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Black v. Healthcare Services Group

August 13, 2007


The opinion of the court was delivered by: Nora Barry Fischer United States District Judge



This action is an age discrimination case filed under the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 623(a)(1), and the Pennsylvania Human Relations Act ("PHRA"), 43 Pa. Cons. Stat.Ann. § 955(a). Plaintiff, a former employee of Defendant Healthcare Services, alleges that she was fired due to Defendant discriminating based on her age in violation of the aforementioned statutes. Plaintiff seeks injunctive relief, compensatory damages, and costs. Docket No. 14, at 4.

Pending before this Court is Defendant's Motion for Summary Judgment. Docket No. 18. This Court has reviewed and examined the motion and all memoranda and exhibits that the parties have filed with respect to the motion. In addition, this Court heard limited argument on the motion at a status conference held on July 30, 2007. After careful consideration, and for the reasons set forth below, this court will DENY Defendant's motion.


The relevant facts stated herein have been taken from the parties' submissions. Unless otherwise stated, these facts are not in dispute.

From January 24, 2005 until she was fired on February 4, 2005, Plaintiff, Marlene Black, was employed as a housekeeper at Haven Crest Nursing Center ("Haven Crest") for Defendant, Healthcare Services Group, Inc. Docket No. 20, at 5, 10. Defendant had a service agreement with Extendicare Health Facilities, Inc. to provide housekeeping and laundry services to Haven Crest. Id. at 4. Although Plaintiff had previously worked at the Haven Crest facility, she was only employed by Defendant for two weeks at the time she was discharged.*fn1 Docket No. 24, at 3. At all times relevant to Plaintiff's complaint, Defendant also employed Account Manager Aaron Cooper and District Manager Brett Whittick at Haven Crest. Docket. No. 20, at 5.

Defendant's disciplinary policy required that all employee disciplinary actions be documented using a form known as the Employee Warning Notice ("EWN"). Id. at 6. Employees who were disciplined using the EWN form were required to sign the form acknowledging that the EWN was reviewed with them. Id. Under the signature line on the form appeared the statement, "[m]y signature indicates only that I have read this EWN and I have been given a copy. My signing does not mean I agree with it. I understand that my refusal to sign constitutes insubordination for which I will be discharged." Id.

During the course of her two week employment with Defendant, Plaintiff was issued several EWN's. Id. at 9. First, on February 2, 2005, Plaintiff was issued an EWN for losing three sets of keys. Id. Plaintiff signed the EWN as required, but she disagreed with the charge and wrote "I did not lose 3 sets of keys" on the form. Docket No. 22, at 21. Next, during a meeting on February 4, 2005, Plaintiff was issued an additional five EWNs.*fn2 Docket No. 20, at 9. During the meeting, she was asked by then District Manager Whittick several times to sign the EWNs, but she refused. Docket No. 21, at 19-20. Mr. Whittick told Plaintiff that her signature was only to acknowledge that she had read the EWNs and not that she agreed with them. Docket No. 20, at 9. Mr. Whittick also pointed out to Plaintiff the statement on the EWN form that informed employees if they refused to sign the form they would be discharged. Id. Despite this warning, Plaintiff refused to sign the five EWNs. Id. At the conclusion of the meeting, Plaintiff was given a sixth EWN that formally discharged her for refusal to sign EWNs. Id. at 10.

Defendant claims that the Plaintiff was discharged because she refused to sign the EWNs.*fn3

Id. at 11-12. However, during the course of the February 4 meeting, the Plaintiff claims Mr. Whittick made discriminatory comments about her age before he discharged her. Docket No. 23, at 3. She alleges that Mr. Whittick told her that she was "probably too old to perform the job" and that "[s]he is 58 years old and kind of set in her ways." Id. Michael Jurcevich, Plaintiff's union representative, was present during the meeting where Plaintiff was discharged. Docket No. 27, at 44. In his deposition testimony, Mr. Jurcevich confirms that Mr. Whittick made the alleged discriminatory comments. Id. at 50. Mr. Whittick, however, denies that he made any such comment. Docket No. 20, at 7. Account Manager Cooper, who was also present at the February 4 meeting, similarly denies that the alleged statements were ever made. Id.

Although the parties agree that Mr. Whittick was the decision maker in discharging the Plaintiff, in Plaintiff's Statement of Material Facts Precluding Summary Judgment, Docket No. 25, Black notes that there are inconsistencies in the witnesses' testimony as to what role Regional Manager Brian Mejia played in the decision. The Defendant, in response to an interrogatory, stated that Mr. Mejia had reviewed and approved the discharge decision. Docket No. 25, at 17. Mr. Mejia, however, claims that although he was made aware of the decision after it was made, he was not directly involved in Plaintiff's termination. Id. In his deposition testimony, Mr. Whittick claims that Mr. Mejia made sure he followed the company procedures when he fired Plaintiff. Id. Mr. Mejia, on the other hand, testified that he did not perform any checks to make sure that Mr. Whittick followed Defendant's procedures. Id. Finally, Defendant's in-house counsel, Timothy McCartney, testified that Mr. Mejia gave him the reasons for which Plaintiff was discharged. Id. at 18-19. However, Mr. Mejia denied that Mr. McCartney ever asked him to identify the reasons for Plaintiff's termination. Id. at 19.


Summary judgment shall only be issued "if 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). Summary judgment is appropriate if, after discovery, a party fails to prove an essential element of the claim on which it will bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). In a motion for summary judgment, "a district court should resolve all inferences, doubts and issues of credibility against the moving party." Smith v. Pittsburgh Gage & Supply Co. 464 F.2d 870, 874 (3d Cir.1972) (citing Adickes v. S. H. Kress & Co., 398 U.S. 144 (1970)) (emphasis added). Once ...

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