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Johnston v. Forbes Hospice/West Penn Allegheny Health System

September 15, 2009

JOHN K. JOHNSTON, PLAINTIFF,
v.
FORBES HOSPICE/WEST PENN ALLEGHENY HEALTH SYSTEM, DEFENDANT.



The opinion of the court was delivered by: David Stewart Cercone United States District Judge

Electronic Filing

OPINION

Plaintiff commenced this action seeking redress for alleged wrongful suspension and subsequent termination from employment based on disparate treatment and retaliation for complaints about race discrimination. Presently before the court is defendant's motion for summary judgment. For the reasons set forth below, defendant's motion will be granted.

Federal Rule of Civil Procedure 56(c) provides that summary judgment may be granted if, drawing all inferences in favor of the non-moving party, "the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Summary judgment may be granted against a party who fails to adduce facts sufficient to establish the existence of any element essential to that party's claim, and upon which that party will bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317 (1986). The moving party bears the initial burden of identifying evidence which demonstrates the absence of a genuine issue of material fact. When the movant does not bear the burden of proof on the claim, the movant's initial burden may be met by demonstrating the lack of record evidence to support the opponent's claim. National State Bank v. National Reserve Bank, 979 F.2d 1579, 1582 (3d Cir. 1992). Once that burden has been met, the non-moving party must set forth "specific facts showing that there is a genuine issue for trial," or the factual record will be taken as presented by the moving party and judgment will be entered as a matter of law. Matsushita Electric Industrial Corp. v. Zenith Radio Corp., 475 U.S. 574 (1986) (quoting Fed.R.Civ.P. 56 (a), (e)) (emphasis in Matsushita). An issue is genuine only if the evidence is such that a reasonable jury could return a verdict for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986).

In meeting its burden of proof, the "opponent must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita, 475 U.S. at 586. The non-moving party "must present affirmative evidence in order to defeat a properly supported motion" and cannot "simply reassert factually unsupported allegations." Williams v. Borough of West Chester, 891 F.2d 458, 460 (3d Cir. 1989). Nor can the opponent "merely rely upon conclusory allegations in [its] pleadings or in memoranda and briefs." Harter v. GAF Corp., 967 F.2d 846 (3d Cir. 1992). Likewise, mere conjecture or speculation by the party resisting summary judgment will not provide a basis upon which to deny the motion. Robertson v. Allied Signal, Inc., 914 F.2d 360, 382-83 n.12 (3d Cir. 1990). If the non-moving party's evidence merely is colorable or lacks sufficient probative force summary judgment must be granted. Anderson, 477 U.S. at 249-50; see also Big Apple BMW, Inc. v. BMW of North America, 974 F.2d 1358, 1362 (3d Cir. 1992), cert. denied, 113 S.Ct. 1262 (1993) (although the court is not permitted to weigh facts or competing inferences, it is no longer required to "turn a blind eye" to the weight of the evidence).

The record as read in the light most favorable to the non-moving party establishes the background set forth below. Plaintiff became employed by defendant on December 13, 2004, and worked as a registered nurse providing home hospice care for patients. Response of Plaintiff to Statement of Material Facts Not in Dispute (Doc. No. 35) at ¶ 3. Plaintiff worked on an interdisciplinary treatment team known as the "East Team," which served patients in the Eastern region of Pittsburgh. Id. at ¶ 7. Social worker Emma Castaphney also served on the team. Id. The interdisciplinary treatment teams reported to Leslie Palkofer, Home Care Manager. Id. Palkofer in turn reported to Hospice Director Maryanne Fello. Id.

On June 28, 2006, a series of telephone conversations occurred between a white co-worker, Meghan O'Donnell, and a family member of a patient. Id. at 10. The family member called and relayed that the patient was requesting that certain employees not be sent to the patient's residence. Id. O'Donnell was uncertain about whether the request could be accommodated and thereafter discussed it with Palkofer. Palkofer directed O'Donnell to obtain more information and in that process it was revealed that the patient did not want any African Americans coming into the home. Plaintiff overheard O'Donnell's side of the conversation and became aware of this request. After this telephone call plaintiff confronted O'Donnell about race discrimination and stated that he believed she was being "too nice" to the caller. Id. at ¶ 10. The confrontation escalated and Palkofer became involved. Id. at ¶ 11. After being pressed by Palkofer about his anger over the situation, plaintiff stated he understood "how people get mad at work and take action," and that he did not feel "that in this day and age things like that should happen in the workplace."*fn1 Id. at ¶ 12. When asked about what he meant, plaintiff referred to events in the news and stated: "I've never experienced any type of anger at work before that made me feel that way, but I could understand after this incident how things do happen." Id. at ¶ 18.

After the June 28 conversation with Palkofer, plaintiff left to see his last two patients before going home. Id. at ¶ 13. Palkofer contacted Fello to discuss the confrontation, plaintiff's complaint about racial discrimination stemming from how O'Donnell handled the telephone call and plaintiff's reaction to the entire incident. Id. Plaintiff called off the next day and arranged to see a counselor, Mr. Shamlin, to discuss the incident. Id. at 15. During the first session Shamlin made a note indicating plaintiff stated: "I can see why people go and pick up a gun and hurt other people when they are treated this way."*fn2 Id. at ¶ 16.

