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Timm v. Manor Care

August 1, 2008


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


Presently before the Court for disposition is the MOTION FOR SUMMARY JUDGMENT, with brief in support, filed by Defendant, Manor Care, Inc., a/k/a HCR Manor Care d/b/a Heartland Home Healthcare and Hospice ("Manor Care") (Document Nos, 25 and 26, respectively), the brief in opposition filed by Plaintiff, Margaret Timm (Document No. 31), and the REPLY to Plaintiff's brief in opposition filed by Manor Care (Document No. 35).

The issues have been fully briefed and the matter is ripe for disposition. After a careful consideration of the motion, the filings in support and opposition thereto, the memoranda of the parties, the relevant case law, and the record as a whole, the Motion for Summary Judgment will be granted in part and denied in part.


Plaintiff, Margaret Timm ("Plaintiff"), brought this lawsuit on December 21, 2006, by the filing of a two-count Complaint against her former employer, Manor Care. Plaintiff alleges that Manor Care discriminated against her by subjecting her to a hostile work environment and that her employment was unlawfully terminated, both in violation of the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. §§ 621, et. seq.

Manor Care has filed the instant motion for summary judgment in which it contends that it is entitled to judgment as a matter of law on all of Plaintiff's claims because, inter alia, Plaintiff failed to timely file a Charge of Discrimination with the Equal Employment Opportunity Commission ("EEOC") with respect to her hostile work environment claims and that she is unable to establish a prima facie case of unlawful termination. In the alternative, Manor Care argues that Plaintiff has not adduced any evidence from which a reasonable factfinder could disbelieve Manor Care's articulated non-discriminatory reason for the termination of Plaintiff's employment and, thus, summary judgment should be granted.


As the law requires, all disputed facts and inferences are to be resolved most favorable to the Plaintiff.

In 1985, Plaintiff purchased a home health care agency known as Valley Home Health. At that time, Valley Home Health provided visiting nursing and home health aide services. Following the purchase, Plaintiff was the individual in charge of Valley Home Health.

Valley Home Health declared bankruptcy within six (6) months after Plaintiff's acquisition of the company. Valley Home Heath reorganized and, following bankruptcy proceedings, Plaintiff continued to operate the company.

In 1991, In Home Health, Inc. ("In Home Health") purchased Valley Home Health. In Home Health provided other product lines not previously provided by Valley Home Health and those new product lines were added to Plaintiff's portfolio of responsibilities. Specifically, In Home Health added services in the areas of hospice services, pharmacy, and private duty nursing. Following the acquisition of Valley Home Health by In Home Health, Plaintiff continued to have day-to-day responsibility for operating In Home Health in the Pittsburgh region. Plaintiff reported to Lisa Weber, Vice President of Operations for In Home Health. Ms. Weber remained Plaintiff's supervisor until shortly after In Home Health was purchased by Manor Care.

Near the end of 2000, Manor Care purchased In Home Health and began operating the agency under the name of Heartland Home Healthcare and Hospice ("Heartland"). At that time, Plaintiff's job title was Director of Operations and, later, Administrator. Plaintiff had overall day-to-day responsibility for Heartland's operations in the Pittsburgh market. Manor Care's company practice mandated that each business unit have a separate administrator. As such, over the next two (2) years, Heartland separated the hospice division from Plaintiff's responsibilities and hired Janet Diehl as the Director of the hospice division. Heartland also established a sales division in the Pittsburgh market, which it placed under the control of Bill Eder, and, later, Gary Geis.

Shortly after Manor Care purchased In Home Health, Deborah McMonagle ("McMonagle") became Plaintiff's supervisor and remained so until Plaintiff's employment was terminated in March 2003. Plaintiff retained responsibility over Heartland's home care division in the Pittsburgh market. The services provided by the home care division included: Medicare home nursing care; medicare home health aide services; physical, occupation and speech therapy; and social services provided by social workers.

Plaintiff's formal job description included a duty to monitor compliance with federal and state regulatory agencies and other certifying bodies. According to Plaintiff, however, McMonagle shifted Plaintiff's responsibility away from operations, which included compliance matters. Plaintiff was instructed to spend a minimum of 50% of her time on sales and marketing and the other half of her time was to be focused on the financial and collection activities of home care. Plaintiff was to monitor the financial performance of Heartland's Pittsburgh branch, including the number of patient admissions, the impact of same on revenue, and reimbursements.

Plaintiff testified in her deposition that McMonagle told her that she was not to work on the accreditation process. She was informed that Tara Magruda ("Magruda"), the Director of Professional Services, would have responsibility for compliance with accreditation standards and accreditation surveys conducted by the Commonwealth of Pennsylvania and by outside certifying bodies, including the Community Health Accreditation Program ("CHAP").*fn1 Magruda, who reported directly to Plaintiff, was to have responsibility for the daily operations of the nursing staff and supervisors, while Plaintiff was to focus on sales and finance activities. Les Anderson, an employee in the corporate office, was to keep Plaintiff informed with regard to survey preparations.

