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Waris v. HCR Manor Care

February 10, 2009


The opinion of the court was delivered by: Baylson, J.


Presently before this Court are parties' Cross-Motions for Summary Judgment in an action involving a failure to hire employment discrimination claim on the basis of age, race, and national origin. For the following reasons, Plaintiff's motion will be DENIED and Defendant's motion will be GRANTED.

I. Factual Background

A. Plaintiff's Application to Administrator Position

Plaintiff was 60 years old at the time of the incident in question and is of Indian origin and Asian-Indian race. (Am. Compl. ¶ 26.) Defendant Heartland Home Health Care Services, Inc. (hereinafter "Heartland") sought applicants for its vacant Administrator position at its Plymouth Meeting, Pennsylvania office. (Def.'s Statement Undisputed Fact ¶ 1.) As its name implies, Defendant is in the business of supplying home health care services. The Administrator is responsible for overall management of office, including, but not limited to, setting goals, objectives, and policies; identifying community health needs; developing and evaluating programs to meet these needs; overseeing the branch budget; monitoring compliance with regulatory agencies and other certifying bodies; and keeping local staff informed of organization, community, and industry trends. (Pl.'s Mot. Summ. J. Ex. X.) Plaintiff applied to the position through an on-line application in March 2006 after seeing an ad for the position in the Philadelphia Inquirer. (Def.'s Statement Undisputed Fact ¶ 2.) Defendant asserts that the application did not ask about age, race, or national origin. (Id. at ¶ 4.)*fn1

Plaintiff also emailed his resume to Defendant's Senior Recruiter Susan Obriot both in March and in May 2006. (Id. at ¶ 6.) Plaintiff's resume did not list his age, race, or national origin. (Pl.'s Mot. Summ. J. Ex. A.) However Plaintiff asserts his minimum age could be deduced from his resume based on when he completed his first Master's Degree. (Pl.'s Statement Undisputed Fact ¶ 12.) Plaintiff also spoke with Obriot on the phone two or three times in 2006 about the status of his application. (Def.'s Statement Undisputed Fact ¶ 12.) During these calls, Plaintiff was not asked, nor did he disclose, his age, race, or national origin. (Id. at ¶ 13.) However, Plaintiff asserts that Obriot could detect from these calls that his national origin was non-native U.S. because he speaks with an accent. (Pl.'s Statement Undisputed Fact ¶ 13.)

Defendant asserts that Obriot was responsible for pre-screening applicants for the position and making sure that they met the minimum qualifications. (Def.'s Statement Undisputed Fact ¶ 16.) Plaintiff does not admit or deny this fact, but disputes its credibility. (Pl.'s Rebuttal Def.'s Statement Undisputed Fact ¶ 16. ("Plaintiff cannot admit or deny the assertion because both Obriot and [Regional Director Leslie] Mackey's affidavits lack credibility."))*fn2 The stated minimum qualifications for the Administrator position included a nursing diploma or degree in business, health care, nursing, or a related field and a minimum three to five years experience in an administrative or supervisory capacity in a home health agency, hospice, or other related health program. (Pl.'s Mot. Summ. J. Ex. X at 2.) Other criteria included problem-solving and decision-making capabilities; ability in program administration; and ability to develop and maintain rapport with clients, family, and staff. (Id.) Defendant asserts that when a candidate met the minimum qualifications, Obriot would pass along the application to Regional Director of Operations Leslie Mackey, who had hiring authority for the Plymouth Meeting Administrator position. (Def.'s Statement Undisputed Fact ¶¶ 16, 17.) Again, Plaintiff can not admit or deny this fact but disputes its credibility. (Pl.'s Rebuttal Def.'s Statement Undisputed Fact ¶¶ 16, 17.)

Obriot forwarded Plaintiff's resume to Mackey on March 28 and May 15, 2006, since he met the minimum qualifications. (Def.'s Statement Undisputed Fact ¶¶ 25, 32; Mot. Summ. J. Exs. 4, 5.) Specifically, Plaintiff has two Masters degrees, one in biomedical engineering and science and one in zoology. (See Def.'s Mot. Summ. J. Ex. 9, Waris Resume.) As to his related experience, Plaintiff worked as an Administrator at the Humble Health Center in Harris County, Texas from June 2005 to August 2005; Plaintiff served as Executive Director of Capital Home Healthcare in Wilmington, Delaware from 2000 to 2004; and Plaintiff was Executive Director of American Health Systems, Inc., in Philadelphia, Pennsylvania from 1986 to 1993. (Id.) Plaintiff has also served as a consultant to home health agencies and has written two books on healthcare. (Id.) During spring 2006, when he applied for the Heartland position, Plaintiff was employed as adjunct faculty teaching human anatomy, physiology, and medical office management at Holy Family University and Harcum College. (Id.)

