, 2012, Reed
submitted a letter to Egan resigning as education/employee health nurse, but requested to remain
in an “as needed” position.
(Id. ¶ 105).
Reed resigned to begin employment at another
healthcare facility where she is currently earning more than she did while at Kindred. (Id. ¶
106). Reed testified that her daily work environment at Kindred caused her significant stress, but
she did not undergo any treatment for mental or emotional distress. (Id. ¶ 107).
D. Plaintiff Dianne Rose
Rose, a female, began working at Kindred on or about December 19, 2005. (Id. ¶ 108).
Rose alleges that Buntman made a number of sexually harassing comments. (Id. ¶ 111). In one
incident, Buntman and she were discussing a “sticky-note” when Buntman stated that he thought
the note said “Harry’s stiff.” (Id. ¶ 112). Rose testified that a supervisor was present for this
comment so she did not report it. (Id. ¶ 113). In another incident, Rose commented in front of
Buntman that her eyes were getting worse. Buntman asked if she had said her “ass was getting
worse,” and agreed that her “ass” was “just fine.” (Id. ¶ 114). Rose did not report this comment.
(Id. ¶ 115). Buntmant made a comment about a former coworker’s chest. (Id. ¶ 116). Rose also
did not report this comment. (Id. ¶ 117). Buntman made another comment stating that he
9
thought only “woman can go down,” which Rose interpreted as being a reference to oral sex.
(ECF No. 44, Ex. 4 (Rose Depo. at 64:3-21)). She claims that this comment was made in the
presence of Narcavish and she reported it to Narcavish. (Id.). Rose testified that she was treated
differently with respect to work schedules. (ECF No. 47 ¶ 118). She identified several male and
female employees who she alleges received more favorable work schedules. (Id. ¶ 119).
Narcavish witnessed Buntman make an inappropriate comment in the presence of Rose in
November 2011. (Id. ¶ 120). Rose believes that she was terminated based upon her reporting
this comment to Narcavish and her reporting of other instances of Buntman’s harassing conduct.
(Id. ¶ 121). Kindred takes the position that Rose was terminated for poor performance and
Rosenberger testified that Rose received several written warnings and performance improvement
plans, some for rendering poor patient care, during her time at Kindred. (Id. ¶¶ 122-34). She
admits to having received most of the warnings, but denies having done the underlying conduct
in several cases. (Id.). The final warning was issued January 24, 2012, and resulted in her
discharge.4 (Id. ¶ 133). Kindred said Rose refused to medicate a patient, an allegation she
denies. (Id. ¶¶ 134-38). On March 6, 2012, over a month after her termination, Rose called
Kindred’s compliance hotline for the first time to make a formal complaint of sexual harassment.
(Id. ¶ 140).
E. Plaintiff Terri Welch
Welch, who is female, was hired by Kindred as a licensed practical nurse in June 2004, at
the age of 51. (Id. ¶ 142). Kindred’s policy is that nurses are not allowed have their cell phones
while on duty and Welch testified that she was not allowed to use her cellphone during her shifts,
4
The exact date of Rose’s discharge is not clear from the record, but occurred sometime between January 24, 2012
and early February 2012.
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except for emergencies. (Id. ¶¶ 144-47). Welch testified that another female employee, under
the age of 40, was permitted to use her cellphone while working. (Id. ¶ 146). Welch similarly
testified that she was held to Kindred’s policy allowing nurses to eat only during designated
breaks while two other female nurses were permitted to eat outside of their designated breaks.
(Id. ¶¶ 148-50). She does not know their exact ages, but testified that one was in her forties or
early fifties and the other was in her forties. (ECF No. 42-8 at 8 (Welch Depo. at 24:2-14)).
Welch was held to Kindred’s policy requiring her to clock-in and out for lunch breaks while
other employees were not. (ECF No. 47 ¶¶ 151-52). Welch was not permitted to smoke on
breaks while two other employees in their forties or early fifties were so permitted. (Id. ¶¶ 15354). Welch testified to receiving unfavorable schedules and complained to Jones about it. (Id. ¶
155). Welch alleges that Buntman made one inappropriate comment to her stating that “I want
to wipe the lint off your butt” and asking if she wanted to see his vasectomy scar. (Id. ¶ 156).
Buntman also micromanaged her, assigned her patients that required walking greater distances,
and said she had anger issues. (Id. ¶ 156). Welch made a complaint about Buntman to
Kindred’s compliance hotline. (Id. ¶ 156).
On September 5, 2012, Welch wrote to Kindred indicating that she was quitting her
fulltime positon and requesting her status be changed to “PRN” or “as needed” so she could start
working a new nursing job elsewhere. (Id. ¶¶ 157-58). This request was evidently granted.
Welch’s PRN status was terminated on August 22, 2013, because she did not work at least one
shift per month which Kindred claims is policy. (Id. ¶¶ 159-60). Welch testified that no one
ever told her about the one shift per month requirement. (Id. ¶¶ 159-60). Welch claims to have
suffered stress and anxiety as a result of working at Kindred. (Id. ¶ 163).
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III.
SUMMARY JUDGMENT STANDARD
Summary judgment is appropriate if the record shows that there is no genuine dispute
with respect to any material fact and the movant is entitled to judgment as a matter of law. Fed.
R. Civ. P. 56(a). The mere existence of a factual dispute, however, will not necessarily defeat a
motion for summary judgment. Only a dispute over a material fact—that is, a fact that would
affect the outcome of the suit under the governing substantive law—will preclude the entry of
summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Even then, the
dispute over the material fact must be genuine, such that a reasonable jury could resolve it in the
nonmoving party's favor. Id. at 248–49.
In deciding a summary judgment motion, a court must view the facts in the light most
favorable to the nonmoving party and must draw all reasonable inferences, and resolve all
doubts, in favor of the nonmoving party. Liberty Lobby, 477 U.S. at 255; Wishkin v. Potter, 476
F.3d 180, 184 (3d Cir.2007); Woodside v. Sch. Dist. of Phila. Bd. of Educ., 248 F.3d 129, 130
(3d Cir.2001); Doe v. Cnty. of Centre, PA, 242 F.3d 437, 446 (3d Cir.2001); Heller v. Shaw
Indus., Inc., 167 F.3d 146, 151 (3d Cir.1999).