In December 2001, the Commonwealth of Pennsylvania conducted a survey of Heartland's Pittsburgh home care division. As the Administrator of that division, Plaintiff participated in an exit interview with the surveyors in which they reported that they had found deficiencies in numerous areas. Heartland recognized that certain deficiencies were issues experienced nationally, such as failure to document medication side effects, delayed house visits by outsourced physical therapists due to insufficient manpower, and the failure to document discussions between nurses and physical therapists. Also some of the deficiencies were due to the disruptions associated with Manor Care's purchase of In Home Health and the subsequent organizational changes. The Commonwealth surveyors advised Plaintiff that they would return to survey again and seek proof that the deficiencies had been corrected.

Following the December 2001 state survey, CHAP conducted its own survey of the Pittsburgh home care operations from January 21 through 25, 2002. The CHAP survey also noted certain deficiencies, although apparently none of the deficiencies were "serious" as the CHAP surveyors recommended recertification. As a result of the CHAP survey, Plaintiff prepared a plan of action to correct the stated deficiencies.

Immediately following the CHAP survey, McMonagle conducted Plaintiff's performance review. Plaintiff's rating with regard to the category of "Monitors compliance with federal and state regulatory agencies and other certifying bodies" was lowered.

In June 2002, the Commonwealth of Pennsylvania conducted another survey of the Pittsburgh home care division of Heartland. Again, the Commonwealth noted several deficiencies, although Plaintiff contends that none of the deficiencies were serious. Following the results of the June 2002 survey, Plaintiff received a telephone call from McMonagle on June 10, 2002 in which McMonagle expressed her dissatisfaction with the survey results.

CHAP returned to Heartland to do another survey of the Pittsburgh home care division on March 24-28, 2003. Plaintiff met with the surveyors routinely during their survey. On the final day of the survey, the surveyors conducted an exit interview with Heartland's management team, including Plaintiff. Heartland was cited for eight (8) standard level deficiencies , which required the preparation of a plan of correction.

On Friday, March 23, 2003, shortly after the conclusion of the CHAP exit interview, McMonagle called Plaintiff and expressed dissatisfaction with the survey results. McMonagle informed Plaintiff that she had the balance of the weekend to decide whether to resign or Heartland would terminate her employment on Monday morning. On Monday, March 31, 2003, Plaintiff spoke via telephone with McMonagle and Deborah Smith ("Smith"), Heartland's Regional Director of Human Resources, and informed them that she would not resign her employment. As a result, Heartland terminated her employment, effective immediately. Plaintiff was 59 years of age at the time of her employment was terminated.

McMonagle testified during her deposition that the outcome of the accreditation survey performed by CHAP in March 2003 was the sole basis for the termination of Plaintiff's employment. Plaintiff contends that terminating her employment because of the March 2003 accreditation survey was a pretext for age discrimination. According to Plaintiff, Heartland's corporate office, which played an active role in management, ultimately had responsibility for operations and for Heartland's compliance with CHAP standards. Plaintiff contends that McMonagle had shifted her job responsibilities away from operations, including such compliance matters and that Magruda, was given responsibility for compliance with accreditation standards and accreditation surveys.

Following the termination of Plaintiff's employment, McMonagle assigned Janet Diehl, the existing administrator for the Pittsburgh hospice division, to assume Plaintiff's responsibilities. Ms. Diehl, who was age 53 at the time, served as administrator for the home care and hospice divisions until August 2003. At that time, she was promoted to assume McMonagle's position as Director of Regional Operations, following McMonagle's promotion to General Manager. At that point, the home care Administrator position was assigned to Daniel Peek, who was in his 50's.

On September 24, 2003, Plaintiff filed a General Information Questionnaire with the Equal Employment Opportunity Commission ("EEOC"), in which she alleged both age and sex discrimination. On September 25, 2006, the EEOC issued a "right to sue letter." In this suit, Plaintiff alleges only age discrimination.

Allegations of Age Discrimination

Plaintiff contends that three Heartland employees, Smith, McMonagle, and Gary Geis, made age-related discriminatory comments to her, beginning in 2002.

As for Ms. Smith, Plaintiff alleges that Smith made age-related discriminatory comments to her during a dinner meeting between the two of them in January or February 2002. Plaintiff contends that at the dinner conversation, Smith stated, "don't [you] think that [you]'ve been doing home care long enough, isn't it time to get out of the business?" Another comment was, "Why would you want to stay working for Heartland after working for In Home Health? Don't you think it's time to start moving on?" Plaintiff testified at her deposition that during the dinner Smith made other statements which suggested that Plaintiff should ...

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