B. Additional Consideration of Plaintiff Conducted by Defendant

Beginning in May of 2006, Mackey began the selection process for the Administrator position. (See id. Ex. 7.) A total of thirty-two candidates applied to the Plymouth Meeting position during 2006.*fn3 (Def.'s Statement Undisputed Fact ¶ 35.) In late May and early June, Mackey asked Obriot to schedule interviews with four applicants, including Plaintiff. (Def.'s Mot. Summ. J. Ex. 22.) However Mackey testified that Obriot expressed to her that based on Obriot's prior phone calls with Plaintiff, Obriot was concerned that he lacked the requisite knowledge and experience for the position. (Id. Ex. 8, Mackey Dep. at 156:19-157:4.) In particular, Obriot advised Mackey that Plaintiff's application raised the following issues:

* Unrelated experience

* Gaps in employment

* Plaintiff's conversation with Obriot in comparison to other candidates (Def.'s Mot. Summ. J. Ex. 8, Mackey Dep. at 156:19-157:4.)*fn4 Based on these issues (which Defendant refers to as "red flags"), Mackey testified that she informed Obriot to conduct further screening of Plaintiff. (Def.'s Mot. Summ. J. Ex. 8, Mackey Dep. at 156-58.)

On May 30, 2006, immediately after talking to Mackey, Obriot emailed Plaintiff a list of seven substantive questions which required Plaintiff to articulate his experience and qualifications for the position. (Def.'s Statement Undisputed Fact ¶ 43.) Plaintiff disputes this fact but provides no Record support for his counter-factual statement that "immediately after Obriot told Mackey that Plaintiff spoke with an accent, Mackey told Obriot to 'set him up' which Obriot did by giving Plaintiff a bogus 'screening' test." (Pl.'s Rebuttal Def.'s Statement Undisputed Fact ¶ 43.) Obriot explained to Plaintiff that she was sending the questionnaire to him because a previous candidate for the job had "changed her mind on relocating," and she asked Plaintiff to complete the questionnaire that day. (Def.'s Mot. Summ. J. Ex. 10.) The questionnaire did not specify a required minimum or maximum length of answers. (Pl.'s Statement Undisputed Fact ¶ 9.) However Defendant notes that the questionnaire contained "substantive essay-style questions in a computer Word document in which Plaintiff had free reign to answer at any length he chose . . ." (Def.'s Counter-Statement Undisputed Fact ¶ 9.)

Plaintiff submitted his answers the next day, May 31. One of his answers consumed six lines and the remaining answers were two to three lines. (Def.'s Mot. Summ. J. Ex. 10.) Mackey testified she believed Plaintiff's responses were "very vague, one sentence, and didn't give a lot of information." (Def.'s Mot. Summ. J. Ex. 8, Mackey Dep. at 160:21-23.) Further, Mackey expressed her concerns about Plaintiff's answers as follows: "[F]rankly, an individual who took this didn't take a lot of time to answer in detail and concisely. And I was concerned that the person just didn't take the time needed to really want the job." (Id. at 160:23-161:3.) No other candidates were given the same written questionnaire. (Pl.'s Statement Undisputed Fact ¶ 8.)

C. Defendant's Rejection of Further Consideration of Plaintiff

After receiving his supplemental responses on May 31, Mackey decided not to interview Plaintiff. (Def.'s Statement Undisputed Fact ¶ 55.) Mackey swore in an affidavit that she had no knowledge of Plaintiff's age, race, or national origin in deciding to not interview him. (Def.'s Mot. Summ. J. Ex. 12 at ¶ 7.) Plaintiff's deposition of Mackey did not result in any change or challenge to her affidavits. (See Def.'s Mot. Summ. J. Exs. 5, 12, Mackey Affs.; Ex. 8, Mackey Dep.)

The record shows that Ms. Mackey did interview another applicant, Gregory Field ("Field"), that same day, May 31, 2006. (Def.'s Statement Undisputed Facts ¶ 53.) Sometime after Field was interviewed, Defendant offered Field the position, but he turned it down because the pay was insufficient. (Id. at ¶¶ 57-58; Def.'s Mot. Summ. J. Ex. 28.) Field was a Caucasian male. (See Pl.'s Mot. Summ. J. Ex. W, Mackey Dep. at 208:21-208:22.) Certain facts concerning Field's candidacy are discussed infra, Part IV.B.3.d.

