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Jarzabek v. UPMC Passavant Hospital

March 13, 2009


The opinion of the court was delivered by: Joy Flowers Conti United States District Judge


CONTI, District Judge

Gaye Elaine Jarzabek ("plaintiff" or "Jarzabek"), a former unit director for UPMC Passavant Hospital's critical care unit, initiated this gender-based discrimination and retaliation action against her former employer, defendant UPMC Passavant Hospital ("defendant" or "Passavant").

Plaintiff asserts claims for (1) retaliation which violated Title VII of the Civil Rights Act of 1963, 42 U.S.C. §§ 2000e et seq. ("Title VII") (count one), (2) gender-based discriminatory actions which violated Title VII (count two), and (3) retaliation and gender-based discrimination under the Pennsylvania Human Relations Act, 43 PA. CONS. STAT. §§ 951, et seq. ("PHRA") (count three).

After considering defendant's renewed motion for summary judgment (Docket No. 35), defendant's brief in support (Docket No. 38), plaintiff's brief in opposition (Docket No. 39), defendant's reply brief (Docket No. 42), the joint statement of material facts ("J.S.") (Docket No. 45), and the parties' other submissions, the court will grant defendant's motion for summary judgment with respect to plaintiff's claims for gender discrimination under Title VII and the PHRA. Defendant's motion for summary judgment will be denied with respect to plaintiff claims for retaliation under Title VII and the PHRA.

Factual Background

A. Introductory Facts

Plaintiff began her employment with defendant in April 2004 as unit director for Passavant's critical care units. (J.S.Def. ¶ 1*fn1 ; Plaintiff's Deposition ("Pl. Dep.") at 27.) Upon plaintiff's hiring, Holly Lorenz ("Lorenz"), defendant's vice president of patient care and chief nursing officer, made clear that the leadership in the intensive care unit ("ICU") needed changed and believed plaintiff would bring about that change. (Plaintiff's Declaration ("Pl. Decl.") ¶¶ 1-7.)

As a unit director, plaintiff was responsible for managing the daily operations of the nursing units in Passavant's medical and surgical intensive care units (respectively, "MICU" and "SICU"). (J.S.Def. ¶ 5; Pl. Dep. at 32; Cheryl Dodson's Declaration ("Dodson Decl.") ¶ 7.) Plaintiff's responsibilities included managing the budget, adjusting staffing assignments and coordinating staff scheduling, resolving complaints and facilitating patient safety and customer satisfaction within the units. (J.S.Def. ¶ 7; Pl. Dep. at 32-34; Dodson Decl. at ¶ 8.)

Initially, plaintiff reported to Lorenz, until February 2006, when Lorenz promoted Cheryl Dodson ("Dodson") to clinical director of operations. (J.S.Def. ¶¶ 2, 4; Pl. Dep. at 27-28; Dodson's Deposition ("Dodson Dep.") at 8.) After February 2006, Dodson was in charge of evaluating plaintiff's job performance. (Dodson Dep. at 89.)

B. Annual Evaluations

On October 8, 2004, Lorenz completed a six-month orientation performance evaluation of plaintiff and determined a rating of 2.78 out of 3.0. (J.S.Def. ¶ 9; 10/8/2004 Performance Review, Pl.'s Ex. 21.) A rating of 2.0 means "consistently meets expectations" and a rating of 3.0 means "consistently exceeds expectations." (J.S.Def. ¶ 9; 10/8/2004 Performance Review, Pl.'s Ex. 21.) The evaluation was meant to rate the employee on various job performance functions over a specified time frame, including, but not limited to, increasing patient satisfaction, maintaining financial and productivity standards in direct reporting areas, and enhancing relationships with physician groups and individuals. (10/8/2004 Performance Review, Pl.'s Ex. 21.)

In April 2005, Dodson completed plaintiff's annual performance evaluation and determined plaintiff's rating was 2.6. (J.S.Def. ¶ 17; 4/17/05 Performance Review Pl.'s Ex. 35.) Despite several critiques, Dodson commented that plaintiff was "well on her way" to improving relationships with physicians despite the strong personality differences between the ICU staff and doctors. (4/17/05 Performance Review Pl.'s Ex. 35.)

In February 2006, defendant successfully opened a third ICU, the cardiothoracic intensive care unit ("CTICU"), within defendant's hospital. (Pl. Decl. ¶ 11.) Defendant attempted to open the CTICU in December 2005 when the plaintiff was absent on medical leave, but failed. (Id.) Lorenz and Dodson both informed plaintiff that the CTICU could not have opened without her leadership. (Id.)

On February 16, 2006, Dodson met with plaintiff and Lorenz to clarify expectations between Dodson and plaintiff. (J.S.Def. ¶ 21; Dodson Decl. ¶¶ 20, 25.) Plaintiff told Dodson that, while plaintiff was on leave, she felt Dodson micromanaged plaintiff's units, whereas plaintiff operated the units in a more independent manner. (Pl. Decl. ¶ 13.) The meeting did not involve any discussion regarding plaintiff's job performance. (Pl. Decl. ¶¶ 13-15.)

