The opinion of the court was delivered by: Judge Jones
THE BACKGROUND OF THIS MEMORANDUM IS AS FOLLOWS:
Pending before the Court is Defendants', Pennsylvania Department of Public Welfare, Estelle Richman and Dr. Ann Shemo, Motion for Summary Judgment ("the Motion") (doc. 36) filed on October 6, 2006.
For the following reasons, the Motion (doc. 36) will be granted.
Plaintiff Samuel Clayton, Jr., M.D.("Plaintiff" or "Clayton") commenced this action by filing a complaint (doc. 1) on April 15, 2005. Thereafter on April 22, 2005, Plaintiff filed an amended complaint (doc. 3), to which Defendant filed an answer (doc. 16) on July 6, 2005.
In Count I of the complaint, Plaintiff claims that he was discriminated against on the basis of his race in violation of 42 U.S.C. § 1981. In Count II of the complaint, Plaintiff claims he was discriminated against on the basis of his race as well as retaliated against for his complaints of discriminatory treatment in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2001 et seq. In Count III of the complaint, Plaintiff claims he was discriminated and retaliated against in violation of the Pennsylvania Human Relations Act, 43 Pa. C. S. § 951 et seq. In Count IV of the complaint, Plaintiff claims that he was retaliated against as a consequence of his internal and EEOC complaints, in violation of §1981. In the prayer for relief, Plaintiff seeks judgment for back pay, lost compensation, attorney fees and monetary relief, plus costs and interest.
Following the close of discovery, the Defendants filed the instant Motion, which was fully briefed by the parties. The Motion is therefore ripe for our review.
Summary judgment is appropriate if "there is no genuine issue as to any material fact and . . . the moving party is entitled to judgment as a matter of law."
FED .R. CIV. .P. 56(c); see also Turner v. Schering-Plough Corp., 901 F.2d 335, 340 (3d Cir. 1990). The party moving for summary judgment bears the burden of showing "there is no genuine issue for trial." Young v. Quinlan, 960 F.2d 351,357 (3d Cir. 1992). Summary judgment should not be granted when there is a disagreement about the facts or the proper inferences which a fact finder could draw from them. See Peterson v. Lehigh Valley Dist. Council, 676 F.2d 81, 84 (3d Cir. 1982).
Initially, the moving party has a burden of demonstrating the absence of a genuine issue of material fact. Celotex Corporation v. Catrett, 477 U.S. 317, 323 (1986). This may be met by the moving party pointing out to the court that there is an absence of evidence to support an essential element as to which the non-moving party will bear the burden of proof at trial. Id. at 325.
Federal Rule of Civil Procedure 56 provides that, where such a motion is made and properly supported, the non-moving party must then show by affidavits, pleadings, depositions, answers to interrogatories, and admissions on file, that there is a genuine issue for trial. Fed.R.Civ.P. 56(e). The United States Supreme Court has commented that this requirement is tantamount to the non-moving party making a sufficient showing as to the essential elements of their case that a reasonable jury could find in its favor. Celotex Corp., 477 U.S. at 322-23.
It is important to note that "the non-moving party cannot rely upon conclusory allegations in its pleadings or in memoranda and briefs to establish a genuine issue of material fact." Pastore v. Bell Tel. Co. of Pa., 24 F.3d 508, 511 (3d Cir. 1994) (citation omitted). However, all inferences "should be drawn in the light most favorable to the non-moving party, and where the non-moving party's evidence contradicts the movant's, then the non-movant's must be taken as true." Big Apple BMW, Inc. v. BMW of N. Am., Inc., 974 F.2d 1358, 1363 (3d Cir. 1992), cert. denied, 507 U.S. 912 (1993) (citations omitted).
Still, "the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986)(emphasis in original). "As to materiality, the substantive law will identify which facts are material." Id. at 248. A dispute is considered to be genuine only if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id.
This is an action brought by a former employee of the Pennsylvania Department of Public Welfare claiming that he was discriminated against because of his race and retaliated against for filing a PHRC complaint. Plaintiff is an African-American physician who was employed part-time from 1985 until his retirement on September 26, 2003 at Harrisburg State Hospital, a mental health facility operated by the Department. Defendant Pennsylvania Department of Public Welfare is an agency of the Commonwealth of Pennsylvania that was responsible for the operation of the Harrisburg State Hospital at all times relevant to the instant action. Defendant Estelle Richman is and has been the Secretary of Public Welfare since 2003. Dr. Ann Shemo was the Medical Director at Harrisburg State Hospital from March 2000 until September 2004. She supervised Plaintiff from March 2000 until he retired in September 2003. (Rec. Doc. 37, ¶¶1-4). The hospital closed on June 30, 2006.
Plaintiff filed a charge with the Pennsylvania Human Relations Commission on February 14, 2001. In that charge, he complains that the hospital changed his work schedule. On March 6, 2001, Plaintiff filed an amended charge with the EEOC. In that charge, he complained that he did not receive certain bonuses; that he received less on-call time than other physicians; that the hospital threatened to furlough him; that the hospital placed his mailbox in an isolated place and that his work schedule had changed. (Rec. Doc. 37, ¶¶4-6). Defendants allege that the Plaintiff never instructed the EEOC to cross-file the amended charge with the PHRC, and there is no evidence that the claims were ever cross-filed. (Rec. Doc. 37, ¶7).