A court must not engage in credibility
determinations at the summary judgment stage. Simpson v. Kay Jewelers, Div. of Sterling, Inc.,
142 F.3d 639, 643 n. 3 (3d Cir.1998).
One of the principal purposes of summary judgment is to isolate and dispose of factually
unsupported claims or defenses. Celotex Corp. v. Catrett, 477 U.S. 317, 323–24 (1986). The
summary judgment inquiry asks whether there is a need for trial—“whether, in other words,
there are any genuine factual issues that properly can be resolved only by a finder of fact because
they may reasonably be resolved in favor of either party.” Liberty Lobby, 477 U.S. at 250. In
12
ruling on a motion for summary judgment, the court's function is not to weigh the evidence or to
determine the truth of the matter, but only to determine whether the evidence of record is such
that a reasonable jury could return a verdict for the nonmoving party. Reeves v. Sanderson
Plumbing Prods., Inc., 530 U.S. 133, 150–51 (2000) (citing decisions); Liberty Lobby, 477 U.S.
at 248–49.
The burden of showing that no genuine issue of material fact exists rests initially on the
party moving for summary judgment. Celotex, 477 U.S. at 323; Aman v. Cort Furniture Rental
Corp., 85 F.3d 1074, 1080 (3d Cir.1996). The moving party may satisfy its burden either by
producing evidence showing the absence of a genuine issue of material fact or by demonstrating
that there is an absence of evidence to support the nonmoving party's case. Marten v. Godwin,
499 F.3d 290, 295 (3d Cir.2007) (citing Celotex, 477 U.S. at 325). A defendant who moves for
summary judgment is not required to refute every essential element of the plaintiff's claim;
rather, the defendant must only point out the absence or insufficiency of plaintiff's evidence
offered in support of one or more those elements. Celotex, 477 U.S. at 322–23. Once the
movant meets that burden, the burden shifts to the nonmoving party to “set forth specific facts
showing that there is a genuine issue for trial” and to present sufficient evidence demonstrating
that there is indeed a genuine and material factual dispute for a jury to decide. Fed. R. Civ. P.
56(e); see Liberty Lobby, 477 U.S. at 247–48; Celotex, 477 U.S. at 323–25. If the evidence the
nonmovant produces is “merely colorable, or is not significantly probative,” the moving party is
entitled to judgment as a matter of law. Liberty Lobby, 477 U.S. at 249.
The nonmoving party must “do more than simply show that there is some metaphysical
doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,
13
586 (1986).
To survive summary judgment, the nonmoving party must “make a showing
sufficient to establish the existence of [every] element essential to that party's case, and on which
that party will bear the burden of proof at trial.” Celotex, 477 U.S. at 322. Furthermore, “[w]hen
opposing summary judgment, the non-movant may not rest upon mere allegations, but rather
must ‘identify those facts of record which would contradict the facts identified by the movant.’”
Corliss v. Varner, 247 F.App’x 353, 354 (3d Cir.2007) (quoting Port Auth. of N.Y. and N.J. v.
Affiliated FM Ins. Co., 311 F.3d 226, 233 (3d Cir.2002)).
IV.
DISCUSSION
Each of plaintiffs’ respective claims is brought pursuant to the PHRA. The court notes
that the amended complaint and plaintiffs’ other filings are not always entirely clear with respect
to what kinds of discrimination claims each plaintiff brings.
A. Plaintiff Donna Collins
Collins appears to bring two claims: (1) a discrimination claim for disparate treatment on
the basis of her race; and (2) a hostile work environment claim also based on her race.5 (See
ECF No. 43 at 2-5).
i. Race Discrimination Claim
Discrimination claims brought under the PHRA are treated the same as Title VII and
ADEA claims. See e.g., Atkinson v. LaFayette Coll., 460 F.3d 447, 454 n.6 (3d Cir. 2006).
Discrimination claims based upon circumstantial evidence are analyzed using the burden-shifting
framework developed by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S.
792 (1973). The McDonnell Douglas framework calls for a three-step, burden-shifting analysis.
5
Some of Collins’s briefing suggests her hostile work environment claim also has a sex component; however, she
did not adduce any evidence of discrimination on the basis of sex.
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The plaintiff has the initial burden to establish a prima facie case of discrimination. McDonnell
Douglas, 411 U.S. at 802. After the plaintiff establishes a prima facie case for discrimination, the
burden shifts to the defendant to “articulate some legitimate, nondiscriminatory reason” for the
adverse action. Id. For the defendant to carry this burden, the defendant must “clearly set forth”
a nondiscriminatory reason. Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 255 (1981).
If the defendant meets this burden, the burden shifts to the plaintiff to “prove by a preponderance
of the evidence that the legitimate reasons offered by the defendant were not its true reasons, but
were a pretext of discrimination.” Id. at 253 (citing McDonnell Douglas, 411 U.S. at 804).
Specifically, in order to establish a prima facie case, a plaintiff must prove that: (1) she is
a member of a protected class; (2) she was qualified for the position; (3) she suffered an adverse
employment action; and (4) the circumstances of the adverse employment action give rise to an
inference of unlawful discrimination. Jones v. School Dist. of Phila., 198 F.3d 403, 411-12 (3d
Cir. 1999).
If a plaintiff can establish a prima facie case, the defendant must articulate a legitimate,
nondiscriminatory reason for its action. The burden of production is light. “The employer need
not prove that the tendered reason actually motivated its behavior, as throughout this burdenshifting paradigm the ultimate burden of proving intentional discrimination always rests with the
plaintiff.” Fuentes v. Perskie, 32 F.3d 759, 763 (3d Cir. 1994) (citation in the original).
If the defendants meet their burden of production by showing a legitimate,
nondiscriminatory reason for the challenged action, the burden shifts to the plaintiff to
demonstrate that the defendants’ alleged reasons are a pretext for discrimination. Burdine, 450
U.S. at 253. For the plaintiff to meet this burden, the plaintiff must show “‘both that the reason
15
was false, and that discrimination was the real reason.’” Fuentes, 32 F.3d at 763 (quoting St.
Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 515 (1993)). To survive a motion for summary
judgment, a plaintiff must satisfy at least one of the two prongs formulated by the United States
Court of Appeals for the Third Circuit in Fuentes:
[T]he plaintiff must point to some evidence, direct or circumstantial, from which a
factfinder could reasonably either (1) disbelieve the [defendant’s] articulated
legitimate reasons; or (2) believe that an invidious discriminatory reason was more
likely than not a motivating or determinative cause of the employer’s action.
Id. at 764.
It is not disputed that Collins satisfied the first two steps of a prima facie case of
discrimination. As an African-American, she is a member of a protected class and there is no
contention that she was in any way unqualified for her job. Kindred, however, argues that
Collins did not suffer an adverse employment action, and even if she did, the circumstances of
the adverse action do not give rise to an inference of race discrimination. (ECF No. 45 at 3-4).
