The opinion of the court was delivered by: Hon. Nora Barry Fischer
This is an employment discrimination action. Plaintiff Patricia White ("Plaintiff") alleges that Defendant Community Care, Inc. ("Defendant"), for whom she worked from 2004 until 2007, discriminated against her based upon her race and retaliated against her in violation of Title VII, 42 U.S.C. 2000e-1, et seq., 42 U.S.C. § 1981, and the Pennsylvania Human Relations Act, 43 Pa. Stat. § 951, et seq. ("PHRA"). Before the Court is Defendant's Motion for Summary Judgment pursuant to Federal Rule of Civil Procedure 56. After careful considerationand for the reasons that follow, Defendant's Motion is denied.
A. Local Rule 56.1 Violation
At the outset, the Court notes Defendant's violation of Rule 56.1(c) of the Local Rules of this Court ("L.R. 56.1(c)").*fn1 In support of its Motion for Summary Judgment, Defendant filed a Concise Statement of Material Facts. (Docket No. 67). In Response, Plaintiff filed her Concise Statement of Material Facts Precluding Summary Judgment (Docket No. 69) and her Response to Defendant's Concise Statement of Material Facts (Docket No. 70). Defendant has failed to respond to the additional facts alleged by Plaintiff in her Concise Statement of Material Facts Precluding Summary Judgment (Docket No. 69). Local Rule 56.1(E) ("L.R. 56.1(E)") sets forth the consequences for failure to comply with L.R. 56.1 (c) as follows: alleged material facts set forth in the moving party's Concise Statement of Material Facts or in the opposing party's Response to Defendant's Concise Statement of Material Facts, which are claimed to be undisputed, will for the purposes of deciding the motion for summary judgment be deemed admitted unless specifically denied or otherwise controverted by a separate concise statement of the opposing party.
W.D.Pa.L.R. 56.1(E) (2008). Thus, for the purposes of the instant motion, the facts, as set forth in the Plaintiff's Concise Statement of Material Facts Precluding Summary Judgment, (Docket No. 69)are deemed admitted by the Defendant, in accordance with L.R. 56.1(E). See Janokowski v. Demand, Civ. Action No. 06-00618, 2008 WL 1901347, at *1 (W.D.Pa. April 25, 2008) (Defendant's statement of material facts were deemed admitted for the purpose of summary judgment because of Plaintiff's violation of Local Rule 56.1(c)); see also GNC Franchising LLC v. Kahn, Civ. Action Nos. 05-1341; 06-00238, 2008 WL 612749, at *1 (W.D.Pa. Mar. 3, 2008) (The facts set forth in Plaintiff's statement of facts were deemed admitted by Defendants due to Defendant's violation of Local Rule 56.1(E)); Ferace v. Hawley, Civ. Action No. 05-1259, 2007 WL 2823477, at *1 (W.D.Pa. Sept. 26, 2007) (citing Benko v. Portage Area School Dist., Civ. Action No. 03-233J, 2006 WL 1698317 (W.D.Pa. June 19, 2006)).
The Court has gleaned the following factual background from the parties' summary judgment filings.
Defendant provides in-home health services to various clients throughout Western Pennsylvania by providing qualified nurses to treat people in their residences, as needed, and staffs nurses in different types of facilities, including nursing homes. (Docket No. 67 at ¶ 1, Docket No. 70 at ¶ 1). Defendant is a Pennsylvania-licensed and Medicare- certified home health agency. (Docket No. 71-4 at 12). Plaintiff, an African-American, is a licensed Practical Nurse and a Respiratory Therapist who has been employed by Defendant since May of 2004. (Docket No. 67 at ¶ 2, Docket No. 70 at ¶ 2; Docket No. 69 at ¶ 5). As a pediatric staff nurse, Plaintiff has provided in home skilled nursing services to the clients of Defendant, special needs children and their families. (Docket No. 69 at ¶ 7). By all accounts, Plaintiff was "a very valuable employee," a good nurse, had perfect attendance, and Defendant never had any problem with her work. (Docket no. 69 at ¶ 11).
Defendant assigns case managers to individual clients, who are responsible for managing the assigned nurses and act as an intermediary between the staff nurse and the administrator. (Docket No. 69 at ¶ 8). At all relevant times, Susan Watson ("Watson") was Plaintiff's case manager, while Wasil Waleski ("Waleski") was Defendant's administrator who oversaw the company as a whole. (Docket No. 69 at ¶¶ 9-10).
