United States District Court, W.D. Pennsylvania
November 3, 2005.
JOYCE McACHREN, Plaintiff,
SAINT VINCENT HEALTH CENTER, Defendant.
The opinion of the court was delivered by: MAURICE COHILL JR., District Judge
Plaintiff Joyce McAchren brings this civil rights employment
discrimination action asserting that she was wrongfully
terminated from her job with Defendant Saint Vincent Health
Center based on her age in violation the Age Discrimination in
Employment Act ("ADEA") (29 U.S.C. § 621 et seq.) (Count I) and
the Pennsylvania Human Relations Act ("PHRA"), 43 P.S. 951, et
seq. (Count II). Ms. McAchren also asserts a claim of wrongful
discharge alleging that in violation of Pennsylvania public
policy Defendant terminated her in retaliation for filing a
workers' compensation claim in violation of Pennsylvania public
policy (Count III).
Presently before the Court is Defendant's motion for summary
judgment (Doc. 17), to which Plaintiff has responded. For the
reasons stated below, we will grant Defendant's motion and
dismiss this action.
I. GENERAL BACKGROUND
Joyce McAchren was hired by Saint Vincent Health Center as a
Registration/Discharge Clerk on August 8, 1994, working at
Defendant's Lawrence Park Family Practice. Ms. McAchren was born on March 31, 1947, making her 47 years old at the time
of her hire. In 1998, the Lawrence Park Family Practice merged
with Defendant's Harbor Creek Medical Practice, with the new name
of East Harbor Primary Care. As a Registration/Discharge Clerk,
Ms. McAchren's responsibilities included answering telephones,
scheduling patients for office visits, checking patients in,
taking information from patients for prescription refills, and
During her time with Defendant, Ms. McAchren received
evaluations in each year from 1996 through 1999. While she was
with the Lawrence Park Family Practice her 1996 evaluation was
completed by Kristin Lazzara, and her 1997 evaluation was
completed by the Office Manager of the Practice, Jan Tassario.
These two evaluations included detailed comments and were
critical of Ms. McAchren's job performance. At the East Harbor
Medical Practice, her 1998 evaluation was completed by Denise
Liberatore, and her 1999 evaluation was completed by Lynn
Schnars. These two evaluations contained minimal comments but did
find Ms. McAChren to be competent in her job performance.
During the relevant time period Nancy Potter was the Practice
Manager responsible for East Harbor, and beginning in April 2000,
Katrine Danowski was the Clinical Coordinator. James W. Lane,
M.D. and Carl Eby, M.D. were physicians who worked at both the
Lawrence Park Family Practice and the East Harbor Medical
Practice throughout Ms. McAchren's employment. Michael Madden,
M.D. was the Medical Director for Saint Vincent Medical Group
responsible for the medical providers at the practice and the
quality of the clinical services. Finally, throughout the
relevant time period the Director of Associate Relations for all
of Saint Vincent Health Center was Johnie Atkinson.
During her time at East Harbor, Ms. McAchren's responsibilities
were changed from time to time. At one point, the duties of answering telephones and making
patient appointments were split into a phone operator position
and a registration position, with Ms. McAchren assuming the phone
operator position. On May 22, 2000, Ms. McAchren was moved to the
medical records department and was responsible for filing and
retrieving patient charts and records. On her first day in the
medical records department Ms. McAchren began wearing a back
brace. She eventually mentioned her back pain to Ms. Danowski who
suggested that Ms. McAchren contact the Employee Health Services.
On June 29, 2000, Ms. McAchren filed a Confidential Associate
Injury Report with the Employee Health Service, alleging
work-related back and knee injuries first occurring in June,
1998. On June 30, 2000, Ms. McAchren presented a doctor's note to
Ms. Potter and Ms. Danowski stating that she should not continue
to work in medical records due to her 1998 back injury. Ms.
McAchren never filed a workers' compensation claim, however,
based on the report of the injury to Employee Health, Defendant's
employee in charge of worker's compensation issues reported Ms.
McAchren's injury information to Defendant's workers'
Ms. McAchren began an approved medical leave for surgery
unrelated to her back injury on July 1, 2000, returning to work
on August 21, 2000. When she returned from her medical leave, Ms.
McAchren was assigned to work at the registration desk because
she could not work in medical records due to her back injury.
While Ms. McAchren was on leave, Defendant learned from the
Highmark insurance company that two of its customers had
complained specifically about Ms. McAchren's rude behavior on the
telephone. As a result, Ms. Potter and Ms. Danowski created and
implemented a work improvement plan for Ms. McAchren aimed at
improving her performance. Ms. Potter and Ms. Danowski presented and discussed the action plan with Ms.
McAchren on August 25, 2000. As part of the Plan, Ms. McAchren
was scheduled for additional service excellence education; her
duties were to be monitored daily by Ms. Danowski; and she was to
attend weekly meetings with Ms. Potter to discuss her
performance, customer concerns, and general concerns.
While on the action plan, Defendant received three more patient
complaints about Ms. McAchren's rude and unprofessional behavior.
Because of the recent complaints and Ms. McAchren's seeming
failure to acknowledge a problem Ms. Potter and Ms. Atkinson met
with Ms. McAchren on September 15, 2000, and suspended her with a
recommendation of termination pending an investigation. On
September 21, 2000, Ms. Atkinson informed Ms. McAchren that an
investigation had been completed and that St. Vincent Health
Center was upholding the recommendation for termination, thus her
employment was terminated as of September 15, 2000.
II. STANDARD OF REVIEW
Summary judgment is appropriate when "the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party
is entitled to a judgment as a matter of law." Fed.R.Civ.P.
56(c), Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).
Summary judgment may be granted only if the moving party
establishes that there exists no genuine issue of material fact
and that it is entitled to judgment as a matter of law. Id.
Summary judgment is appropriate only when the record evidence
could not lead a reasonable jury to find for the non-moving
party. Anderson v. Liberty Lobby Inc., 477 U.S. 242, 248-49
(1986). In evaluating a motion for summary judgment the court
does not weigh the evidence or make credibility determinations.
Reeves v. Sanderson Plumbing Products, Inc., 120 S.Ct. 2097,
2110 (2000). Rather than evaluating the evidence and determining the truth of the
matter, the court determines whether there is a genuine issue for
trial. Anderson, 477 U.S. at 249. In reviewing the evidence,
the court draws all reasonable inferences in favor of the
non-moving party. Reeves, 120 S.Ct. at 1210; Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587-88 (1986).
Once the party moving for summary judgment has satisfied its
initial burden of production on the motion, then the burden
shifts to the party opposing the motion. The party must set forth
specific facts to show that there is a genuine issue for trial.
The non-movant "must do more than simply show that there is some
metaphysical doubt as to the material facts," and has an
affirmative duty to produce evidence demonstrating the existence
of a factual dispute. Matsushita, 475 U.S. at 586. The court
must evaluate the entire setting of the case, including the
record and all materials submitted in accordance with the motion
for summary judgment; whether it is clear that a trial is
unnecessary; and whether there is any doubt as to the existence
of a genuine issue for trial. Celotex, 477 U.S. at 324-25.
Defendant argues that Ms. McAchren cannot establish a prima
facie case for either her age discrimination claim or her
retaliation claim. In addition, even if she could establish a
prima facie case Defendant argues that she cannot rebut
Defendant's legitimate non-discriminatory or non-retaliatory
reasons for terminating her. Generally, Defendant claims that Ms.