Collins points to two possible adverse employment actions. First, she was given an
undesirable work schedule and taken off shifts, which resulted in a financial loss since she was
paid on an hourly basis. (ECF No. 43 at 2-3). Second, Buntman’s disrupting of her shifts made
it difficult to perform her work. (Id.). An adverse employment action is that which is “serious
and tangible enough to alter an employee’s compensation, terms, conditions, or privileges of
employment.” Storey v. Burns Int'l Sec. Servs., 390 F.3d 760, 764 (3d Cir. 2004). However,
Title VII and the PHRA “do not provide relief for unpleasantness that may be encountered in the
work place. Rather [the statutes] provide a remedy only if discrimination seriously and tangibly
altered the employee’s ability to perform the job or impacted the employee’s job
benefits.” Walker v. Centocor Ortho Biotech, Inc., 558 Fed.App’x 216, 219 (3d Cir.
16
2014) (citing Storey, 390 F.3d at 764).
The actions taken by Buntman on April 22, 2012, do not rise to the level of an adverse
employment action. At worst, Buntman interrupted two of Collins’s breaks, threatened to write
her up, and watched her closely for the remainder of the day. (ECF No. 47 ¶¶ 8-13). Collins,
however, admits that she never received any discipline stemming from these events. (Id. ¶ 14).
She admits the events were limited to April 22, 2012, and never reoccurred. (Id. ¶¶ 15-16).
Collins admits she continued to work at Kindred for nearly three more years. (Id. ¶ 24). An
action can constitute an adverse employment action if it “substantially decreases one’s earning
potential or disrupts his working conditions.” Swain v. City of Vineland, 457 F.App’x 107, 110
(3d Cir. 2012) (citing Durham Life Ins. Co. v. Evans, 166 F.3d 139, 144 (3d Cir. 1999)). Given
Collins’s admissions and that the conduct did not affect her employment status, compensation,
benefits, or job responsibilities, the actions taken by Buntman on April 22, 2012, do not
constitute an adverse employment action.
On the other hand, the allegations that Collins was discriminatorily taken off of shifts
might constitute an adverse employment action if supported by the record. The court, however,
concurs with Kindred that they are not. The only reference to adverse scheduling is a brief
mention in Collins’s deposition testimony. (See ECF No. 44, Exhibit 1 (Collins Depo. at 113:114:21)). Collins testified only that “[t]he only way I can answer that is if you look at our
schedules and you can see when there was time when I was flexed out when I wasn’t supposed to
be flexed out. That’s the only way I can explain that, if I was flexed out off of a day or taken out
of an assignment.” (Id.). She goes on to say that Buntman did not do the scheduling and that she
did not complain about her schedule. (Id.). The Third Circuit of Appeals has commented that
17
similarly vague deposition testimony, standing alone, was insufficient to survive summary
judgment. See e.g., Smith v. Twp. of E. Greenwich, 344 F.App’x 740, 747 (3d Cir. 2009)
([Plaintiff’s] general assertion that ‘just about everyone’ had falsified reports without any
specifics as to the who, what, or when of such allegations” was insufficient to prove the
existence of comparators); see Clair v. Agusta Aero. Corp., 592 F.Supp.2d 812, 823 n.19 (E.D.
Pa. 2009) (“while [Plaintiff] testified generally at her deposition that [employer] yelled at her and
treated her differently, she did not offer specific examples or other evidence of such treatment.
At the summary judgment stage, such generalized allegations are deficient as a matter of law. . . .
This is so because in their absence, [Plaintiff] fails to meet her burden of pointing to the
existence of a genuine issue of material fact in the record.”) (citing Robinson v. Nat’l Med. Care
Inc., 897 F.Supp. 184, 187 (E.D. Pa. 1995) (where plaintiff could not “recall the specific
incidents”)). The record contains no actual schedules or other evidence to support Collins’s
claim. Absent more, Collins’s vague testimony does not create a material dispute of fact. The
testimony does not reference a single specific incident or provide any indication of how often she
was inappropriately scheduled off or how much money she lost as a result. In fact, it is only in
Collins’s briefs that she even explains that the scheduling issue may have cost her money. There
is no allegation that the scheduling was done by someone who Collins claims discriminated
against her because of her race. Even the amended complaint fails to mention the issue of
adverse scheduling. (See ECF No. 22 at 3-6). The court is constrained to conclude that no
reasonable jury could find the scheduling allegations constituted an adverse employment action
because they are not supported by the record.
Since there was no evidence of record of an adverse employment action, Collins failed to
18
make out a prima facie case of race discrimination relating to either the events of April 22, 2012,
or her allegations of unfair scheduling. Accordingly, Kindred’s motion for summary judgment
will be granted with respect to Collins’s race discrimination claim.
ii. Hostile Work Environment Claim
Title VII prohibits racial or sexual harassment that is “sufficiently severe or pervasive to
alter
the
conditions
of
[the
plaintiff’s]
employment
and
create
an
abusive
working environment.” Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 67 (1986); see
AMTRAK v. Morgan, 536 U.S. 101, 116 n. 10 (2002) (“Hostile work environment claims based
on racial harassment are reviewed under the same standards as those based on sexual
harassment.”). To succeed on a hostile work environment claim, the plaintiff must establish that:
1) the employee suffered intentional discrimination because of his or her protected status; 2) the
discrimination was severe or pervasive; 3) the discrimination detrimentally affected the plaintiff;
4) the discrimination would detrimentally affect a reasonable person in like circumstances; and
5) the existence of respondeat superior liability. Jensen v. Potter, 435 F.3d 444, 449 (3d Cir.
2006), overruled on other grounds by Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53
(2006). The first four elements establish a prima facie hostile work environment case, and the
fifth element establishes employer liability. Huston v. Procter & Gamble Paper Prods.
Corp., 568 F.3d 100, 104 (3d Cir. 2009). “When the hostile work environment is created by a
victim’s non-supervisory coworkers, the employer is not automatically liable.” Id. at 104 (citing
Kunin v. Sears Roebuck & Co., 175 F.3d 289, 293 (3d Cir. 1999)). Liability will only fall upon
the employer in such a situation if the employer: (1) failed to provide a reasonable avenue for
complaint; or (2) knew or should have known of the harassment and failed to make prompt and
19
appropriate remedial action. Id.
To determine whether an environment is hostile, a court must consider the totality of the
circumstances, including “the frequency of the discriminatory conduct; its severity; whether it is
physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably
interferes with an employee’s work performance.” Mandel v. M & Q Packaging Corp., 706 F.3d
157, 168 (3d Cir. 2013) (citing Harris v. Forklift Sys., Inc., 510 U.S. 17, 23 (1993) and Caver v.
City of Trenton, 420 F.3d 243, 262–63 (3d Cir. 2005)). To survive summary judgment, a
plaintiff must present some evidence that the workplace was permeated with discriminatory
intimidation, ridicule, or insult that was so severe or pervasive that it altered the conditions of
employment and created an abusive working environment. Nat'l R.R. Passenger Corp. v.