After Defendant decided not to pursue Plaintiff's candidacy, the Record is not clear as to when Plaintiff was initially notified of his rejection for the position. An e-mail from Obriot suggests that Plaintiff was notified prior to the end of June. (Pl.'s Mot. Summ. J. Exs. I, J, Obriot & Waris Emails from June 28-29, 2006 (stating that Obriot had previously notified Plaintiff of his rejection from the position)). In contrast, Plaintiff argues that he did not hear from Heartland for a month following submission of his questionnaire. (Pl.'s Mot. Summ. J. ¶ 37.) In an email from Obriot to Plaintiff dated June 29, 2006, in response to an e-mail from Plaintiff about his candidacy for the Administrator position and as to why he was not selected for other positions with the company to which he had applied in the past one to two years,*fn5 Obriot stated that "they went with a candidate that had more experience" for the Administrator position. (Id. Ex. I.) In an e-mail dated July 5, 2006, responding to Plaintiff's email of July 2, 2006, Obriot informed Plaintiff that "I filled the position with local candidates who were already in the interviewing process prior to receiving your resume." (Id. Ex. Q.)

Plaintiff claims that during the course of this litigation Defendant's stated reasons for firing him have shifted. (Id. at 18.) In Defendant's Position Statement to the EEOC, the Manager of Human Resources explained that Plaintiff gave vague responses and a lack of detail in the pre-interview questionnaire, cited to one of Plaintiff's questionnaire answers, and stated that this demonstrated "he was not the best candidate for the position."*fn6 (Id. Ex. E at 3.) Mackey stated in her September 12, 2006 Affidavit that she chose not to pursue Mr. Waris "due to his vague, one-sentence responses on the screening he had completed." (Id. Ex. N.) In her deposition, Mackey testified that all seven questions were not answered up to her expectations:

Plaintiff: So you are saying that all seven questions were not answered up to your expectations; is that what it is?

Mackey: Correct. (Id. Ex. W at 162.) The Court will consider below whether these responses are evidence of pretext.

D. Defendant's Eventual Hire

In total, Defendant interviewed seven applicants for the position. (Pl.'s Statement Undisputed Fact ¶ 4.) All interviewees were Caucasian. (Id. at 5.) However the Record does not establish that all interviewees were native born. In October 2006, Defendant hired Kathleen Lamb for the position. (Def.'s Mot. Summ. J. Ex. 32.) Lamb was 52 years old at the time she was recruited and hired. (Def.'s Statement Undisputed Fact ¶ 65.) Lamb had a nursing degree,*fn7 and she was employed as the Director of Hospice at Sacred Heart Hospital at the time she applied to Defendant. (Pl.'s Mot. Summ. J. Ex. T.) She had served as Sacred Heart Director since 2004; she had also worked as marketing and community relations manager, manager of intake and referral, and clinical supervisor from 1994 to 2001 at Lifequest Home Care in Quakertown, Pennsylvania. (Id.) Mackey also held a nursing diploma and had worked at Sacred Heart, so Mackey was familiar with Lamb's background. (Def.'s Statement Undisputed Fact ¶ 60.) After she was hired by Defendant, Lamb served as Administrator for Defendant until May 2007 when the Plymouth Meeting facility was closed.*fn8 (Id. at ¶ 64.)

Mackey stated in an affidavit that the prior Plymouth Meeting Administrator, Uma Arya, who was hired in 2004 and voluntarily resigned in late 2005 to relocate, was, as Plaintiff, over 50, Asian Indian, and India-born. (Def.'s Mot. Summ. J. Ex. 12, Mackey Aff. at ¶ 3.) Defendant's employee list confirms that a naturalized Asian female Administrator, born in 1954, was hired on August 3, 2004. (Id. Ex. 35 at 1.) Mackey further swore that she hired Ms. Arya, and Obriot stated in an affidavit that she was the recruiter at this time. (Id. Exs. 6, 12.) Plaintiff claims that these facts about the prior administrator are false but provides no Record support or contrary facts for this claim. (Pl.'s Rebuttal Def.'s Statement Undisputed Fact ¶¶ 75-81.)

Defendant documents that it had an anti-discrimination policy in place as well as human resources guidelines issued in 2005 supporting a discrimination-free workplace. (Def.'s Mot. Summ. J. Exs. 14, 15.)