McAchren is not qualified for her position based on a lengthy
history of poor performance, rude and unprofessional conduct
towards patients, and her failure to acknowledge or address these
deficiencies despite Defendant's attempts to help her. Ms.
McAchren claims that she performed competently throughout her
employment and challenges Defendant's evidence in support of its
claim that Ms. McAchren was fired because of her poor work performance. She thus argues
that genuine issues of material fact exist precluding the entry
of summary judgment
With regard to the retaliation claim, Defendant argues that Ms.
McAchren admitted that she had never filed a workers'
compensation claim thereby making it impossible for her to
establish that she was fired when she had only engaged in
protected activity. Ms. McAchren claims that once she filed an
internal injury report with Defendant's Employee Health Service a
workers' compensation claim was automatically filed by Defendant,
and therefore it is reasonable to "surmise that Plaintiff's
Supervisor" was aware of the claim.
A. Age Discrimination
The same analysis is used for both Plaintiff's ADEA claim and
her PHRA claim. See O'Connors v. Chrysler Fin. Corp.,
160 F.3d 971, 972 (3d Cir. 1998). Under the ADEA, "[i]t shall be
unlawful for an employer (1) . . . to discharge any individual or
otherwise discriminate against any individual with respect to his
compensation, terms, conditions or privileges of employment,
because of such individual's age." 29 U.S.C. § 623(a)(1).
The familiar McDonnell Douglas analysis requires: "first,
that the plaintiff establish a prima facie case of employment
discrimination; second, that the employer proffer a
nondiscriminatory reason for its adverse employment action; and
third, that the plaintiff must then show that the employer's
proffered explanations were pretextual." Williams v. Shenango,
Inc., 986. F. Supp. 309, 318 (citing McDonnell Douglas Corp. v.
Green, 411 U.S. 792 (1973)); see also Goosby v. Johnson &
Johnson Medical, Inc., 228 F.3d 313 (3d Cir. 2000).
To establish a prima facie case of age discrimination, a
plaintiff must show that he or she:
(1) was a member of the protected class, i.e., was
over 40, (2) was qualified for the position, (3)
suffered an adverse employment decision, and (4)
ultimately was replaced by a person sufficiently younger to permit an inference of age
discrimination. Duffy v. Paper Magic Group, Inc.,
265 F.3d 163, 167 (3d Cir. 2001).
Monaco v. American General Assurance Company, 359 F.3d 296
300-301 (3d Cir. 2004), cert. den'd, 125 S.Ct. 62 (2004).
Once a plaintiff sets forth a prima facie case, the defendant
has the relatively light burden of coming forward with a
legitimate, non-discriminatory reason for the adverse employment
decision. Goosby, 228 F.3d at 319. "If the employer is able to
proffer a legitimate non-discriminatory reason for its actions,
the plaintiff must demonstrate that the proffered reason was
merely a pretext for unlawful discrimination." Id.
1. Prima Facie Case of Age Discrimination
Defendant argues that Plaintiff's age discrimination claim
fails because Ms. McAchren cannot establish a prima facie case,
i.e., she cannot show that she was qualified for the position
of Registration/Discharge Clerk. The duties of the Clerk include,
inter alia, answering telephones, scheduling patient office
visits, checking patents in and out, and taking information from
patients for prescription refills. Of primary concern for the
Defendant is that the position requires excellent customer
service skills given that the first person a patient encounters
either on the telephone or in person is the
Registration/Discharge Clerk. Defendant claims that throughout
Ms. McAchren's employment there were numerous complaints from the
practice's doctors, patients, and co-workers about her poor job
performance, in particular her rudeness and impropriety towards
patients. Defendant asserts that despite its efforts to counsel
and train Ms. McAchren to be able to perform her job in the area
of customer service it eventually became apparent that she did
not possess the requisite skills to successfully perform her
position. Defendant argues that Ms. McAchren's overall employment
history shows that she was not qualified for her position. a. Ms. McAchren's Evaluations
As noted, Ms. McAchren received four evaluations during her
tenure with Defendant.
i. 1996 Evaluation
Plaintiff's 1996 Competency Assessment identifies four of nine
areas of "Responsibilities/Competencies/Expectations" where Ms.
McAchren was designated as not competent. (1996 Competency
Assessment, attached as Ex 1. to Def. Ex. A (McAchren Dep.).)
According to the Assessment Ms. McAchren was not competent in
performing the patient registration process; handling incoming
telephone calls; performing the patient discharge duties; and
maintaining daily office cash flow. (Id.) The Assessment form
was completed by Kristin Lazzara, who handwrote the following
relevant comments in an adjoining column entitled
Joyce performed the registration function daily until
the patient complaints became overwhelming. She was
told not to answer phones and her jobs tasks in the
office decreased significantly.
Joyce was told specifically about her phone etiquette
and taken off the phones. Because of the volume of
phone calls, Joyce is needed. Her performance will be
At one time Joyce performed the discharge function,
but no longer feels comfortable with this task.
Rarely does Joyce schedule or discharge patients. She
will perform this function during evening hours and
also when the others are absent.
Joyce works hard and is not a malicious [person], but
is not carrying her weight in the front office. We
have discussed this several times and she has also
met with the physicians. Joyce cannot seem to
understand these accusations. . . .
A specific four-page Competency Tool for the
Registration/Discharge Clerk position is attached to the 1996
Competency Assessment. This form sets forth more specific areas
of evaluation for the position. Ms. Lazzara also handwrote
comments with regard to some of these areas as follows: 2.2 Welcomes each patient upon arrival.
Joyce does not welcome patients from her position in
[the] front office.
3.1 Promptly answers telephone and triages telephone
calls as needed.
Joyce does not answer phone calls due to her demeanor
on the phone. She has been asked to stay off the
phone because of her manners and rudeness to
patients. Joyce can in no way understand what the
problems are or the fact that patients complain [.]
3.3 Responds to telephone inquiries in a
Joyce has been asked by Dr. Lane or Eby not to answer
phone calls because of her lack of professionalism.
At the bottom of the page, underneath the general evaluation area
"3. HANDLES INCOMING TELEPHONE CALLS" is listed the following
Since the volume has increased, Joyce has been asked
to help out [rest of sentence is cut off.]
On the last page of the Competency Tool, Ms. Lazzara wrote the
. . . We need to have Joyce perform more of the front
office tasks in order to have the work evenly
distributed . . .
Joyce does not agree that she is not carrying her
load. She has worked in healthcare 12 years and feels
she has done a fine job.
ii. 1997 Evaluation
An Associate Communication Form addressed to Ms. McAchren and
another employee named Ann was prepared by the Office Manager Jan
Tassario on December 30, 1997. This Form stated that Joyce and
Ann had "made no significant progress with registration and
charge entry despite the additional resources and meetings that
have been held with you both." (December 30, 1997 Associate
Communication Form, attached as Ex 2. to Def. Ex. A (McAchren
Dep.).) This memo recounts the history of recent meetings
addressing the two employees' failure to fulfill the expectations
of their job duties with respect to "charges, hospital billing
and registrations." (Id.) On December 1, 1997, Ms. Tassario and Laurie Dart met with the
employees to discuss their "expectations and actions that must be
taken to ensure that charges were addressed." (Id.) This
meeting was necessary because the office was falling behind in
these tasks because it was short-staffed until an open full time
clerical position was filled. (Id., Memorandum from Laurie Dart
to Patty Ballman, Dr. Trotta, Dr. Lane and Dr. Eby, dated
December 9, 1997, and attached "Event Report," ("Explained that
until we hire Michelle's replacement the work flow must
On December 18, 1997, Ms. Tassario again met with the
employees, this time with Patty Ballman, in order to discuss "the
seriousness of the situation and lack of progress." (Id.) Ms.