Morgan, 536 U.S. 101, 116 (2002); Abramson v. William Paterson Coll. of N.J., 260 F.3d 265,
278–79 (3d Cir. 2001) (citing Harris, 510 U.S. at 21).
The court concludes that Collins failed to adduce sufficient evidence that the
discriminatory conduct was severe or pervasive. Collins’s hostile work environment claim
appears to consist of three kinds of discriminatory conduct: (1) racist comments; (2) Buntman’s
actions towards her on April 22, 2012; and (3) the incident where Buntman assigned tasks to two
African-American aides who were already busy, even though there were white aides who were
currently not occupied. (ECF No. 43 at 3-4). Collins, however, only testified to one comment
where Hodnick referred to Collins using the “n-word,” but Hodnick told Collins she was quoting
a movie. (ECF No. 47 ¶ 7). While Collins attempts to use a comment testified to by another
plaintiff, there is nothing in the record indicating Collins was aware of it. Courts within the
Third Circuit have often found that one or two isolated comments is insufficient to establish a
20
hostile work environment. See Mufti v. Aarsand & Co., Inc., 667 F.Supp.2d 535, 545-50 (W.D.
Pa. 2009) (collecting decisions); see also Perry v. Harvey, 332 F.App’x 728, 731-33 (3d Cir.
2009) (upholding district court’s grant of summary judgment to employer where there was one
racist comment and a handful of administrative complaints such as being denied a leave request);
Woodard v. PHB Die Casting, 255 F.App’x 608, 608-09 (3d Cir. 2007) (upholding district
court’s grant of summary judgment to employer where over the course of three years a few
racially charged comments were made to the plaintiff and KKK related graffiti had been spraypainted on the bathroom wall); Morgon v. Valenti Mid-Atl. Mgmt, No. CIV.A. 01-134, 2001 WL
1735260, at *3 (E.D. Pa. Dec. 14, 2001) (granting summary judgment for employer where
plaintiff had been called the “n-word” once). In this case Collins could only testify to a single
comment. The only other aspects of her claim, each of the events of April 22, 2012, and the
incident involving the two aides, only occurred once.6 The court must conclude that a reasonable
jury could not find that these three incidents were severe or pervasive. Accordingly, Collins
failed to adduce sufficient evidence to support her hostile work environment claim and Kindred’s
summary judgment motion will be granted with respect to that claim.
B. Plaintiff Mary Narcavish
Although styled as one claim for “discrimination” in her amended complaint, Narcavish
essentially brings four claims: (1) age discrimination; (2) sex discrimination; (3) hostile work
environment; and (4) retaliation. (ECF No. 43 at 5-13).
i. Age Discrimination Claim
Courts analyze age discrimination claims under the McDonnell Douglas burden-shifting
6
These other events also fail to support a hostile work environment claim because they were not reported by Collins
and Collins admits Buntman was not her supervisor on the date the events occurred.
21
framework. Davis v. Pittsburgh Pub. Sch., 930 F.Supp.2d 570, 596-99 (W.D. Pa. 2013). In
order to recover for age discrimination, a plaintiff must show that her age was the but-for cause
of her termination. Gross v. FBL Fin. Serv., 557 U.S. 167, 174-78 (2009) (ADEA); see also
Davis, 930 F.Supp.2d at 596-99 (same rule applies to age discrimination claims brought under
the PHRA). To establish a prima facie case of age discrimination a plaintiff must show: (1) she
is age forty or older; (2) she suffered an adverse employment action; (3) she was qualified for the
position at issue; and (4) she was replaced by an “employee who was sufficiently younger to
support an inference of discriminatory animus.” Smith v. City of Allentown, 589 F.3d 684, 689
(3d Cir. 2009).
Narcavish made out a prima facie case of age discrimination. She is over age forty, she
suffered an adverse employment action when she was terminated, she was qualified for her
position, and she was replaced by Buntman who was in his mid-fifties while she was in her midsixties.7 (ECF No. 44, Ex. 2 (Narcavish Depo. at 138:2-142:19)). The burden then shifts to
Kindred to offer a legitimate, nondiscriminatory reason for her termination. Kindred takes the
position that Jones fired Narcavish because of a number of past complaints, building to the
meeting in his office where Narcavish was insubordinate. (ECF No. 42-5 at 2-4 (Rosenberger
Decl. ¶¶ 14-28)). This reason satisfies Kindred’s burden at the second step of the McDonnell
Douglas analysis.
Kindred argues that Narcavish fails her subsequent burden of showing that its proffered
legitimate, nondiscriminatory reasons were a pretext. The court agrees. As already discussed,
the United States Court of Appeals for the Third Circuit has developed a two-prong test that a
7
For an age discrimination claim, the issue is whether the individual who replaced the plaintiff is sufficiently
younger than the plaintiff, and can be satisfied even if the replacing individual is also older than 40. See e.g., Davis
v. Pittsburgh Pub. Sch., 930 F.Supp.2d 570, 600 (W.D. Pa. 2013).
22
plaintiff must meet to show pretext:
[T]o defeat summary judgment when the [employer] [articulates] legitimate nondiscriminatory reasons for its action, the plaintiff must point to some evidence, direct
or circumstantial, from which a factfinder could reasonably either (1) disbelieve the
employer’s articulated legitimate reasons; or (2) believe that an invidious
discriminatory reason was more likely than not a motivating or determinative cause
of the employer’s action.
Fuentes, 32 F.3d at 764; see Doe v. C.A.R.S. Prot. Plus, Inc., 527 F.3d 358, 370 (3d Cir. 2008)
(“Put another way, to avoid summary judgment the plaintff’s evidence rebutting the employer’s
proffered legitimate non-discriminatory reasons was either a post hoc fabrication or otherwise
did not actually motivate the employment action (that is, that the proffered reason is a pretext).”).
The two prongs of the Fuentes test are distinct. The court, where appropriate, will analyze both
prongs of the Fuentes test to determine whether sufficient evidence was presented by plaintiff to
defeat defendant’s motion for summary judgment.
To satisfy the first prong of the pretext analysis, “the non-moving plaintiff must
demonstrate . . . weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in
the
[defendant’s]
proffered
legitimate
reasons
for
its
actions
factfinder could rationally find them ‘unworthy of credence.’”
that
a
reasonable
Fuentes, 32 F.3d at
765 (quoting Ezold v. Wolf, Block, Schorr & Solis–Cohen, 983 F.2d 509, 531 (3d Cir. 1992)). A
plaintiff may not “‘simply show that the [defendant’s] decision was wrong or mistaken, since the
factual dispute at issue is whether discriminatory animus motivated the employer, not whether
the employer is wise, shrewd, prudent, or competent.’” Keller v. Orix Credit Alliance, Inc., 130
F.3d 1101, 1108–09 (3d Cir.1997) (quoting Fuentes, 32 F.3d at 765).
