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Elston v. UPMC-Presbyterian Shadyside

June 10, 2008


The opinion of the court was delivered by: Terrence F. McVerry United States District Court Judge


Now pending before the Court is DEFENDANT'S RENEWED MOTION FOR JUDGMENT AS A MATTER OF LAW OR, IN THE ALTERNATIVE, FOR A NEW TRIAL (Document No. 76), to which Plaintiffs have filed a brief in opposition (Document No. 77). Also pending are Plaintiff's MOTION FOR PREJUDGMENT INTEREST (Document No. 73), PLAINTIFF'S MOTION FOR ATTORNEYS' FEES AND EXPENSES (Document No. 74), and PLAINTIFF'S SUPPLEMENTAL REQUEST FOR ATTORNEYS' FEES AND EXPENSES (Document No. 84),with exhibits in support. Defendant UPMC-Presbyterian Shadyside ("UPMC") has filed briefs in response to Plaintiff's fee petition and supplemental petition (Document Nos. 79, 87). The matters are ripe for disposition.

Factual and Procedural Background

Todd Elston began working for UPMC in 1984 as a housekeeper. He received several promotions and in January 2003, he was promoted to Manager of Engineering and Maintenance, reporting to Ed Dudek. Dudek and Elston's relationship deteriorated in late 2004. In March 2005, Elston met several times with J.W. Wallace, Senior Director of UPMC's Office of Diversity, to complain about alleged race discrimination. Plaintiff presented evidence that Dudek viewed the involvement of Wallace as tantamount to "ringing a racial bell that could not be un-rung." On April 5, 2005, Elston met with Ed McGinley, Director of Employee Relations and in-house counsel, regarding alleged discrimination. On April 6, 2005, Jim Terwilliger, Vice President of Operations, met with Elston and Dudek.

On April 7, 2005, an incident occurred which UPMC cited as the basis for its decision to terminate Elston (the "April 7 Incident"). At the end of the workday, Dudek and Elston left work at approximately the same time. There was an encounter between them on the steps of the building which was recorded on videotape. As described by Elston, he was walking beside Dudek and told Dudek that he showed favoritism, had forgotten where he came from, and made Elston "feel like an outside Negro." According to Dudek's written report, he "had a very confrontational incident with Todd that ended with him being very aggressive, verbally abusive, physically threatening and extremely inappropriate." Dudek described Elston as blocking his path, shouting obscenities and waving his finger in Dudek's face.

Michael Payne of Human Resources conducted an investigation. Payne reviewed the video, with Dudek providing commentary. Elston was not given a similar opportunity. On April 28, 2005, Payne submitted his report. The summary states: "The video appears to show that Todd was confrontational and aggressive in his demeanor." Payne expressed his concern that Elston had publicly displayed insubordiantion and recommended: "We need to discuss next steps as a group; however, I believe that we are left with no option but to terminate Todd Elston's employment." Payne then met with Terwilliger, McGinley and Louis Goodman, Vice President of Human Resources. After discussion, the group decided to offer Elston a severance package.

On June 3, 2005, Payne and McGinley met with Elston, informed him that he was being terminated for insubordination due to the April 7 Incident, presented the severance package, and demanded a response within seven days. When Elston did not accept the severance package, Payne sent a letter of termination dated June 3, 2005. Prior to completion of the investigation, on April 12, 2005, Dudek sent an email to Terwilliger which stated: "Thanks for supporting me on this. I really do appreciate it."

On October 23, 2007, prior to trial, the Court issued a Memorandum Order which granted UPMC's motion for summary judgment on all legal theories except for retaliation. In its decision, the Court explained as an initial matter that pursuant to the "subordinate bias" theory, Dudek must be considered to be a decision-maker. In Abramson v. William Patterson College of New Jersey, 260 F.3d 265 (3d Cir. 2001), the Court of Appeals held: "it is sufficient if those exhibiting discriminatory animus influenced or participated in the decision to terminate." Id. at 286 (emphasis added). The term "cat's paw" involves a situation in which an allegedly biased subordinate who lacks decision-making authority "uses the formal decisionmaker as a dupe in a deliberate scheme to trigger a discriminatory employment action." EEOC v. BCI Coca-Cola Bottling Co. of Los Angeles, 450 F.3d 476, 484 (10th Cir. 2006), cert. dismissed 127 S.Ct. 1931 (2007) ("BCI"). The Memorandum Order stated:

Applying the Abramson standard to the facts of this case, it is apparent that Dudek must be considered to be among the decision-makers. There is substantial evidence that Dudek participated in the investigation of the incident. He submitted a statement and provided oral commentary on the videotape of the April 7 Incident to Payne. Elston, who was not given an opportunity to provide commentary on the videotape, disputes Dudek's description of the incident. Terwilliger stated that he was the ultimate decision-maker, but that he had Dudek's input with regard to that decision. Terwilliger Dep. at 27. In his April 12, 2005 email to Terwilliger, Dudek stated: "Thanks for supporting me on this.

I really do appreciate it." In sum, a reasonable jury could conclude that Dudek influenced or participated in the decision to terminate Elston.

The Court determined that summary judgment could not be granted on the retaliation claim. The Court explained that Elston had established a prima facie case, that UPMC had articulated a legitimate, non-discriminatory reason for the discharge (i.e., the April 7 Incident), and that a reasonable jury could conclude that the April 7 Incident was a pretext for retaliation against Elston for making complaints about discrimination. The Court noted the suggestive temporal proximity, as Elston's complaints to Wallace, McGinley, Terwilliger and Dudek occurred just days prior to his suspension, even though the ultimate termination letter was dated June 3, 2005. The Court concluded:

Although the occurrence of the April 7 Incident is certainly a strong argument in UPMC's favor, a jury could conclude that the decision-makers' interpretation of and reaction to that incident was influenced by Elston's complaints about discrimination. A plaintiff need not prove that retaliation was the sole reason for the decision, although he must prove that it was a "determinative factor" in the employment decision, in that he would not have been terminated but for his protected activity. Watson v. SEPTA, 207 F.3d 207, 215 (3d Cir.2000); Caver v.

City of Trenton, 420 F.3d 243, 267 (3d Cir.2005). In summary, Elston can satisfy the elements of a prima facie case for Title VII retaliation. Moreover, viewing the record in the light most favorable to Elston, a jury could conclude that he would not have been terminated but for his complaints to management about alleged discriminatory treatment.

Accordingly, a trial was held on a single theory -- retaliation. On March 26, 2008, a jury returned a verdict in favor of Elston against UPMC and awarded damages in the amount of $146,050.00.

Motion for Judgment as a Matter of Law

UPMC seeks judgment as a matter of law or a new trial pursuant to Federal Rules of Civil Procedure 50(b) and 59. UPMC recognizes that such relief should be granted sparingly, and that the Court must draw all reasonable and logical inferences in the non-movant's favor. Lightning Lube, Inc. v. Witco Corp., 4 F.3d 1153, 1166 (3d Cir. 1993); Goodman v. Pa. Turnpike Comm'n, 293 F.3d 655, 665 (3d Cir. 2002). A Rule 50(b) motion should be granted where "the record is critically deficient of the minimum quantum of evidence" required to support the verdict. Gomez v. Allegheny Health Servs., Inc., 71 F.3d 1079, 1083 (3d Cir.1995).

UPMC recites a litany of facts that it contends are undisputed to support the proposition that Elston was terminated after an independent investigation of the April 7 Incident. UPMC contends that Plaintiff failed to establish the "causal connection" element of his prima facie case and failed to adduce evidence of pretext. Plaintiff, not ...

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