Tassario again met with the employees on December 23, 1997 "to
address your lack of response to fulfilling the expectations of
your job duties. . . ." (Id.) Ms. Tassario recounted that at
the December 23rd meeting the employees "were informed that
you must keep all registrations updated daily and that at least
40 charges a day must be entered." (Id.) Ms. Tassario also
explained that with regard to registrations and charges Joyce and
are both equally responsible to ensure that those two
directives will be met. It is imperative to the
practice that those two directives are carried out.
Failure to do so will result in the appropriate
disciplinary action being taken.
The purpose of the December 30, 1997 Associate Communication
Form was to set forth an action plan with regard to the deficient
performance. Attached to the Form was a December 30, 1997 memo
from Laurie Dart to Joyce and Ann with an "Event Report"
regarding some of the events that occurred in December 1997
concerning the task of registrations and charges. On December 3,
1997, Ms. Dart noted that as of December 19, only $4,000 in
charges had been keyed in, which amounts to "barely one fee slip
per Ann and Joyce per day." In addition, she noted that the registrations were not current and "the schedule had not been
touched" until another employee was brought in. Ms. Dart
concluded the Event Report as follows:
Despite the resources of Suzanne Boyer, Deb Strike,
Heather Mozfdy and PSS no real progress has been
made. Ann and Joyce continue to complain to the
doctors. Patty, Myself and Jan have made great
efforts to offer resources and implement change. I
think effective immediately, Ann and Joyce should
come up with a work plan that they are 100%
accountable for and presents
iii. 1998 Evaluation
Plaintiff's 1998 Competency Assessment was prepared by Denise
Liberatore and completed on April 23, 1998. (1998 Competency
Assessment, attached as Ex 2. to Pl. Ex. L.) Ms. McAchren was
rated as meeting competency in all nine of the listed Competency
areas. The following comments were handwritten in the adjoining
Greet Pt's at window ask ques[tion] about up-dated
info. when able reg[ister] pt in IDX sys[tem]
Cover discharge windows when needed make f[ollow]
u[p] if necessary receive [illegible] if necessary
Would like to increase education skills by attending
seminars when available
(Id.) The remaining four pages of this form are not completed.
iv. 1999 Evaluation
Plaintiff's 1999 Competency Assessment was prepared by Lynn
Schnars and completed on October 5, 1999. (1999 Competency
Assessment, attached as Ex 3. to Pl. Ex. L.) On the 1998 and 1996
forms there are nine listed Competency areas on the first page.
On the 1999 form, this list has been reduced to four areas. Ms.
McAchren was rated as meeting competency in all four of the
listed Competency areas. The following comment was handwritten in
the adjoining column: Joyce effectively communicates with patients staff
in a sometimes difficult position as being on the
"front line" representation for the practice. At
times she would do better with more outlined plans to
use for certain situations and we are working on
(Id.) The remaining four pages of this form are also not
b. Complaints from Doctors Lane and Eby
James W. Lane, M.D. and Carl Eby, M.D. were physicians at the
Lawrence Park Practice and the East Harbor Practice the entire
time that Ms. McAchren worked at these practices. (Affidavit of
James W. Lane, M.D., Def. Ex. 2; Affidavit of Carl Eby, M.D.,
Def. Ex. 3.) The affidavits reflect the following:
Both doctors had substantial interaction with Joyce
McAchren, had the opportunity to observe her job
performance, and opined that her job performance
during her employment at Lawrence Park/East Harbor
was poor (Lane Affidavit, at ¶¶ 4-5; Eby Affidavit at
Both doctors stated that they received many
complaints from patients concerning Ms. McAchren's
demeanor, including patient complaints that she was
rude, unprofessional and unhelpful in person and on
the phone; both also report that some of their
patients left the practice in part due to their
negative experiences with Ms. McAchren's. (Lane
Affidavit, at ¶¶ 6-7; Eby Affidavit at ¶¶ 5-6.)
Both doctors stated that they discussed Ms.
McAchren's deficiencies with management and with the
Medical Director, Dr. Michael Madden, numerous times
from 1996 through her termination. (Lane Affidavit,
at ¶ 8; Eby Affidavit at ¶ 7.)
Both Doctors also reported that it was clear that
Ms. McAchren "did not recognize or acknowledge that
there was a problem with her performance or with her
interaction with patients." (Lane Affidavit, at ¶ 8;
Eby Affidavit at ¶ 7.)
Both doctors stated that they eventually left the
practice in part because of their "frustration with
what [they] perceived to be management's lack of
progress in addressing employee performance issues at
East Harbor, including those involving Joyce
McAchren," and that each doctor had advised the
management of the practice and Dr. Madden of the
reasons why they left the practice. (Lane Affidavit,
at ¶ 8; Eby Affidavit at ¶ 7.)
Both doctors left the practice after Ms. McAchren
was terminated. Dr. Lane left the practice in January
2001, and Dr. Eby in December 2000 (Lane Affidavit,
at ¶ 8; Eby Affidavit at ¶ 7.) Dr. Madden testified that Doctors Lane and Eby told him that
Ms. McAchren's "interactions with patients were rude, and they
had gotten a number of complaints from patients about that. And
that there were other job duties, that I don't recall the details
of those, that she was not performing well." (Madden Dep., at 8,
Def. Ex. G.) He also testified that the two doctors told him that
part of the reason they left was due to Ms. McAchren's poor
performance and the practice's inability to aggressively deal
with her performance problems. (Madden Dep., at 10.) Dr. Madden
memorialized this information in a memo to Johnie Atkinson dated
August 16, 2001. (Ex. 1 to Madden Dep.) In addition, Ms. Atkinson
testified that she was aware that doctors Lane and Eby had
complained about Ms. McAchren's performance. (Atkinson Aff., at
20-21; 30, Def. Ex. D.)
c. Patient Complaints
In addition to Drs. Lane and Eby's general statements that many
patients complained about Ms. McAchren, Defendant also cites to
several specific patient complaints about Ms. McAchren in support
of its argument. (Potter Dep., at 10-12; Danowski Dep., at 17,
30-33; 34-36; 39-41; Highmark Documents attached as Ex. 2 to Def.
i. Complaints from Highmark Customers
Defendant claims that two Highmark customers that were patients
of the East Harbor Practice complained to Highmark about Ms.
McAchren's inappropriate behavior towards them. (Highmark
documents of inquiries to the member service department that
refers to a Joyce from East Harbor Primary Care, attached as Ex.
2 to Def. Ex. I; Potter Dep., at 19, 75; Atkinson Dep., at 36.)
Highmark documents show that on April 6, 1999 one of its
customers called to complain about her treatment at the East
Harbor practice. (Ex. 2 to Def. Ex. I., at 2.) The patient stated
that she called the East Harbor Practice to make an appointment and
"Spoke to Joyce" who was very rude to her, and told the patient
that she was not on the roster and that an appointment would not
be made until she was on the roster. (Ex. 2 to Def. Ex. I., at
2.) The patient asked Joyce to call the insurance company to
verify her enrollment, and Joyce told the patient it was not her
responsibility and that the insurance company must call her.