A plaintiff need not
necessarily, however, produce additional evidence beyond that required by the prima facie case.
Fuentes, 32 F.3d at 764.
23
With regard to the first prong from Fuentes, Narcavish makes no attempt to refute the
suggestion that she was fired for insubordination in Jones’s office, and even admits having done
the behavior that Jones considered insubordinate. In fact, it is not entirely clear Narcavish even
testified that she believed her age was the reason for her termination. (See id. at 138:13-18). At
other times in her deposition, Narcavish testified that she did not know why she was fired (Id. at
43:2), and that she was fired for discussing patient care with Kindred’s medical director (Id. at
145:24-46:8), something which would not be a violation of the PHRA. The fact that she was
nominated for and awarded what she herself describes as “basically nurse of the year” award
three months prior to her termination further belies her allegations of age discrimination. She
admits her relationship with Jones and Rosenberger deteriorated immediately following the
kerfuffle over the number of tickets she would receive and her subsequent refusal to attend the
dinner (ECF No. 47 ¶¶ 53, 58-59), suggesting motivations that had nothing to do with her age or
sex. Narcavish failed to demonstrate that a factfinder could reasonably disbelieve Kindred’s
articulated legitimate reasons.
The second Fuentes prong permits a plaintiff to survive summary judgment if she can
demonstrate, through evidence of record, that “discrimination was more likely than not a
motivating or determinative cause of the adverse employment action.” Fuentes, 32 F.3d at 762.
The kinds of evidence relied upon by the court of appeals under this prong of the Fuentes
analysis are: 1) whether the defendant previously discriminated against the plaintiff; 2) whether
the defendant has discriminated against other persons within the plaintiff’s protected class or
within another protected class; and 3) whether the defendant has treated more favorably similarly
situated persons not within the protected class. Simpson, 142 F.3d at 644-45.
24
With regard to the second prong, there is no evidence of (1) previous age discrimination
against Narcavish; (2) age discrimination against other persons by management; or (3) anyone
similarly situated who was treated more favorably than Narcavish. Besides being replaced by
Buntman who was younger (although still in his fifties), the only other evidence of animus on the
basis of age is one comment by Rosenberger where she told Narcavish “[y]ou’re too old for this
or that. I don’t know why doctors love you because you’re old.” (ECF No. 47 ¶¶ 35, 76); (see
also ECF No. 44, Ex. 2 (Narcavish Depo. at 141:24-142:12)). Rosenberger, however, was not
the person who terminated Narcavish and no timeframe was adduced for Rosenberger’s
comment. See Parker v. Verizon Pa. Inc., 309 F.App’x 551, 558-59 (3d Cir. 2009) (“Stray
remarks by non-decisionmakers or by decisionmakers unrelated to the decision process are rarely
given great weight, particularly if they were made temporally remote from the date of the
decision.”) (quoting Fuentes, 32 F.3d at 767).
Narcavish failed to satisfy either prong of the Fuentes test and based on the record no
reasonable jury could find Kindred’s proffered reasons for her termination were a pretext for age
discrimination. Kindred’s summary judgment motion must be granted with respect to her age
discrimination claim.
ii. Sex Discrimination Claim
Narcavish failed to adduce evidence sufficient to show that her termination was the result
of sex discrimination. She is a member of a protected class in that she is female, she suffered an
adverse employment action, she was qualified for the positon, and she was replaced by Buntman,
a man. There, however, is nothing in the record to suggest the reasons given for her termination
were a pretext for firing her because of her sex.
25
For similar reasons set forth above for
Narcavish’s age discrimination claim, she cannot satisfy either prong of Fuentes. The only
evidence she points to are off-color comments made by Buntman relating to woman which are
not attributable to management. (ECF No. 43 at 7). Narcavish utterly fails to tie these comments
to the decision to fire her. Buntman was not a decision maker and was not present when Jones
terminated her. Without any evidence tying Buntman’s off-color comments to Narcavish’s
termination, she cannot make out pretext and no reasonable jury could render a verdict in her
favor on this claim. Kindred’s summary judgment motion must be granted with respect to
Narcavish’s sex discrimination claim.
iii. Hostile Work Environment Claim
The court previously discussed the standard for hostile work environment claims. See
supra at 19-20. Narcavish’s hostile work environment claim appears to be based upon the one
comment about her age, the off-color comments by Buntman relating to females, and a number
of racially charged comments witnessed and reported by Narcavish. (ECF No. 43 at 7-8).
Because Narcavish is not African-American the comments that were allegedly racist towards that
race cannot support her hostile work environment claim. See e.g., Mandel, 706 F.3d at 167 (“To
succeed on a hostile work environment claim, the plaintiff must establish that 1) the employee
suffered intentional discrimination because of his/her sex [race or age] . . .”) (emphasis added).
Taking away the racist comments, all that is left is the one comment about Narcavish’s age and
Buntman’s off-color comments about females, of which Narcavish only testified to one or two
specific examples. As already discussed, “severe or pervasive” is a relatively high standard and
one that is not satisfied by a few isolated remarks. See supra at 20-21, 31-32. The court is
constrained to conclude no reasonable jury could find that such conduct was severe or pervasive
26
and must grant Kindred’s summary judgment motion with respect to Narcavish’s hostile work
environment claim.
iv. Retaliation Claim
In order to establish a prima facie case of retaliation, a plaintiff must demonstrate: (1) she
engaged in a protected activity; (2) her employer took adverse action after or contemporaneously
with her protected activity; and (3) a causal link exists between her protected activity and the
averse action. Abramson, 260 F.3d at 286. If the plaintiff can establish this prima facie case, the
McDonnell Douglas burden-shifting applies. Moore v. City of Phila., 461 F.3d 331, 342 (3d Cir.
2006).
With respect to the causal connection element of the prima facie case, the court may
consider “a broad array of evidence.” Farrell v. Planters Lifesavers Co., 206 F.3d 271, 284 (3d
Cir. 2000). Unusually suggestive temporal proximity between protected activity and adverse
action may be sufficient on its own to create an inference of causality. Id. at 280; see Clark
Cnty. Sch. Dist. v. Breeden, 532 U.S. 268, 273–74 (2001). However, “the mere fact that adverse
[] action occurs after a complaint will ordinarily be insufficient to satisfy the plaintiff’s burden of
demonstrating a causal link between the two events.” Robinson v. City of Pittsburgh, 120 F.3d
1286, 1302 (3d Cir. 1997), abrogated on other grounds, Burlington N. & Santa Fe Ry. Co. v.