Our recitation of the facts will now turn to a summary of various incidents relevant to our analysis which Plaintiff alleges were discriminatory.
Defendants allege that since at least the mid 1980's, on-call time for physicians at Harrisburg State Hospital was prorated based on the number of hours worked by the physicians. (Rec. Doc. 37, ¶8). Plaintiff denies this allegation entirely. Plaintiff alleges that from 1985 through 1999 there was an "institutional inability to obtain voluntary 'on call' coverage from time to time. Thus initially (1985-1997) 'on call' demands were made on a 'voluntary' basis" and the part-time/full-time status had nothing to do with the process. Plaintiff further alleges that he was not "invited" to participate in the process. (Rec. Doc. 53, ¶9).
Defendants allege that Clayton began to receive on-call hours in July 1997, but about after a month after he began on-call, his hours began to decrease. (Rec. Doc. 37, ¶¶9, 11-12). Defendants allege that on-call time was briefly equalized between full-time and part-time physicians from August 23, 1999 to October 1999, after which it was reduced to 50% for part time doctors. (Rec. Doc. 37, ¶14). Dr. Davis and Dr. Nwokeji tried to accommodate Dr. Clayton's desire for more on-call time, but the physicians' union opposed the accommodation on the ground that a greater share of the on-call hours should go to the full-time physicians. (Rec. Doc. 37, ¶15). Defendants allege that thereafter, the hospital reinstated the earlier policy of prorating on-call time based on whether the employee was full or part-time. (Rec. Doc. 37, ¶17).
In June 2000, Plaintiff was advised that he would be "bumped" out of his position by another physician as a result of a furlough. At the last minute, he was advised that he would not be furloughed, and two other physicians, neither of whom were African-American, were furloughed. (Rec. Doc. 37, ¶¶ 19-22).
On July 25, 2000, Plaintiff's mailbox was moved to an isolated area for about a month. The mailbox was moved due to a theft of mail in the Eaton Building, where his mailbox had been previously located. Plaintiff was displeased that his mailbox had not been moved to the Petry Building, where other doctors' mailboxes were located. After Plaintiff returned from an extended leave, he discovered that all of the medical doctors' mailboxes had been moved to the Administrative Building, where his new mailbox location was. (Rec. Doc. 37, ¶¶25-28).
In the summer of 2000, the Health Care Financing Administration determined that Harrisburg State Hospital no longer met the requirements for participation as a provider in the Medicare program. In response, the hospital management decided to implement a standardized hospital-wide program schedule, effective September 18, 2000. Under the new schedule Plaintiff and other physicians were required to schedule their work between specified hours from 7:30 a.m. and 4:30 p.m. The new schedule applied to all medical and psychiatric doctors, as well as social workers and management employees, including personnel staff. (Rec. Doc. 37, ¶¶ 29-35).
Early in October 2001, Plaintiff discovered that one of the desks in his office was missing. He later received a note that it had been removed to be restored and that it would not be returned to him. Plaintiff talked to Dr. Montecalvo and was able to get the desk back. Plaintiff testified that he had no evidence that the incident was racially motivated beyond his assertion that it was disrespectful. (Rec. Doc. 37, ¶¶ 41-45).
In the fall of 2001, Superintendent Bruce Darney decided to move all of the physicians offices into the Vista Dome Building. The building had just been air- conditioned and Darney, for management purposes, wanted all the physicians in the same building. When the doctors were moved, Plaintiff was originally assigned to share Room 217 with Phillip Grem, another part-time doctor. An accommodation was made, however, to allow Dr. Grem to share the room with his wife, Judy Grem, who was also on the staff. Plaintiff testified that Dr. Shemo told him that he could then have Room 207, which was a larger room, but then changed her mind and told him to take a room on the third floor. Dr. Shemo testified that Room 207 had been allocated to psychiatric physicians, and she was not at liberty to give the room to Plaintiff. Ultimately, Dr. Venbrux, a full-time Asian physician, from Thailand, was assigned Room 207. Other physicians who were not African-American were also assigned to the third floor and were not given Room 207, including a white physician and two Asian physicians. (Rec. Doc. 37, ¶¶46-52).
Board Certification Bonus, Fiscal Year 1999-2000 To be eligible for a specialty board certification payment, Management Directive 535.2 Amended required a doctor to be board certified by June 30 of a given year. Under the directive, a doctor must submit evidence of his certification before June 30. Plaintiff did not sit for the examination to become board certified until July 2000, and did not receive a bonus for 1999-2000 fiscal year.
On January 6, 2001, Plaintiff became eligible for a step cash payment. Plaintiff received a step cash payment in that year, however he did not receive one in January 2002 or January 2003. The record was reviewed and an inputting error made on January 29, 2002 was discovered that had prevented the payment from being made. Both payments were subsequently made on September 26, 2003. (Rec. Doc. 37, ¶¶58-60).
On February 21, 2003, Plaintiff filed a grievance with the Department. Barbara Casey, the designee of the Chief Executive Officer of the Hospital responded on March 12, 2003. Plaintiff filed another grievance on March 25, 2003. The Chief Medical Officer of the Hospital ...