Dodson evaluated plaintiff in April 2006 and noted plaintiff's improvement since the February 2006 meeting, but plaintiff's overall performance rating still dropped to 2.4. (J.S.Def. ¶¶ 23-26; Dodson Decl. ¶ 21-23.) Included within the April 2006 evaluation was a co-worker feedback form, that collected information from optional reviews filled out by plaintiff's co-workers. (4/4/06 Performance Review, Pl.'s Ex. 9.) Based upon reviews completed by six of plaintiff's co-workers, plaintiff achieved performance scores between 4.3 and 5 for various categories, on a scale of 1 through 5. (4/4/06 Performance Review, Pl.'s Ex. 9.)

C. Dr. Pellegrini and the Sexual Harassment Incidents

Dr. Ronald Pellegrini ("Pellegrini") was a cardiac surgeon employed by University of Pittsburgh Physicians ("UPP"), and was an attending surgeon at defendant's hospital. (J.S.Def. ¶ 84; Teresa Petrick's Deposition ("Petrick Dep.") at 24, 33; Pellegrini's Deposition ("Pellegrini Dep.") at 29.) He would perform surgeries at defendant's hospital on a periodic basis. (J.S.Def. ¶ 84.) Pellegrini was not an employee of defendant. (J.S.Def. ¶ 84; Petrick Dep. at 24, 33; Pellegrini Dep. at 29.) Pellegrini was, however, one of defendant's highest dollar volume admitting physicians. (J.S.Pl. ¶ 1; Petrick Dep. at 35-36.) Kim Froehlich ("Froehlich"), a primary nurse coordinator, testified that Pellegrini had considerable power at defendant's hospital, and "whatever Dr. Pellegrini wanted, Dr. Pellegrini got." (Froehlich's Deposition ("Froehlich Dep.") at 31.)

In May 2005, Amy Kennedy ("A. Kennedy"), the primary nurse coordinator, informed plaintiff that Pellegrini touched the breast of Tiffany Manno ("Manno"), a nurse in plaintiff's unit, while fumbling around for her name badge. (J.S.Def. ¶ 80; Pl. Dep. at 103-04.) A few days after that incident, Pellegrini allegedly touched the breast of Jackie Cerny ("Cerny"), another nurse in plaintiff's unit, inside a patient's room. (J.S.Def. ¶ 75; Pl. Dep. at 78-80.) Cerny reported the incident to Darlene Hills ("Hills"), one of her co-workers. (Pl. Dep. at 78-81.) Hills told Shari Lennon ("Lennon"), the primary nurse clinician, about the incident, and Lennon relayed the information to plaintiff. (Id.) Plaintiff reported both incidents to Lorenz, who in turn, reported them to Gary Mignogna ("Mignogna"), defendant's vice president of human resources. (J.S.Def. ¶ 76; Pl. Dep. at 94-97; Mignogna's Deposition ("Mignogna Dep.") at 66-67.)

Mignogna contacted both Cerny and Manno regarding the incident with Pellegrini, and only Cerny wanted to pursue a formal complaint. (J.S.Def. ¶¶ 78, 81, 82; Mignogna Dep. at 67; Pl. Dep. at 111-12.) Mignogna prepared a formal report summarizing the findings of his investigation but Mignogna never spoke to Pellegrini as part of the investigation. (J.S.Def. ¶ 83; Mignogna Dep. at 68-69.) Instead, Mignogna forwarded his report to Pellegrini's superiors at UPP. (Petrick Dep. at 24, 33.) Pellegrini's superiors, including UPP's president, Marshall Webster, met with Pellegrini on June 1, 2005, and warned him that the alleged contact was potentially harassing and told him not to engage in inappropriate behavior. (J.S.Def. ¶ 86; Pellegrini Dep. at 21-24, 28-29.) Pelligrini blamed "issues with the nursing staff" and the "environment" at Passavant for the allegations against him. (Memo 7/20/05 Pellegrini Counseling, Pl.'s Ex. 24; Pellegrini Dep. at 26.) Pellegrini was not formally disciplined. (Memo 7/20/05 Pellegrini Counseling, Pl.'s Ex. 24; Pellegrini Dep. at 29.) Mignogna testified that in over twenty years of work in human resources departments, he could not recall another reported incident of sexual harassment in which he did not speak with the alleged accuser. (Mignogna Dep. at 74-76.)

In February 2006, plaintiff informed Lorenz that Pellegrini "turned his back" on her. (Pl. Dep. at 150-51.) Lorenz told plaintiff that Pellegrini blamed her for the 2005 sexual harassment allegations. (Id.)