White, 548 U.S. 53, 61 (2006). If the temporal proximity is not unusually suggestive, a court
may consider whether the record evidence, as a whole, is sufficient to raise an inference of
causation, and in doing so may consider evidence of ongoing antagonism or retaliatory animus,
inconsistencies in the defendant’s articulated reasons for taking the adverse action, or any other
evidence in the record sufficient to support the inference of retaliatory animus. Farrell, 206 F.3d
27
at 280.
Narcavish can demonstrate the first two elements of a prima facie case of retaliation. She
suffered an adverse action when she was terminated and she engaged in protected activity when
she reported racist comments to Jones and other members of management. Her brief does not,
however, contain an argument about the causal connection element. (See ECF No. 43 at 11-13).
The court cannot find any evidence in the record of retaliatory animus. To the extent Narcavish
is arguing that there was unusually close temporal proximity she did not provide specifics
regarding the timing or an explanation for why it was unusually close. Accordingly, on the
record presented no reasonable jury could find that Narcavish established a prima facie case of
retaliation.
Even if Narcavish established a prima facie case, which she did not, as already discussed
in detail, she did not adduce evidence that Kindred’s proffered reasons for terminating her were a
pretext. The Supreme Court has recently held that a plaintiff making a retaliation claim under
Title VII “must establish that his or her protected activity was a but-for cause of the alleged
adverse action by the employer.” University of Tex. Sw. Med. Ctr. v. Nassar, 133 S.Ct. 2517,
2534 (2013). For similar reasons that she did not adduce sufficient evidence of pretext for her
age discrimination claim, she did not adduce sufficient evidence of pretext with respect to this
claim. She does not deny the behavior for which Kindred claims to have fired her, and testified
that she was fired for discussing patient abuses with the medical director. Her belief that her
termination was motivated by retaliatory animus is not enough to survive a summary judgment
motion. Robertson, 914 F.2d at 382 n.12. Because Narcavish did not adduce sufficient evidence
for a reasonable jury to find there was a causal connection or pretext, Kindred’s motion for
28
summary judgment must be granted with respect to her retaliation claim.
C. Plaintiff Diana Reed
Reed brings claims for sex discrimination, hostile work environment, and retaliation.
(ECF No. 43 at 14).
i. Sex Discrimination Claim
For her prima facie case, Reed can satisfy the first two elements in that as a female she is
a member of a protected class and she was qualified for her position. She did not, however,
satisfy the third and fourth prongs. Reed, who voluntarily resigned to take a higher paying job 8,
avers that the adverse employment action she suffered was “she began receiving additional job
responsibilities that were not part of her job as employee health and education director, causing a
significant disruption in Reed’s working conditions.” (Id. at 15). An adverse employment action
is an action which results in “a significant change in employment status, such as hiring, firing,
failing to promote, reassignment with significantly different responsibilities, or a decision
causing a significant change in benefits.” Pagan v. Gonzalez, 430 F.App’x 170, 172 (3d Cir.
2011) (citing Durham, 166 F.3d at 152–53) (emphasis added). Here, Reed does not allege she
was reassigned and the additional job duties she received can hardly be described as
“significantly different.” She testified to having to add educational materials to the bulletin
board and put together a newsletter. (ECF No. 47 ¶¶ 103-104). She admits to having prepared
the newsletter on prior occasions. (Id.). No reasonable jury could find that the addition of these
two responsibilities constituted an adverse action. She, therefore, cannot make out the third
element of her prima facie case.
8
It does not appear from her brief that Reed is arguing that she suffered a constructive discharge. However, to the
extent she is, that claim is belied both by her testimony that she left for a higher paying job and her request to remain
employed at Kindred on an “as needed” basis.
29
Reed failed to make out the fourth element. The alleged inference of possible sex
discrimination is Reed’s testimony to unspecified comments by Buntman.
As discussed
elsewhere in this opinion, unspecified incidents are not sufficient to survive summary judgment.
See supra at 20-21 31-32. Reed attempts to provide two comparators who she alleges were
treated more favorably with regard to correcting time card violations. (Id. ¶ 94). Both alleged
comparators, however, are also female (Id. ¶ 94), and therefore do not support Reed’s claim of
sex discrimination.
See Carver v. D.C.I. Chippewa Clinic, No. 2:05 CV 0122, 2006 WL
2927628, at *7 (W.D. Pa. Oct. 12, 2006) (“Carver cannot claim the other two women who rode
the scooters were comparators because she and these women occupy the same protected class.”).
Because no reasonable jury could find Reed satisfied either the third or fourth element of her
prima facie case, the court must grant Kindred’s motion for summary judgment with respect to
her sex discrimination claim.
ii. Hostile Work Environment Claim
Reed does not fully lay out her hostile work environment except to say that she faced
harassment and was greatly impacted by it. (See ECF 43 at 15-16). Reed testified to only two
specific comments made by Buntman: (1) he commented on her breasts and may have joked
about grabbing her pants string; and (2) he mentioned having erectile dysfunction and being
unable to perform with his wife. (ECF 44, Ex. 3 (Reed Depo. at 132:13-135:10)). As discussed
with respect to the hostile work environment claims brought by Collins, Narcavish, and Rose, a
handful of isolated comments standing alone generally falls below the standard of severe or
pervasive. See supra at 20-21. 31-32. The court concludes that Reed failed to adduce sufficient
evidence for a reasonable jury to render a verdict in her favor on her hostile work environment
30
claim and must grant Kindred’s motion for summary judgment with respect to that claim.
iii. Retaliation Claim
As already discussed with respect to her sex discrimination claim, Reed did not show that
she suffered an adverse action. The standard for adverse action on a retaliation claim is slightly
different than a discrimination claim. In order for an employer’s action to satisfy the second
prong of a prima facie case of retaliation, the plaintiff “must show that a reasonable employee
would have found the challenged action materially adverse, which in this context means it well
might have dissuaded a reasonable worker from making or supporting a charge of
discrimination.” Daniels v. School Dist. of Phila., 776 F.3d 181, 195-96 (3d Cir. 2015) (quoting
Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006). Even under that lesser
standard, no reasonable jury could find that the additional job duties described above and
unspecified instances of other employees “glaring” at her could be “materially adverse.” The
lack of adverse action similarly dooms her retaliation claim and summary judgment must also be
granted on this claim.
D. Plaintiff Dianne Rose
Rose appears to bring claims for hostile work environment, sex discrimination, and
retaliation. (ECF No. 43 at 19-22).
i. Hostile Work Environment
The court previously described the elements of a hostile work environment claim. Rose’s
hostile work environment claim is based upon sexist comments made by Buntman. (Id. at 19).