On June 30, 2006, plaintiff returned to work and met with Palkofer. He indicated that he cried "all night long" as a result of the incident. Id. at ¶ 14. After this meeting Palkofer contacted HR Director Rebecca Trumble (now Conlon) to discuss her concerns about plaintiff's statements. Id. at ¶ 20. After hearing about the statements Conlon expressed concern for the safety of the patients, staff and plaintiff himself, and instructed Palkofer to refer plaintiff to the Employee Assistance Program ("EAP") for evaluation.

Id. at ¶ 20. During the EAP evaluation process plaintiff was suspended without pay. Id. at ¶ 21. Suspension without pay during the evaluation is not a procedure expressly set forth in defendant's written workplace policies.

Later that afternoon, Palkofer met with plaintiff and informed him that he would be suspended until the issue was resolved. Plaintiff immediately called Forbes' EAP and informed them he was already seeing Shamlin, an EAP counselor, through his wife's employment, and it was agreed he could continue to do so. Id. at ¶ 23. The following week plaintiff spoke to Shamlin over the telephone. Id.at ¶ 24. During the conversation, Shamlin stated he would not release plaintiff to return to work at that time. Id.

On July 7, 2006, plaintiff met with Fello to discuss returning to work. Id. at ¶ 25. During the meeting Fello promised there would be training with the hospice staff regarding race relations as a result of the June 28, 2006 telephone call. Id. The next day plaintiff spoke with Shamlin over the telephone, and Shamlin told him he could be released as soon as Shamlin spoke to the EAP at Forbes. Id. at ¶ 26. On July 9, 2006, Shamlin wrote a letter that advised: "At the time [plaintiff] was evaluated, he exhibited no signs of intent to harm others and verbalized remorse over his handling of the recent situation and poor judgment in relation to statements he made resulting in the disciplinary action taken." Id. at ¶ 27.

Prior to plaintiff's return to work, social worker Castaphney made a routine visit to a patient's home. Id. at ¶ 28. The parties differ over the contents of the conversation that took place between Castaphney, the patient's wife and Michelle K.S., the daughter of the patient. Id. at 29. Defendant alleges the patient's wife and daughter stated they took plaintiff to see their neighbor, Harvey Adams, a lawyer, regarding plaintiff's recent incident at work. Defendant's SMF at ¶ 29. The family members were upset because plaintiff had not shown up for an appointment he made with Adams. Id. Defendant also alleges the family members stated plaintiff had asked them for a $150,000 loan to start his own hospice business, and indicated Castaphney and the patient's daughter would be involved in the business venture. Id. at ¶ 30. Castaphney further reported that the family told her they gave plaintiff a car stereo and he borrowed the family's car for a trip to Canada. Id. at ¶ 31. Finally, defendant alleges the family requested a new nurse. Id. at ¶ 30.

Plaintiff and Michelle K.S. allege that no such conversation took place between the family members and Castaphney. Plaintiff's SMF at ¶ 29. Specifically, plaintiff alleges that after he was discharged he was put in touch with Adams regarding the incidents, but he only met with Adams prior to the discharge because he admired him. Id. Furthermore, Michelle K.S. denies that plaintiff ever asked the family for a loan or that the family requested a new nurse. Id. at ¶ 30. Both plaintiff and Michelle K.S. admit to having discussions about a "business venture," but state it was merely a joke between the family and plaintiff. Id. Michelle K.S. also denies ever discussing with Castaphney that plaintiff borrowed the family car for a trip to Canada, or the car stereo.

Id. at ¶ 31. Both plaintiff and Michelle K.S. claim the car stereo was a gift for Debbie Johnston, plaintiff's wife, and that she was the one who accepted the family's offer to use the car for the trip. Id.

Castaphney returned to the office and met with Fello and Palkofer to discuss the conversation that took place at the patient's home. Id. at ¶ 32. After Castaphney disclosed the contents of the conversation, Fello concluded that the ethics violations were self-evident and the acceptance of the a car stereo alone was sufficient to warrant plaintiff's discharge. Id. at ¶ 34. Fello directed Castaphney to prepare a written statement. Fello then contacted Conlon, who instructed her to call the family and confirm what Castaphney had reported. Brief of Plaintiff at 15. Notes from Fello's July 11, 2006 telephone call refer only to the solicitation of a loan. Id. After the conversation with the family, Conlon and Fello concluded that plaintiff should be terminated. Plaintiff's SMF at ¶ 34.

On July 13, 2006, Fello and Conlon met with plaintiff and told him he was dismissed. Id. at ¶ 35. Plaintiff's discharge letter included as supporting grounds the receipt of the car stereo, the solicitation of a loan, and the use of the family car. Id. ¶ 34. During the discharge meeting, plaintiff asserted the charges were not true, but was not given a chance to give his side of the story. Plaintiff's SMF at ¶ 36, Plaintiff's Brief at 13. In response, Fello told him she researched the charges herself and that, "I am the CEO of Forbes Hospice. It is your word against my word and my word is final. You are fired." Id. On July 13, 2006, following plaintiff's termination, Fello contacted the wife of the patient for the second time. Her notes of that conversation again only reference the solicitation of the loan. Plaintiff's Brief at 15.

According to plaintiff, discrepancies exist over the reasons given for his dismissal. Fello has explained that the discharge was based solely on the acceptance of the car stereo. Id. at 14 (citing Fello Deposition at 125-126). Conlon insisted, however, that the car stereo, the use of the patient's car and the loan solicitation were all taken into account, and admitted that the use of the ...


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