(Id.) Highmark documents that in May, 2000, another of its
customers who had spoken with Joyce had a hard time getting a
referral in an emergency situation, and the case was being
investigated by Highmark. (Ex. 2 to Def. Ex. I., at 58.)
Handwritten on one of the Highmark pages is a note dated 5/10/00
noting that the case was discussed with Nancy Potter. (Id.)
Ms. Atkinson testified that it was not common for Highmark to
report that one of its customers had identified a specific
employee by name as being the source of unsatisfactory service.
(Atkinson Dep., at 36.) Ms. Potter learned of the two complaints
about Joyce when she had her quarterly review with Highmark.
(Potter Dep., at 19.)
ii. Complaints from Three Other Patients
Defendant also claims that three patients directly complained
about Ms. McAchren behavior towards them after Ms. McAchren was
put on an action plan.
On August 25, 2000, a patient arrived to obtain a referral to
have her cast replaced, or to have it replaced in the office.
(August 28, 2000 Associate Communication Form, McAchren Dep. Ex.
12, attached to Def. Ex. A; Affidavit of Lisa Gorka, January 14,
2005, attached as Def. Ex. A to Defendant's Reply Brief.) The
patient, Lisa Gorka, complained that "Joyce was very nasty and
short with her at the window." (Id.) Ms. Gorka eventually spoke
with a supervisor, Katrine Danowski, and identified Ms. McAchren by name and by pointing to
her. (Danowski Dep., at 30, 32-33.) Two other East Harbor
employees confirmed Ms. Gorka's complaint that Ms. McAchren had
been rude to her. (Danowski Dep., at 31-32, 34.)
Ms. McAchren was counseled by Ms. Danowski and Ms. Potter, and
she was given a written warning. (August 28, 2000 Associate
Communication Form, McAchren Dep. Ex. 12, attached to Def. Ex.
A.) Ms. McAchren signed the written warning on the space
designated "I disagree with this statement." (Id.) Ms. McAchren
claims that she was not the person Ms. Gorka talked to on August
25, 2000. (McAchren Dep., at 54.)
On September 6, 2000, Sharon Markle telephoned Ms. Danowski to
complain about her experience telephoning the office the previous
day. (September 6, 2000 Associate Communication Form, McAchren
Dep. Ex. 13, attached to Def. Ex. A; Danowski Dep., at 23, 40.)
Ms. Markle said that she called in the morning on September 5,
2005, and was put on hold by Joyce without being asked why she
had called. (Id.) She hung up after waiting ten minutes and
called back at 4:36 p.m. the same day. (Id.) The same Clerk
answered the phone on the afternoon call and again put Ms. Markle
on hold without asking why she had called. (Id.) Ms. Markle
stayed on the line until she was disconnected shortly after 5:00
p.m. when the phones were switched to the answering service.
Ms. Danowski testified that Ms. Markle identified the clerk who
took her calls as Ms. McAchren. (Danowski Dep., at 23, 41.) Ms.
Danowski prepared an Associate Communication Form detailing the
information taken from Ms. Markle's telephone call and noted that
Ms. Markle stated that she was put on hold by "Joyce." (September
6, 2000 Associate Communication Form, McAchren Dep. Ex. 13, attached to Def. Ex. A.) Ms. McAchren was
again counseled by Ms. Danowski and Ms. Potter, and given a
written warning. (Id.) Ms. McAchren signed the written warning
on the space designated "I disagree with this statement." (Id.)
Ms. McAchren claims that she was misidentified as the clerk who
spoke with Ms. Markle. On December 4, 2001, Ms. Markle testified
at Ms. McAchren's workers' compensation hearing that when she did
not tell Ms. Danowski who the Clerk was who answered her call
because she did not know who it was. (Markle testimony, at 41,
Pl. Ex. M.) Ms. Markle also testified that Ms. Danowski asked her
if the person who answered her call was Joyce. (Id.) Ms. Markle
replied that the person was not Joyce. (Id.)
On September 11, 2000, James Hughes complained that Ms.
McAchren "did not make any effort to assist" him when he came to
the office to pick up his wife's X-rays. (September 12, 2000
Associate Communication Form, McAchren Dep. Ex. 14, attached to
Def. Ex. A.) In fact, he had to make two trips to the office
based on Ms. McAchren's initial wrong information and had to lose
work time. (Id.) Ms. McAchren was counseled by Ms. Danowski,
and given a written warning. (Id.) Ms. McAchren did not sign
the written warning, and claims it was never presented to her.
(Id.; McAchren Dep., at 55.)
d. St. Vincent's Efforts to Assist Ms. McAchren
Defendant asserts that in response to Ms. McAchren's poor job
performance, management tried to help her succeed in several
ways. First, the Registration/Discharge Clerk position was split
into two positions. Because of her poor performance Ms. McAchren
was assigned the duty of answering telephones, and she no longer
had the responsibility of making appointments. (Potter Dep., at 8.) Next, while remaining as a telephone operator, her
chair and desk were moved to a quieter area so "it would be
easier for her to concentrate on what she was doing in answering
the phones rather than the distraction of people coming to the
window and coming to the desk." (Id., at 9.) Next, after the
telephone complaints continued, management moved Ms. McAchren to
a position in the medical file room. (Id.)
While Ms. McAchren was on an approved medical leave, Ms. Potter
attended a regularly scheduled meeting with representatives from
Highmark at which Ms. Potter learned of the two customer
complaints that named Ms. McAchren. (Potter Dep., at 19, 75.)
Because of these two complaints and in light of staff and
physician comments concerning her poor performance, Ms.
Danowski's own observations of Ms. McAchren's frustration at the
registration window, and a backlog of information that Ms.
McAchren had not yet entered, Ms. Potter and Ms. Danowski decided
to implement a Work Improvement Plan, or "action plan," for Ms.
McAchren. (Potter Dep., at 20, Danowski Dep., at 12-16.)
The action plan was set forth in an Associate Communication
Form to Joyce McAchren and presented to her by Ms. Danowski and
Ms. Potter on August 25, 2000. (Ex. 11 to McAchren Dep. attached
as Def. Ex. A.)
The action plan set forth a brief overview of the training Ms.
McAchren has received:
Joyce has had training through our RHMS [Regional
Health Management Services] as well as monthly
updates over the past 3 years. In the past Emmie
Keller has given her extra training on use of the IDX
system. Cassie Endress, an office manager from
Titusville was brought into help with education and
organizational skills. Joyce has also had the
opportunity to attend hospital inservices such as
Chip Bell and Fred Pryor which focused on the area of
(Id.) Next followed a list of nine assigned duties of Ms.
McAchren's position: 1. Greet the patient with a positive attitude and
smile, a mirror will be placed at your desk to help.
2. Check all registration information and make a copy
of the current card is in the chart.
3. Any changes will be written on the information
sheet, and on the top of the encounter form with the
4. Make changes in IDX as soon as possible. AM by
noon and PM before the end of the day.
5. Monitor the waiting room at all times for patients
that have not check[ed] in, neatness, Pt having
trouble entering or leaving the building, and
patients waiting for rides.
6. Keep patient informed of any changes in the
schedule or delays.
7. Monitoring the charts: if they are in the  for
more than 2-3  investigate.
8. Arrive and no show all appointment, AM to be done
by lunch and PM before going home.
9. Share in answering the " phones, taking messages,
bump list and no show letters.