Rose’s amended complaint, as well as her testimony, describes four specific comments. See
supra at 9-10. While she alleges Buntman made many other comments, she did not testify about
31
any other specific comments. As noted above, general claims that there were a lot of incidents
are insufficient where the plaintiff did not testify about the specifics of the general claim. Supra
at 18. This is true even where the plaintiff testified to several specific examples and went on to
testify that similar conduct occurred a lot more often, but without additional specifics. 9 See e.g.,
Dreshman v. Henry Clay Villa, 733 F.Supp.2d 597, 613 (W.D. Pa. 2010) (“While Plaintiff
testified that he was subject to sexual harassment half of the time that he worked, when
questioned about his estimate at his deposition, he only identified a number of discrete events or
incidents of harassing conduct [;] thus, the Court will not credit Plaintiff’s unsubstantiated
estimation.”); Stephenson v. City of Phila., No. CIV.A. 05-1550, 2006 WL 1804570, at *11
(E.D. Pa. June 28, 2006), aff’d, 293 F.App’x 123 (3d Cir. 2008) (not crediting plaintiff’s
“unsubstantiated allegations that discriminatory treatment occurred ‘all the time,’” and analyzing
only the specific examples provided). Among the four comments, Buntman described a former
coworker’s chest and made ambiguous references to oral sex and his own genitals. (ECF No 47
¶¶ 112-16); (ECF No. 44, Ex. 4 (Rose Depo. at 64:3-21)).
The only comment that was
specifically directed at Rose was that he agreed there was nothing wrong with her “ass.” (ECF
No 47 ¶¶ 112-16). While offensive, the court concludes that a reasonable jury could not find
these four comments to be severe or pervasive. See Grassmyer v. Shred-It USA, Inc., 392
F.App’x 18, 25, 30 (3d Cir. 2010) (affirming that the plaintiff’s allegations that her manager
regularly made comments about the size of his genitalia and about the details of his sexual
relationships and referred to women as “b---hes” were not “so severe or pervasive as to support a
hostile work environment claim”); Bumbarger v. New Enter. Stone & Lime Co., No. CV 3:149
Additionally, Rose admits she did not report several of the specific comments to which she testified. Even if the
court were to credit her general claim that Buntman made other comments frequently, it is not at all clear from the
record to what extent she reported these other unspecified comments.
32
137, 2016 WL 1069099, at *15-20 (W.D. Pa. Mar. 17, 2016) (granting summary judgment for
the defendant where the supervisor, among other things, touched the plaintiff on one occasion,
“mooned” the plaintiff on one occasion, and called the plaintiff a “b---h” and a “c--t” several
times each). In short, Buntman’s conduct towards Rose falls short of the conduct other courts
have found not to be severe or pervasive. Accordingly, Rose failed to adduce sufficient evidence
for a reasonable jury to render a verdict in her favor on her hostile work environment claim and
Kindred’s motion for summary judgment must be granted with respect to that claim.
ii. Sex Discrimination
Rose satisfied the first three elements of a prima facie case for her sex discrimination
claim in that she is a member of a protected class as a female, she was qualified for her position,
and she suffered an adverse employment action when she was terminated.10 Even assuming that
Buntman’s off-color comments give rise to an inference of sex discrimination and thus satisfy
her prima facie case, the court agrees with Kindred that Rose failed to adduce evidence of
pretext.
Kindred’s proffered legitimate nondiscriminatory reason for terminating Rose is the last
of her multiple performance improvement plans and written warnings which stemmed from an
incident where she allegedly refused to medicate a patient. (ECF No. 47 ¶¶ 134-38); (ECF No.
42-7 at 42-43 (Performance Improvement Form)). The court previously described the two-prong
test from Fuentes used in analyzing pretext. See supra at 23-25 To reiterate, the Fuentes test
requires a plaintiff to show that a factfinder could reasonably either (1) disbelieve the employer’s
10
Rose appears to argue that her termination is the only adverse employment action she suffered. (See ECF No. 43
at 20). To the extent she argues that her allegations that she was treated differently with regard to scheduling also
constitute an adverse employment action, those allegations are unsupported by the record in that she did not testify
about any specifics and no actual schedules or other evidence was adduced, and she claims that two men and four
women were treated better with respect to scheduling. (ECF No. 42-7 at 27-28 (Rose Depo. 83:11-25, 95:1-9)).
33
articulated legitimate reasons; or (2) believe that an invidious discriminatory reason was more
likely than not a motivating or determinative cause of the employer’s action. Fuentes, 32 F.3d at
764.
Rose cannot satisfy either Fuentes prong.
As with most of her other performance
improvement plans and written warnings, Rose denies the precipitating misconduct for the final
warning that Kindred avers led to her termination. That, however, is not enough to show pretext.
The existence of the performance improvement plan is undeniable, as is the fact that it is signed
by Egan, a female and not the person Rose alleges discriminated against her. In cases such as
this, the issue is not whether Rose in fact failed to medicate her patient, but whether there is any
evidence Kindred did not believe she failed to do so when it terminated her. Watson v. SE Penn.
Transp. Auth., 207 F.3d 207, 222 (3d Cir. 2000) (“The employment discrimination laws involved
here permit an employer to take an adverse employment action for a reason that is not ‘true’ in
the sense that it is not objectively correct.” The issue is whether the employer sincerely believes
the employee engaged in the misconduct or is motivated by discriminatory animus); Riley v. St.
Mary Med. Ctr., No. CV 13-7205, 2015 WL 5818515, at *12 (E.D. Pa. Oct. 6, 2015). Because
Rose failed to make any showing that Kindred did not sincerely believe she failed to medicate
her patient, she cannot satisfy the first prong of Fuentes. Rose similarly cannot satisfy the
second prong from Fuentes. The only evidence of record that could even arguably show an
“invidious discriminatory reason” for her termination is the off-color comments made by
Buntman. As already discussed, “[s]tray remarks by non-decisionmakers or by decisionmakers
unrelated to the decision process are rarely given great weight, particularly if they were made
temporally remote from the date of the decision.” Parker, 309 F.App’x at 558-59 (quoting
34
Fuentes, 32 F.3d at 767). Because Rose failed to adduce sufficient evidence of pretext for a jury
to find in her favor on this claim, Kindred’s motion for summary judgment must be granted with
respect to Rose’s sex discrimination claim.
iii. Retaliation
Rose established the first two elements of a prima facie case of retaliation. She engaged
in a protected activity when she reported the one comment to Narcavish in November 2011 and
she suffered an adverse action when she was terminated.11 Rose’s only argument regarding the
third prong, a causal link between the adverse action and the protected activity, however, seems
to be that there was close temporal proximity, of roughly four months. “[A]n undeniably short
period of time” between the protected activity and adverse action, standing alone, is not
necessarily probative of retaliatory animus.