Defendant was contacted by Mark and Ann Caton to provide in-home treatment for their daughter, Marilyn Caton, a child with special needs and respiratory problems. (Docket No. 69 at ¶ 12). The position was scheduled to start when Marilyn was released from the hospital. Id. On January 15, 2007, Plaintiff was offered the job by her supervisor, Watson. (Docket No. 67 ¶ 8, Docket No. 70 at ¶ 8, Docket No. 69 at ¶ 12). On that same day, she accepted the offer, and expressed to Watson that she was excited about the opportunity because the Catons lived on her street; thus, she would not have to travel far for work. (Docket No. 67 at ¶ 8, Docket No. 69 at ¶ 12, Docket No. 70 at ¶ 8);(Docket No. 69 at ¶ 13).
After Plaintiff accepted the position in the Caton household, Watson made a schedule of days and times that Plaintiff would work for the Catons, and provided the family with that information. (Docket No. 67 at ¶ 9, Docket No. 70 at ¶ 9). After reviewing the tentative schedule, Watson claims that Seth Caton, Mark and Ann's oldest son, called to inform her that the Caton family did not want Plaintiff to provide nursing services to Marilyn because Plaintiff was "not a nice person and was not nice to them when they were children." (Docket No. 67 at ¶ 11, Docket No. 69 ¶ 14). However, Seth Caton denies making these statements. (Docket No. 70 at ¶ 11; Docket No. 69 at ¶ 30).
Additionally, Seth and Ann Caton both deny making any sort of statement to Watson about Plaintiff not being a nice person. (Docket No. 69 at ¶¶ 30, 31). Instead, Ann and Seth Caton testified they told Watson they did not want Plaintiff in their home because she was their neighbor. (Docket No. 69 at ¶ 32). To the contrary, Watson claims that she was never informed that the Catons did not want Plaintiff in their home because she was a neighbor. (Docket No. 69 at ¶ 33). However, Watson's assistant, Alisha Giannattasio, testfied that Watson told her that the Catons did not want Plaintiff in the house because she was a neighbor. (Docket No. 69 at ¶ 34). According to Watson, a client and a nurse being neighbors is not a valid reason to refuse a nurse's services; therefore, such a request would not be honored. (Docket No. 69 at ¶ 35).
On January 22, 2007,*fn3 before Plaintiff was to start her new position, Watson contacted her by phone to inform her that she was no longer assigned to the Caton family. (Docket No. 67 at ¶ 12; Docket No. 70 at ¶ 12; Docket No. 69 at ¶ 14). During this conversation, Plaintiff asked why she was no longer assigned to the Catons, whereupon Watson informed her that Seth Caton told her that Plaintiff was "not a nice person to them when they (Caton children) were children." (Docket No. 67 at ¶ 13, Docket No. 70 at ¶ 13). According to Plaintiff, Watson initially relayed that the reason the Catons did not want Plaintiff to work in their house was because she not a nice person to them when they were children. However, Watson later admitted that the actual reason was that the Catons did not want Plaintiff in the house because she was black. (Docket No. 70 ¶ 13; Docket No. 69 at ¶¶ 18, 19).
The parties dispute the substance and sequence of what transpired between Plaintiff and Watson during the remainder of this phone conversation. According to Defendant, Plaintiff believed that the Catons did not want her in their house because she was not nice to the children. (Docket No. 67 at ¶ 14). She then stated to Watson that she is a nice person and the true reason was "because she is black." (Id.). In response, Watson said to Plaintiff that "no one has said that. That's not what the Catons are saying." (Docket No. 67 at ¶ 14; Docket No. 67 at 15). Plaintiff, however, alleges that she did not believe it was true that Seth Caton did not want her in the house because she was not a "nice person," and that it was not Plaintiff, but Watson, who said that the Catons did not want her in the house because she was black. (Docket No. 70 at ¶ 14, Docket No. 69 at ¶ 19).
Plaintiff also contends that Watson said she had not initially wanted to tell her the real reason, that is, because she was black, because she did not want to hurt her feelings. (Docket No. 69 at ¶ 22). Additionally, Plaintiff alleges that Watson never told her the Catons did not make racist remarks. (Docket No. 69 at ¶ 24).