(Id.) With regard to these duties, Ms. Danowski testified that
"at some point, [Ms. McAchren] had problems with all of these
areas." (Danowski Dep., at 26.) Finally, the "Action Plan" was
1. Joyce will attend upcoming service excellence
2. Duties as assigned will be monitored daily by
C[linical] C[oordinator, Ms. Danowski]
3. [Ms. Potter] will meet Joyce weekly to go over
performance, customer concerns and general concerns.
(Id.) Ms. McAchren wrote in the words "I disagree" in the space
designated for her signature on the action plan. (Id.)
e. Decision to Terminate
Because of the last three patient complaints and because they
occurred while Ms. McAchren was on the action plan, Ms. Potter
recommended to Ms. Atkinson, the Director of Associate Relations,
that Ms. McAchren be terminated. (Potter Dep., at 20-21.) Ms.
Potter and Ms. Atkinson met with Ms. McAchren on September 15,
2000. (McAchren Dep., at 48-49.) At that time, Ms. McAchren was
told that she was being suspended pending an investigation into
the patient complaints and in general because of her past history
of poor performance. (September 15, 2000 Associate Warning
Notice, attached a Ex. 20 to McAchren Dep. Def. Ex. A.) On
September 21, 2000, Ms. Atkinson told Ms. McAchren that the investigation was
complete and the termination recommendation was being upheld.
(McAchren Dep., at 49.)
To summarize, Defendant claims that Ms. McAchren was terminated
because her lengthy history of poor performance, her rude and
unprofessional conduct towards patients, and her failure to
acknowledge or address these deficiencies despite Defendant's
attempts to help her. As a result, Defendant argues that Ms.
McAchren cannot establish a prima facie case of age
discrimination because she cannot establish that she was
qualified for her job. Defendant asserts that in order to be
qualified for Ms. McAchren's clerk position, she must be able to
treat patients with courtesy and respect. Defendant argues that
the record evidence shows that Ms. McAchren was in fact rude and
unprofessional toward patients on the phone and in person.
Moreover, even though Defendant warned Ms. McAchren about her
behavior and counseled her over several years, her performance
never improved and in fact she consistently denied that she had
problem. Therefore, Defendant concludes, she is not qualified for
the position. Defendant has met its initial burden of production
to show that Ms. McAchren cannot state a prima facie case, thus
the burden shifts to Ms. McAchren who must set forth specific
facts to show that there is a genuine issue for trial.
2. Ms. McAchren's Response
Ms. McAchren responds to Defendant's motion by claiming that
she performed competently throughout her employment; that
Defendant is lying about the facts of the three patient
complaints that were in fact not complaints about her; that
Defendant was considering terminating Ms. McAchren before she
went on her leave of absence; and that Defendant is misleading or
lying about nearly every other item of evidence cited to support
its claim that Ms. McAchren was fired because of her poor work
performance. Ms. McAchren has offered very little direct record evidence in
support of her argument, and the bulk of the argument rests on
assertions that do not raise a genuine issue of material fact. In
this regard, Defendant has moved to have twenty-five of its
statements of undisputed material fact deemed admitted arguing
that Ms. McAchren has failed to comply with Local Rule
56.1(C)(1). (Defendant's Motion to Have Certain of Defendant's
Statements of Undisputed Material Facts Deemed Admitted, Doc.
26.) Specifically, Defendant asserts that Ms. McAchren failed to
provide an "appropriate reference to the record" in denying, or
denying as stated, twenty-five of the 105 facts asserted by
Defendant. L.R. 56.1(C)(1). (Id.)
We note that the call and response of the statements of fact
required by our Local Rule 56.1(B)(1) is a ripe framework for
parties to argue their positions, rather than presenting a
concise statement of essential facts. For example:
[Defendant contends:] 10. In her capacity as
Clinical Coordinator for East Harbor, Katrine
Danowski became familiar with Plaintiff and her
employment with SVHC. (Danowski 6).
[Plaintiff responds:] 10. Denied as stated. Because
of the time frames involved, Danowski was not
familiar with all aspects of Plaintiff's employment
and her abilities in the various position to which
Plaintiff was assigned prior to her termination. More
specifically, Danowski would not have been familiar
with Plaintiff's employment evaluations.
Defendant moves to have its fact number 10 deemed admitted, and
indeed Plaintiff does admit this fact. In doing so, however, she
is unable to restrain from arguing to the Court the obvious fact
that Ms. Danowski is only familiar with Ms. McAchren's employment
insofar as she actually was familiar with it, or in Defendant's
words "[i]n her capacity as Clinical Coordinator for East
Harbor," which Plaintiff admitted began in April, 2000. Such
argument adds nothing to the parties statements of fact. Other statements of fact and response are similarly lacking in
any substantial meaning for purposes of the summary judgment
motion. For example, Defendant's contentions numbered 27 through
30 concern the 1997 Associate Communication Form that is critical
of Ms. McAchren. However, Defendant neglects to mention that the
Form was addressed to Ms. McAchren and another employee named
"Ann". Plaintiff's responses to 27 through 30 point out that the
Form was addressed to both employees, but Plaintiff failed to
cite to the document. The Court was able to review the document
and see for itself that the form was addressed to two employees.
The end result is that Defendant is correct that its assertions
in 27 through 30 are undisputed, and at the same time Plaintiff
is correct that Defendant's assertions were incomplete.
Other assertions of fact are more substantial. For example,
Defendant asserts in paragraphs 32 and 33 that Drs. Lane and
Eby's opinion was that Ms. McAchren's job performance was poor.
Defendant supports these assertions with citations to each
doctor's respective affidavit. Plaintiff inexplicably denies the
asserted fact by stating that neither of the doctors' opinions
shows up in one of the four formal evaluations. Plaintiff
attempts to disguise the fact that she has no evidence to
contradict Drs. Lane and Eby's opinion by instead presenting an
argument more properly reserved for its brief in opposition.
We decline to add an extra layer of analysis to our resolution
of the motion for summary judgment by conducting a separate
point-by-point analysis comparing Defendant's statements with Ms.
McAchren's responses and determining whether the fact should be
deemed admitted. To the extent that any fact is necessary to a
resolution of the summary judgment motion we will by necessity
determine whether such fact is a genuine issue of material fact,
or not. To that extent Defendant's motion to have certain statements of fact deemed
admitted will be addressed insofar as each contention is
necessary to our analysis herein.
We now turn to Ms. McAchren's argument in opposition to
Defendant's motion. We need only address the arguments raised by
Plaintiff that include some reliance on record evidence.
Ms. McAchren first isolates her four performance evaluations in
the record dating from 1996 through 1999. Ms. McAchren argues
that the 1996 and 1997 evaluations reveal such a poor performance
by Ms. McAchren that a factfinder could reasonably question why
Defendant would keep such a poor performer employed as long as it
did. She implicitly argues that since the 1998 and 1999
evaluations show that she met competency in all areas a genuine
issue of material fact exists over whether Ms. McAchren actually
was qualified to do the job, and that the 1996 and 1997
evaluations are perhaps false or exaggerated.
While this is a legitimate argument, it lacks record evidence
to support it when Defendant's argument is viewed in its
entirety. To show that Ms. McAchren is not qualified for her
position Defendant not only relied on the 1996 and 1997
evaluations, but also relied on the complaints of two doctors who
worked with Ms. McAchren throughout her tenure, the patient
complaints relayed to the practice by Highmark in 2000, the
direct patient complaints in 2000, Ms. McAchren's supervisors'
own observations of her, and Ms. McAchren's longstanding refusal
to acknowledge that she had any problems. Ms. McAchren places far
too much emphasis on Defendant's reliance on the 1996 and 1997
evaluations to show that Ms. McAchren is not qualified.