On April 21, 2006, Karen Loscar ("Loscar"), a new nurse, asked plaintiff not to assign her to work in the CTICU, in part because of an incident where Pellegrini slid his hand from Loscar's lower back up to her neck, and then kept his hand on the back of her neck. (J.S.Pl. ¶¶ 20, 21; Pl. Dep. at 119-20; 4/21/06 Loscar Notes, Pl.'s Ex. 25.)

On April 26, 2006, Froehlich witnessed an incident between Pellegrini and Jody Kennedy ("J. Kennedy"), a nurse. (J.S.Pl. ¶ 22; Pl. Dep. at 125-26; Froehlich Dep. at 5, 13-15.). Pellegrini, Froehlich, and J. Kennedy were discussing the effect a concave sternum, which was a condition J. Kennedy had, would have on open-heart surgery. (Froehlich Dep. at 5-6.) Pellegrini pulled J. Kennedy's shirt, touched her sternum, and stated he could still perform surgery on her. (Id.) Froehlich reported the incident to plaintiff. (J.S.Pl. ¶ 22; Pl. Dep. at 125-26; Froehlich Dep. at 5, 13-15.) Plaintiff questioned J. Kennedy about the incident and she confirmed the events happened, but J. Kennedy stated she did not want to pursue any further action and wanted the matter dropped. (J.S.Pl. ¶¶ 23, 24; Pl. Dep. at 128-30.) J. Kennedy said she was "afraid" to report the incident to Pellegrini and did not want to "make waves" because she liked working with hearts and Pellegrini was beginning to trust her. (Pl.'s Dep. at 128-31.) Froehlich testified that she hesitated in reporting the incident she witnessed, because she did not know what the repercussions would be against her. (Froehlich Dep. at 31-33.)

The two incidents occurring in April 2006 involving Pellegrini led plaintiff to complain to Dodson in May 2006. (J.S.Pl. ¶¶ 1, 24; Pl. Dep. at 138-39.) Dodson was upset, and said that Pellegrini probably left Mercy Hospital and UPMC Presbyterian, two hospitals that Pellegrini previously worked for, because of this type of behavior. (Pl. Dep. at 138-39.) Plaintiff was instructed to raise the complaint with Lorenz, who in turn told plaintiff to discuss the situation with Mignogna. (J.S.Pl. ¶ 2; Pl. Dep. at 138-39.)

On May 11, 2006, Jarzabek met with Mignogna. (J.S.Pl. ¶ 25; Pl. Dep. at 139-40.) At the meeting, Mignogna instructed plaintiff to inquire whether Pellegrini's touching of J. Kennedy was welcomed by her. (J.S.Pl. ¶ 25; Pl. Dep. at 139-40.) Before plaintiff could follow-up with J. Kennedy, Mignogna spoke with J. Kennedy; she confirmed the incident occurred, but allegedly said it was "blown out of proportion." (Mignogna Dep. at 106-08.) Plaintiff was thereafter instructed not to speak to J. Kennedy. (Pl. Dep. at 141.) Either Mignogna or Lorenz told Teresa Petrick ("Petrick"), defendant's president, about the incident between Pellegrini and J. Kennedy. (J.S.Pl. ¶¶ 26, 27; Petrick Dep. at 66-68.) Petrick was later informed by Mignogna that the claims with regard to J. Kennedy were unsubstantiated. (J.S.Pl. ¶¶ 29, 30; Petrick Dep. at 72-73.)

No one informed Pellegrini that a complaint had been filed until J. Kennedy, one of the alleged victims of the April incidents, approached him on May 19, 2006. (Pellegrini Dep. at 5-6, 10-12.) J. Kennedy told Pellegrini that she was questioned about their encounter and asked whether she wanted to file sexual harassment charges. (Pellegrini Dep. at 6.) J. Kennedy mentioned to Pellegrini that plaintiff raised the allegation. (Id.)

Petrick believed plaintiff embellished the claims and tried to influence J. Kennedy to file a complaint against Pellegrini. (J.S.Pl. ¶ 31; Petrick Dep. at 128-29, 142-46.)

D. Meetings on June 1, 2006

Lorenz received a letter from Pellegrini dated June 1, 2006, in which Pellegrini requested a change in leadership in the CTICU. (Letter 6/1/06, Pl.'s Ex. 7.) Pellegrini wrote, in part:

I feel we are desperately in need of a managerial change in this unit. I am not going to reiterate the individual points of deficiencies that have occurred, but I think the lack of leadership is persistent and it is further deteriorating as the magnitude of the intensity of care required in that unit continues. I hope you can help me with this issue.


On June 1, 2006, plaintiff met with Dodson and Lorenz to advise plaintiff not to discuss sexual harassment with her staff; Lorenz told plaintiff that she lost her opportunity with Pellegrini, that Pellegrini blamed her for the 2005 sexual harassment allegations, and that Pellegrini ...

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