See Kahan v. Slippery Rock Univ. of Pa., 50
F.Supp.3d 667, 702-03 (W.D. Pa. 2014), reconsideration denied sub nom., 2014 WL 7015735
(W.D. Pa. Dec. 11, 2014) (three weeks between the two events). “The majority of the case law
supports a conclusion that [a one-month gap] is not unusually suggestive.” Thomas-Taylor v.
City of Pittsburgh, No. CIV.A. 13-164, 2014 WL 4079944, at *8 (W.D. Pa. Aug. 18, 2014),
aff’d, 605 F.App’x 95 (3d Cir. 2015); see Yu v. U.S. Dep’t of Veterans Affairs, 528 F.App’x 181,
185 (3d Cir. 2013) (finding that “unusually suggestive” means “within a few days but no longer
than a month”). Under the relevant case law, the four-month period between reporting to
Narcavish and Rose’s termination is not unusually suggestive of retaliatory animus. This is
especially true given Rose’s termination closely followed her receipt of the performance
improvement plan for refusing to medicate her patient. Absent further evidence the court is
11
Rose claims there were other instances where she reported or complained of Buntman’s conduct; however, she did
not testify to specific examples besides reporting the November 2011 comment to Narcavish.
35
constrained to conclude that Rose did not establish a prima facie case of retaliation.
Even if the court were to find that Rose satisfied the third element of the prima facie case,
which it does not, as already discussed with respect to Rose’s other claims, she did not adduce
sufficient evidence for a reasonable jury to find that Kindred’s proffered reason for firing her
was a pretext. The court previously described at length the two-prong test from Fuentes used in
analyzing pretext. See supra at 23-25. To reiterate, the Fuentes test requires a plaintiff to show
that a factfinder could reasonably either (1) disbelieve the employer’s articulated legitimate
reasons; or (2) believe that an invidious discriminatory reason was more likely than not a
motivating or determinative cause of the employer’s action. Fuentes, 32 F.3d at 764. The fact
that Rose denies refusing to medicate her patient is insufficient. Watson, 207 F.3d at 222; Riley,
2015 WL 5818515, at *12. There is no more evidence that her termination was really motivated
by retaliatory animus than there is evidence it was motivated by discriminatory animus. On the
record presented, no reasonable jury could find a causal connection between her protected
conduct and the adverse action or that there was pretext; Kindred’s summary judgment motion
must be granted with respect to her retaliation claim.
E. Plaintiff Terri Welch
Although the section of plaintiffs’ brief about Welch’s claim is not clear, Welch appears
to bring an age discrimination claim and sex discrimination claim. (ECF No. 43 at 22).
i. Age Discrimination Claim
To establish a prima facie case of age discrimination a plaintiff must show: (1) she is age
forty or older; (2) she suffered an adverse employment action; (3) she was qualified for the
position at issue; and (4) she was replaced by an “employee who was sufficiently younger to
36
support an inference of discriminatory animus.” Smith, 589 F.3d at 689. Welch satisfied the first
element and points to her August 22, 2013 termination from PRN status as the adverse
employment action she suffered. Although she attempts to satisfy the fourth element using
alleged comparators who were not held to Kindred’s policies regarding lunch breaks and use of
cell phones on duty, these actions are not what Welch claims are the adverse action in her
situation.12 (See ECF No. 43 at 22-25). Welch did not allege that she was replaced on the PRN
list by an employee younger than she is, only that younger employees were permitted to use their
phones and eat lunch without clocking-out. Furthermore, she testified that she did not know the
ages of her alleged comparators, but estimated them generally as forties or early fifties. (ECF
No. 42-8 at 8 (Welch Depo. at 24:2-14)). It is not clear from the record how old Welch was at
the time the alleged comparators were permitted to use their cellphones and not clock-out, but
Welch’s age while employed at Kindred ranged from 51 to about 60 years old. Therefore, it is
possible the alleged comparators were significantly younger than Welch and possible that they
were roughly the same age.
Even if the court were to assume Welch satisfied the fourth element of the prima facie
case, she did not adduce sufficient evidence to demonstrate pretext. The court previously
described the two-prong test from Fuentes used in analyzing pretext. See supra at 23-25. To
reiterate, the Fuentes test requires a plaintiff to show that a factfinder could reasonably either (1)
disbelieve the employer’s articulated legitimate reasons; or (2) believe that an invidious
discriminatory reason was more likely than not a motivating or determinative cause of the
12
Even if she were, actions such as not allowing her to eat lunch without clocking-out or not allowing her to use her
cell phone on duty, without more, do not rise to the a level sufficient for a reasonable jury to find they are adverse
actions. An adverse employment action is that which is “serious and tangible enough to alter an employee’s
compensation, terms, conditions, or privileges of employment.” Storey, 390 F.3d at 764.
37
employer’s action. Fuentes, 32 F.3d at 764. Kindred’s proffered reason for terminating her as
PRN status was her failure to work at least one shift every month, in violation of the hospital’s
policy. (ECF No. 47 ¶¶ 159-60). Welch’s only response is to claim that no one ever told her
about that requirement. (Id. ¶¶ 159-60). Even when taken as true, the contention that she was
unaware of the policy does not by itself prove that Kindred either did not have such a policy or
used the policy as a pretext. Absent more, Welch failed to adduce sufficient evidence for a
reasonable jury to find that Kindred’s reasons were pretextual. Accordingly, the court must grant
Kindred’s motion for summary judgment as it relates to Welch’s age discrimination claim.
ii. Sex Discrimination Claim
Welch’s argument for her sex discrimination claim is even more difficult to ascertain. It,
however, fails for similar reasons that her age discrimination claim fails. In addition, besides
having no alleged comparators for her loss of PRN status, the alleged comparators she points to
for the other issues were all female.
Accordingly, they cannot support a claim of sex
discrimination. Nothing else in the record besides Buntman’s one comment regarding wiping the
lint off of her even suggests discriminatory animus on the basis of her sex. She, therefore, failed
to adduce sufficient evidence for a reasonable jury to find she made out the fourth element of the
prima facie case for sex discrimination. For similar reasons described above, Welch did not
demonstrate pretext. Because Welch failed to adduce sufficient evidence for a reasonable jury to
find she made out a prima facie case or pretext, the court must grant Kindred’s summary
judgment motion with respect to her sex discrimination claim.
38
V.
CONCLUSION
For the foregoing reasons, judgment will be entered in favor of Kindred with respect to
all claims asserted by each plaintiff.
An appropriate order follows.
Dated:
August 12, 2016
/s/ Joy Flowers Conti
Joy Flowers Conti
Chief United States District Judge
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