A factfinder must view all the evidence in determining the
question of whether Ms. McAchren was qualified for her position.
At best, by pointing to the April 23, 1998 evaluation and the
October 5, 1999 evaluation, Ms. McAchren has raised an issue of
fact over whether she was qualified for her job for the first four months of 1998 and the
first nine months of 1999. Assuming that this fact is disputed,
it is not "material" if viewing the fact in favor of Ms.
McAchren's it is not likely to affect the outcome of the case
under the applicable law. Anderson, 477 U.S. at 248,
106 S.Ct. at 2510. Such is the case here.
The 1998 and 1999 evaluations say nothing about Ms. McAchren's
performance in 2000, the year she was terminated. There is no
documentary evidence from either of the two supervisors who
completed the 1998 and 1999 evaluations to show that their
evaluation of Ms. McAchren remained true in subsequent years. In
contrast, Defendants have put forth facts supported by record
evidence to show that Ms. McAchren's performance in 2000 was
poor, and consistent with her performance evaluations from 1996
and 1997. We conclude that the fact that she her evaluations
showed her as competent in 1998 and 1999 does not establish or
raise an issue of fact as to whether she was competent, or
qualified for her job, in 2000. Billet v. CIGNA Corp.,
940 F.2d 812, 826-827 (3d Cir. 1991) (overruled in part on other grounds
St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993)). In
addition, in light of all the record evidence we conclude that a
factfinder could not reasonably believe that Ms. McAchren was
qualified for her position based solely on the 1998 and 1999
Similarly, Plaintiff claims that a genuine issue of material
fact exists with regard to whether she was qualified because
Defendant assigned her to answer telephone calls when it split
the Clerk position duties. However, it is clear from the record
evidence that at the time of the reassignment Ms. Potter felt
that Ms. McAchren could not handle performing both functions:
Q. Okay, was that separation done because of a
problem with her performance or because the practice
had grown to the point where there were more phone
lines and somebody was needed to be dedicated to the
A. I would say it was her performance, because when
I had people in other positions, they handled it fairly well.
(Potter Dep., at 8.) Ms. Potter then moved Ms. McAchren to work
in the file room "when the phone complaints became so large."
(Potter Dep., at 9.)
Plaintiff suggests that by placing her to answer phones a
factfinder could infer that Defendant found her performance to be
acceptable. However Ms. McAchren offers no evidence to rebut
Defendant's evidence that the reason she was placed on the phones
was because she could not handle performing the full duties of
her position. Even if we assume that Plaintiff is correct, that
Defendant viewed her as qualified to perform her job at the time
the Clerk position duties were split, the material issue of fact
is whether Ms. McAchren was qualified for her position when
Defendant terminated her. In this regard, we do not view the
documentary evidence in isolation and after "the phone complaints
became so large", Defendant in fact removed Ms. McAchren from
answering the phone to the file room. (Potter Dep., at 9.)
Ms. McAchren also suggests that Defendant must have thought she
was qualified when it assigned her to the registration desk after
her medical leave where she had to answer phones and talk to
patients. This argument, however, ignores the fact Defendant was
bound to honor Ms. McAchren's doctor's note prohibiting her from
working in the file room due to her back injury. We find no
genuine issue of material fact on this issue.
Next, Plaintiff argues that Defendant is not being truthful
about when it first learned that two Highmark customers had
complained about Ms. McAchren by name. Ms. Potter testified that
she first learned of the complaints at a regularly scheduled
quarterly meeting. (Potter Dep., at 19.) In response, Plaintiff
points to the handwritten note dated May 10, 2000, appearing on
one of the complaint documents produced by Highmark referring to
a patient complaint about getting a referral. (Ex. 2 to Def. Ex. I., 5-8.) The note states:
5/10/00 Nancy Potter discussed with her:
They have a note saying 72 hrs. for a referral. (This
was probably an urgent situation & injury happened on
(Id. at 6.) Plaintiff argues that Ms. Potter thus learned that
this patient had complained about Ms. McAchren before she began
her medical leave. Plaintiff does not provide any documentary
evidence to contradict Ms. Potter's testimony that she learned
from Highmark that two patients had specifically named Ms.
McAchren when complaining about the service they received while
Ms. McAchren was on medical leave. The above handwritten note
refers to an attempt to assist the customer in getting a referral
in a time-sensitive emergency situation, not to inform Ms. Potter
of a patient complaint about a specific employee. In contrast,
Ms. Potter explained the process as follows:
A.. . . . in the case of the Highmark people, which
is one of our biggest insurance carriers, I would
have to sit with a representative and review the
patient complaints, and like I said, then when
they're named, then you need to go back and talk to
the associate and say that, you know, the carrier
says that you were rude to this patient. We're never
told the patient's name by the carrier.
Q. Okay, when Highmark or Keystone bring you this
information, do they give you a written report.
Q. Do you take notes when they talk to you?
A. They ask us not to.
(Potter Dep., at 12.) More specifically, Ms. Potter testified
that "while Joyce was away, I got my quarterly review from
Highmark, which I sit down with their representative, and she was
named as being rude and not friendly." (Potter Dep., at 19.) Ms.
Potter also explained that at these meetings Highmark is
protective of its customer's confidentiality and she is never
told who the patient is:
Q. Okay, how much specific information do they give
you when they tell you that somebody was named as
rude or not friendly or that there was a problem with
somebody on your staff?
A. Just that. Q. That there's a problem?
A. That this person, when I talked to them on the
phone, was extremely rude or unhelpful.
Q. Okay, so there's no way for you to verify that
Q. There's no way for you to do any further
A. (witness shakes head from side to side.) Because
I don't have the patient's name.
(Id.; see also id., at 75, 78.) Plaintiff has not offered
any deposition testimony from Ms. Potter regarding the note, nor
did Plaintiff offer any other evidence from a representative of
Highmark that might elaborate on the note. In contrast,
Defendant's evidence shows that Highmark handled customer
complaints about specific employees in a manner designed to
protect the identity of the customer. Plaintiff's evidence only
shows that Highmark attempted to resolve an emergency situation
for its customer. We conclude that there is no genuine issue of
material fact as to when Defendant learned from Highmark that its
customers had specifically complained about how they were treated
by Ms. McAchren.
Next, Plaintiff challenges all three of the patient complaints
occurring after Defendant placed Ms. McAchren on the action plan.
As to Ms. Gorka's complaint, Ms. McAchren claims that she was not
present because she was in a meeting with her supervisors to
discuss the action plan. Ms. McAchren is unable to support this
claim with documentary evidence. Defendant supports its version
of the incident through the following:
testimonial evidence from Ms. Danowski that Ms.
Gorka identified Plaintiff by name and pointed to
testimonial evidence from Ms. Danowski that two
other employees confirmed that it was Ms. McAchren
who dealt with Ms. Gorka; and
Ms. Gorka's affidavit stating that she was
complaining about Ms. McAchren.
Ms. McAchren offers no contradictory evidence other than her own
testimony that she was not present. We thus conclude that no reasonable factfinder could
find that Ms. McAchren was not involved in this incident.
Next, Ms. McAchren attempts to challenge Mr. Hughes complaint
against her by citing the written warning. She did not sign the
form and claims it was never presented to her. Accepting as true
that the written warning was never presented to her, Ms. McAchren
still fails to offer any evidence to challenge the fact that Mr.