II. Procedural History

A. Plaintiff's Initial Filings

Plaintiff filed a charge with the Equal Employment Opportunity Commission (EEOC) on August 14, 2006. (Am. Compl. 9.) Defendant filed a response on September 13, 2006. (Pl.'s Mot. Summ. J. Ex. E at 2.) The EEOC issued Plaintiff a right to sue letter on April 13, 2007. (Am. Compl. 9.)

Plaintiff filed a complaint pro se in the Montgomery County Court of Common Pleas on July 10, 2007. Defendant removed the case to this Court on August 14, 2007 (Doc. No. 1). Plaintiff filed an Amended Complaint on August 22, 2007 (Doc. No. 4). Plaintiff initially alleged seven counts, but withdrew two of these counts-common-law fraud and the Pennsylvania Unfair Trade Praces and Consumer Protection Law-on April 28, 2008 (Doc. No. 16).

B. Discovery Disputes and No Limits on Plaintiff's Discovery

Discovery in this case has been extremely contentious. Plaintiff has made serious misrepresentations in his brief concerning Defendant's opposition to, and the Court's rulings on, discovery.

First, Plaintiff's own conduct during discovery was highly improper. Plaintiff has accused Defendant and defense counsel of being racists and defense counsel of committing perjury. (See Pre-trial Conference Tr. 24, 28, June 26, 2008, Doc. No. 87.) Based on these and other allegations of wrongdoing, Plaintiff has started a separate civil suit naming defense counsel and some of Defendant's employees, among others, as defendants. Waris v. Ormond, No. 08-5709 (E.D. Pa. Dec. 9, 2008). In addition, Plaintiff has a third civil case removed to this Court, which arises out of the instant case's facts but in which he asserts only state law claims. Waris v. Heartland Home Health Servs., No. 09-297 (E.D. Pa. Jan. 22, 2009).

Second, the volume and nature of pretrial motions filed by both parties, but especially Plaintiff, were unusual. Because of this, on June 27, 2008, this Court ordered that Defendant need not respond to Plaintiff's motions unless specifically requested by the Court (Doc. No. 68). The Court saw no need to rule on several of Plaintiff's motions, and they will be denied as moot.

Third, on the topic of depositions, at the pretrial conference on June 26, 2008, the Court encouraged Plaintiff to take depositions to help him gather evidence to prove his case. (See Pre-trial Conference Hr'g Tr. 29:9 et seq., June 26, 2008, Doc. No. 87.) Plaintiff indicated that he would take the deposition of corporate employee Obriot. (Id. at 19:12-19:21.) Although he eventually did send a notice for her deposition on July 30, 2008, this was only about two weeks in advance of the initial discovery deadline of August 16, 2008.*fn9 (See Pre-trial Conference Hr'g, Audio Aug. 19, 2008, Morning Session, 0:05:00-0:22:00 (discussing Obriot deposition and discovery deadlines).) At that time Ms. Obriot was no longer employed by the Defendant, resided in Michigan, and was beyond the 100-mile limit for deposition subpoenas. (See Def.'s Mot. Quash Subpeona Notice Obriot, Doc. No. 91.) Therefore the Court granted Defendant's Motion to Quash Plaintiff's subpeona for Obriot's deposition. (Order, Aug. 25, 2008, Doc. No. 110.) Yet Plaintiff never took the appropriate steps to take Obriot's deposition in Michigan, although he could have done so pursuant to Federal Rule of Civil Procedure 45.

Plaintiff also belatedly sent a notice for deposition to another former corporate employee, Jeff Schulte, on July 31, 2008 (see Def.'s Mot. Quash Subpeona Notice Schulte et al., Doc. No. 92), which this Court recently quashed by separate Order (Doc. No. 143).

As to the Plaintiff's desire to depose corporate employee Mackey, Plaintiff and defense counsel initially disputed the circumstances surrounding Mackey's appearance. Defendant asserts Plaintiff did not appear at the originally scheduled time on August 14, 2008. (See Def.'s Supp. Mem. Mot. Contempt & Sanctions 3-5, Doc. No. 95.) Giving Plaintiff the benefit of the doubt, in an Order dated August 25, 2008 (Doc. No. 110 ¶ 3), the Court required Defendant to produce Mackey for a second time for deposition. As to Plaintiff's claim that the Court limited him to one three-hour deposition (see Pl.'s Mot. Summ. J. 4 ¶ 9), Plaintiff himself stated that the Mackey deposition only required three hours (see Hr'g, Audio Aug. 19, 2008, Morning Session, 0:35:20-0:35:22, Doc. No. 100).

Following discovery, Defendant filed its Motion for Summary Judgment on October 17, 2008 (Doc. No. 128). Plaintiff filed his own Motion for Summary ...

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