During the same conversation, Plaintiff informed Watson that the reason given by Defendant and the Catons was discriminatory and prejudicial, and that she would seek legal action. (Docket No. 69 at ¶ 20). Later that day, Plaintiff placed notes of the conversation on her calendar, in which she transcribed that "SW called denied job. Seth (son) & mom said not a nice per. Didn't treat children nice. Not true. What is real reason why? SW told me because I'm black. No other reason." (Docket No. 69 at ¶ 25). Plaintiff explained that her notes reflect that Watson was "asking...why and then the real reason [Watson] tells me, because I'm black." (Id.).
During the same conversation, Defendant claims that Watson offered Plaintiff two other job opportunities in the Uniontown Area: one with the Beal family and one with Watson's own child. (Docket No. 67 at ¶¶ 16, 17). Plaintiff denies that she was ever offered these positions or any positions in the Uniontown area during that conversation or at any later time. (Docket No. 70 at ¶¶ 16-17). In addition, Watson's assistant denies that Plaintiff was offered the Beal position. (Docket No. 70 at ¶ 17). Plaintiff also points out that Watson's handwritten notes, taken after January 17, 2007, make no mention of Watson offering Plaintiff a position to work with her own child. (Docket No. 70 at ¶ 17).
2. Plaintiff's Replacements
As to the Caton position, Defendant replaced Plaintiff with two nurses, Marsha Balaban and Wanda Nicholson, neither of whom are African American. (Docket No. 69 at ¶¶ 36-37). In fact, since January 27, 2008, out of twenty one nurses that Defendant has offered and the Catons have considered, only one was African American. (Docket No. 69 at ¶38). This nurse was Jennifer Key, who worked for the Catons for about three months beginning in December of 2007. (Docket No. 69 at ¶ 39). Her placement in the Caton home occurred after the instant lawsuit was filed. (Docket No. 69 at ¶ 40).
3. Defendant's Discrimination Policies
Defendant has two policies against discrimination; one is found in a handbook distributed to all employees, while the other is included in a general employee grievance procedure that all Medicare-licensed agencies are required to use. (Docket No. 69 at ¶ 41). The handbook identifies Waleski as the individual whom employees should contact regarding discrimination complaints. (Docket No. 69 at ¶ 42). On the other hand, the Medicare policy states that employees are to report complaints to their immediate supervisors. (Docket No. 69 at ¶ 43). According to Waleski, the Medicare policy, which employees do not possess, trumps the handbook, which the employees do possess. (Docket No. 69 at ¶ 44). Thus, employees are to report discrimination first to their immediate supervisors. (Docket No. 69 at ¶ 44).
Defendant's handbook policy prohibits discrimination on the basis of race both by non-employees and employees. (Docket No. 69 at ¶¶ 45, 46). Thus, a client's refusal to allow a nurse in the home because of race would fall under said policy. (Docket No. 69 at ¶ 47). Further, if a client refused a nurse's care based on race, Defendant would have to refuse service to the client. (Docket No. 69 at ¶ 48). Additionally, once a complaint has been made, Defendant has a duty to investigate the claim. (Docket No. 69 at ¶ 48). For example, once a complaint has been made to a supervisor, the supervisor is to notify Waleski regarding same. (Docket No. 69 at ¶ 49). Waleski then determines whether discrimination did, in fact, occur. (Docket No. 69 at ¶ 50).
Plaintiff claims that she tried to call Waleski several times about her complaint of discrimination, but that he never returned her call. (Docket No. 69 at ¶ 52). Waleski testified that he recalled getting a voice mail from Plaintiff, after learning that she made allegations of discrimination to Watson. (Docket No. 69 at ¶ 54). Waleski did not personally return Plaintiff's call, but, instead, asked Watson to return the call for him. (Docket No. 69 at ¶57). Watson never returned the call for Waleski. Indeed, Watson and Plaintiff have not spoken since the call in late January of 2007. (Docket No. 69 at ¶ 58).
Watson alleges that Plaintiff never made a formal complaint of discrimination, however, she did admit that Plaintiff claimed racial discrimination during the previously described phone call. (Docket No. 69 at ¶ 59). On the other hand, Waleski believes that Plaintiff made an allegation of discrimination. (Docket No. 69 at ¶ 60). Waleski instructed Watson to write a note to the human resources department about Plaintiff's complaint. (Docket No. 69 at ¶ 63). Watson documented her conversation with Plaintiff, stating that Seth Caton said the family did not want White as a nurse because she was not a nice person and did not treat them nicely when they were children. She also wrote "I relayed this info to Mrs. White, she felt [the] family was being racist and prejudice [sic] against ...