Hughes actually did complain about her and that Defendant did
rely on this complaint in its decision to terminate her. There is
no genuine issue of material fact regarding the occurrence of Mr.
Finally, Ms. McAchren offers Ms. Markle's testimony from Ms.
McAchren's worker's compensation hearing. Ms. Markle testified
that she did complain about an employee of Defendant to Ms.
Danowski, but it was not Ms. McAchren. (Markle testimony, at 41,
Pl. Ex. M.) In response, Defendant points out that it offered
contemporary evidence in the form of Ms. Danowski's September 6,
2000 Associate Communication Form, which shows that Ms. Markle
initially identified Ms. McAchren as the employee who had been
rude to her. Defendant also notes that Ms. Markle's later
testimony occurred 15 months after the incident, thus it is
possible that her later testimony is incorrect. We conclude that
there is a disputed issue of fact as to whether Ms. Markle
identified Ms. McAchren as the employee who was rude to her.
Defendant though still argues that it had an honest belief at
the time of the telephone call that it was Ms. McAchren who had
been rude to Ms. Markle and appropriately disciplined her. Thus,
Defendant argues that Plaintiff cannot show that Defendant's
reliance on Ms. Markle's complaint is evidence of pretext. We
agree. We also conclude that although this fact is disputed, it is not
material. In accepting Plaintiff's version of this incident we
still reach the same outcome under the law, that is, that the
record evidence shows that Ms. McAchren was not qualified for her
position. While a factfinder faced with the contradictory
testimony of Ms. Markle and Ms. Danowski might reasonably believe
that Ms. Markle did not identify Ms. McAchren as the employee who
had been rude to her on the telephone; based on the record
evidence as a whole a factfinder could not reasonably conclude
that Ms. McAchren was qualified for her position.
Next, Plaintiff contends that Defendant is lying about when it
decided to terminate Ms. McAchren. Defendant asserts that it was
after the three patient complaints were received in August and
September 2000 that it decided to recommend termination.
Plaintiff argues that the termination process was underway before
she returned from medical leave. (Plaintiff's Memorandum, at 8.)
Plaintiff supports this argument by citing to Ms. Atkinson's
testimony given at the workers' compensation hearing and
referring to a document produced during discovery. (Atkinson
Testimony, at 45; SCHC00374.)
Plaintiff did not provide the Court with Ms. Atkinson's
testimony. Defendant did attach the relevant portions of Ms.
Atkinson's testimony. (Atkinson Testimony, at 44-46, Def. Ex. B
attached to Defendant's Reply Brief.) Our review of the evidence
shows that Plaintiff mischaracterizes the substance of Ms.
Atkinson's testimony. Ms. Atkinson's testimony refers to the
ongoing process of addressing Ms. McAchren's performance and
attempting to assist her and discipline her. Ms. Atkinson's
testimony does not support Plaintiff's argument that Defendant
had made the decision to terminate her before she returned from
medical leave. Plaintiff's other evidence and arguments regarding
this issue similarly fail to distinguish the decision to
terminate from an ongoing disciplinary process. We find that there is no issue of disputed
fact about when the decision to terminate was made.
Plaintiff also generally complains that Defendant does not have
the proper documentation of complaints from patients, doctors, or
office staff. Ms. McAchren offers no record evidence to raise an
issue of disputed fact. In contrast, Defendant provides record
evidence of testimony, affidavits, and documentation to support
its position that patients, doctors, and staff have complained
about Ms. McAchren's performance. Defendant has also provided
testimonial evidence from Ms. McAchren's supervisors as to their
observations of her poor performance. Defendant has met its
burden of producing evidence in support of its motion. Plaintiff,
however, has failed to produce evidence to demonstrate the
existence of a material factual dispute.
The record evidence demonstrates that there is no genuine issue
of material fact that Ms. McAchren was not qualified for her
position when Defendant terminated her. Thus, we find that she
cannot establish a prima facie case of age discrimination, and
her claim will be dismissed.
"To establish a prima facie case of retaliation, a plaintiff
must show that: (1) he or she engaged in a protected employee
activity; (2) the employer took an adverse employment action
after or contemporaneous with the protected activity; and (3) a
causal link exists between the protected activity and the adverse
action." Weston v. Pennsylvania Department of Corrections,
251 F.3d 420, 430 (3d Cir. 2001) (citations omitted).
Defendant first notes that Ms. McAchren conceded that she had
never filed a workers' compensation claim thereby conceding that
she cannot establish the first prong of a prima facie case of
retaliation. (See McAchren Dep., at 31.) In response, Ms.
McAchren claims that once she filed an injury report with Defendant's Employee Health Service a
workers' compensation claim was automatically filed by Defendant.
Therefore, she argues that it is reasonable to "surmise that
Plaintiff's Supervisor" was aware of the claim. (Plaintiff's
Memorandum, at 3.)
Ms. McAchren does not support her argument with any record
evidence to show that any of the relevant supervisors involved in
this case were actually aware that a workers' compensation claim
was filed on her behalf. In contrast, Defendant has offered
record evidence from Ms. Potter and Ms. Atkinson to show that
they each were unaware that Ms. McAchren had filed an injury
report, or that a workers' compensation claim was filed on her
behalf automatically, until after Ms. McAchren was terminated.
(Potter Dep., at 35-36; Atkinson Dep., at 32-33.) Thus, even if
it was determined that Ms. McAchren engaged in protected activity
she is unable to show a causal link between the automatic filing
of a claim and her termination. Plaintiff thus cannot establish a
prima facie case of retaliatory discrimination, and her claim
will be dismissed.
Defendant also argues that even if Ms. McAchren can set forth a
prima facie case, she cannot show that she was terminated based
on her age or in retaliation for engaging in protected activity.
Defendant has presented evidence of a legitimate
non-discriminatory reason for her termination, i.e., Ms.
McAchren's poor work performance and related discipline coupled
with her failure to acknowledge or address her deficiencies.
Thus, Ms. McAchren must demonstrate that the proffered reason was
merely a pretext for unlawful discrimination.
A "plaintiff may defeat a motion for summary judgment (or
judgment as a matter of law) by pointing `to some evidence,
direct or circumstantial, from which a factfinder would
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.'" Jones v. School
District of Phila., 198 F.3d 403, 413 (3d Cir. 1999) (quoting
Fuentes v. Perskie, 32 F.3d 759, 764 (3d Cir. 1994) and
Sheridan v. E.I. DuPont de Nemours and Co., 100 F.3d 1061, 1067
(3d Cir. 1996) (en banc), cert. denied, 521 U.S. 1129
As stated previously, Ms. McAchren's argument is primarily a
blanket denial that she had any performance deficiencies at all.
Ms. McAchren's denial was set forth in her deposition:
Q. . . . Do you understand that the criticism of
your interaction with patients goes . . .
. . .
Q. . . . goes all the way back to `96 or `94 or
whatever the first document was.
A. No, these are not true.
Q. Well, your position is that none of this is
true; isn't that correct?
A. That's right. You're absolutely right.
Q. And that this criticism of you is constant from
1994 or `96, whatever the date of the first document
is, all the way through September of 2000, isn't it?
A. That's what it says.
Q. And you've never accepted that criticism, any of
that criticism, as being accurate?
A. That's correct.
Q. That's correct. You've never accepted any of the
criticism of your performance not only your
interactions with the patients but also how you did
coding or anything else as being correct; isn't that
A. That's correct.
(McAchren Dep., at 56-57.) While denying that she had any
performance deficiencies, Ms. McAchren also admitted that she had
no evidence to show that her supervisors were lying about the
reasons for her terminations:
Q. You don't have any facts that would show that
[the management of the hospital would] be lying if
they said that they recommended your termination
because, in the two weeks or three weeks, the 19 days
between your return frm surgery and the date of your
last day of work, they received at least two
complaints about you from patients?
A. Well, they received the three. That one, I know
is not true, and I don't have any facts other than
knowing myself that I didn't see the one on Hughes
because I never signed it one way or the other. I
have no complaint no problem signing these. I would
have signed it, you know, that I didn't agree with
it, but no, I don't have any facts, any proof.
(McAchren Dep., at 55.) She also was unable to cite to any evidence to show that three
younger individuals hired while she was on leave would not have
been hired even if she was not on leave:
Q.. . . . You've never accepted any of the
criticism of your performance not only your
interactions with the patients but also how you did
coding or anything else as being correct; isn't that
A. That's correct.
Q. But yet you have no fact that shows that any of
these decisions was based upon your age; isn't that
A. The only thing I have to say about that is, when
I was off, the seven weeks that I was off, three
girls under well, probably between the age of 20
and 30 were hired while I was off on my sick leave.
Q. You don't know that they wouldn't have been
hired if you were still there, do you?
A. I don't know.
(McAchren Dep., at 56-57.) In contrast, Defendant has explained
that one of the three younger individuals, Jodie Kwitoski, was
hired from an externship program as a part-time employee
replacing another part-time employee who had quit. (Potter Dep.,
at 29-30.) After a full-time employee quit, Ms. Kwitoski was
moved into the full-time position. (Potter Dep., at 30.) The
second of the three younger individuals, Mindy Olson, was hired
from the externship program to take Ms. Kwitoski's spot. (Potter
Dep., at 30-31.) Finally, the third individual, Amy Hodas, was
hired for a position at East Harbor Medical practice but not as a
replacement for Ms. McAchren. (Potter Dep., at 31.) Ms. McAchren
has failed to set forth any evidence to demonstrate that these
individuals would not have been hired even if she was not on
Likewise, Defendant has offered evidence that younger employees
were counseled and placed on action plans just as Ms. McAchren
was. (Potter Dep., at 21-24.) Two of the individuals voluntarily
left the practice and the third showed improvement. (Potter Dep.,
at 22-24.) Ms. McAchren has offered no evidence to contradict
Defendant's evidence. Moreover, no other employee of Defendant had as many complaints as did Ms. McAchren
or showed an inability or unwillingness to improve.
Defendant also offered evidence to show that of twenty-one
employees terminated by Defendant for disciplinary or performance
reasons in 2000, all of them were younger than Ms. McAchren.
(Affidavit of Johnie Atkinson, at ¶ 3, attached as Def. Ex. J.)
Fourteen of the twenty-one firings were under 40 years of age.
(Id.) None of the twenty-one employees who were fired had filed
a workers' compensation claim or reported a job-related injury in
the year prior to their termination. (Id. at ¶ 4.) Ms. McAchren
has presented no record evidence challenging these facts.
As discussed above, the record evidence from diverse sources
over several years shows that Ms. McAchren had longstanding
performance problems. Ms. McAchren's strongest piece of
documentary record evidence in support of a pretext argument is
Ms. Markle's testimony in December, 2001, that she did not
identify Ms. McAchren as the cause of a discourteous rude
telephone call. From that evidence Ms. McAchren must argue that
Ms. Danowski is lying when she testified that Ms. Markle told her
that the person who answered her call was Ms. McAchren, and when
she wrote that information on the Associate Communication Form
the day she took Ms. Markle's telephone call. However, Ms.
McAchren has no record evidence to support such an assertion.
Moreover, her assertion fails to acknowledge the legitimate
nondiscriminatory reasons Defendant had for terminating her.
Despite her assertions to the contrary the record evidence
overwhelmingly shows that she performed poorly for several years
garnering complaints from patients, co-workers, supervisors, and
doctors, and that she failed to acknowledge that she had any
performance problems. Defendant claims that it terminated Ms.
McAchren based solely on her poor performance, her continued
rudeness and unprofessional behavior towards patients, her unwillingness to admit to her deficiencies, and the absence of
improvement in her performance despite Defendant's efforts.
In addition, in light of the overwhelming other evidence in
support of Defendant's articulated reason for terminating Ms.
McAchren we cannot conclude that based on Ms. Markle's testimony
a factfinder could reasonably disbelieve that Defendant fired Ms.
McAchren because of her ongoing poor performance and refusal to
address her deficiencies. Likewise, we cannot conclude that a
factfinder could reasonably believe that an invidious
discriminatory reason was more likely than not a motivating or
determinative cause of Defendant's decision. Simply put, in light
of all the evidence no reasonable factfinder could believe Ms.
McAchren's claims that she had no performance deficiencies and
that the management of East Harbor Medical Practice is lying
about the reasons for her termination as a pretext to unlawfully
discriminate against her.
Ms. McAchren has failed to show that Defendant's reasons were a
pretext for an unlawful termination. We find that even if
Plaintiff could set forth a prima facie case she cannot rebut
Dependant's legitimate non-discriminatory reason for her
termination. Thus, summary judgment in favor of Defendant is
warranted because there is no genuine issue of material fact that
Defendant's actions were not a pretext for unlawful age
discrimination or to retaliate for filing a workers' compensation
Our review of the record evidence shows that there is no
genuine issue of material fact as to whether Ms. McAchren is
qualified for her position for purposes of establishing a prima
facie case of age discrimination. We also find that Ms. McAchren
cannot establish a causal link between the automatic filing of a
workers' compensation claim and her termination because there is
no genuine issue of material fact that none of the decision-making
supervisors were aware that Ms. McAchren had engaged in protected
activity. In addition, even if Ms. McAchren were able to set
forth a prima facie case, we conclude that the record evidence
establishes that there is no genuine issue of material fact that
Defendant terminated Ms. McAchren based on legitimate
non-discriminatory reasons. We thus conclude that summary
judgment is appropriate with regard to Ms. McAchren's age
discrimination and retaliation claims.
An appropriate Order will be entered. ORDER
AND NOW, to-wit, this 3rd day of November, 2005, after
careful consideration and for the reasons set forth in the
Opinion accompanying this Order, it is hereby ORDERED, ADJUDGED,
and DECREED as follows:
1. Defendant's Motion for Summary Judgment (Doc.
17) be and hereby is GRANTED as follows:
a. Summary Judgment is GRANTED as a matter of law
in favor of Defendant and against Plaintiff on
Plaintiff's age discrimination claims brought
pursuant to the Age Discrimination in Employment Act
(29 U.S.C. § 621 et seq.), and the Pennsylvania
Human Relations Act (43 P.S. 951, et seq.), said
claims are hereby dismissed.
b. Summary Judgment is GRANTED as a matter of law
in favor of Defendant and against Plaintiff on
Plaintiff's claim of wrongful discharge alleging that
Defendant terminated her in retaliation for filing a
workers' compensation claim in violation of
Pennsylvania public policy, said claim is hereby
dismissed. 2. Defendant's Motion to Have Certain of
Defendant's Statements of Undisputed Material Facts
Deemed Admitted (Doc. 26), be and hereby is Granted
insofar as it is consistent with the Opinion
accompanying this Order, and Denied in all other
3. The Complaint is dismissed and this case is
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