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Shibley v. Genesis Health Care

August 12, 2010

BRETT SHIBLEY
v.
GENESIS HEALTH CARE



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

MEMORANDUM

Pending before the Court is Defendant's Motion for Summary Judgment (Doc. No. 12). This case arises out of Plaintiff's allegations of unlawful termination as an employee of Defendant for reasons of age, and retaliation. After discovery was completed in this case, Defendant filed a Motion for Summary Judgment together with a Statement of Undisputed Material Facts. Plaintiff subsequently filed a Memorandum of Law in response to the Motion, together with his own Statement of Undisputed Facts (Doc. No. 15). Defendant then filed a reply brief, which included a response to Plaintiff's Statement of Undisputed Facts (Doc. No. 17).

Prior to oral argument, the Court entered an Order dated July 19, 2010 (Doc. No. 21), pointing out that Plaintiff had not followed the Court's Procedural Order, paragraph (C)(2). Plaintiff was under an obligation to respond, paragraph-by-paragraph, to Defendant's Statement of Undisputed Material Facts, with pinpoint citations to the record, but Plaintiff had failed to do so. Plaintiff was given leave to comply, but responded to this Order by filing a response to Defendant's Statement of Undisputed Facts (Doc. No. 22) which still failed to comply with either the Court's Practice Order or Fed. R. Civ. P. Rule 56(c). With three exceptions (¶¶ 4, 36 and 39), Plaintiff disputed many of Defendant's facts without any citations to the record. Plaintiff then listed an additional 56 paragraphs of "Undisputed and Material Facts" with record citations. There is some overlap between the Undisputed Material Facts as stated in this document, and Plaintiff's Statement of Undisputed Material Facts previously filed (Doc. No. 15).

On July 26, 2010, three days later, at the Court's request, Plaintiff again filed a "Response to Defendant's Statement of Undisputed Material Facts" (Doc. No. 23), which contained some additional record citations in support of Plaintiff's disputes with Defendant's assertion of Undisputed Facts (¶¶ 4, 9, 30, 36 and 39), but, for the majority of the paragraphs as to which Plaintiff previously disputed, Plaintiff merely added the phrase: "Plaintiff disputes this fact, as it arises from a declaration of an individual that was not deposed by either party." Plaintiff gave no reason for not taking such any such depositions.

At oral argument on July 27, 2010, the Court pointed out to Plaintiff's counsel two procedural defects in his response to Defendant's Motion. First, Plaintiff had failed to follow this Court's Procedural Order even after being given a second opportunity to remedy the initial failure. Secondly, and more importantly, Plaintiff has failed, as required by Fed. R. Civ. P. 56(e)(2), to make a showing that there are genuine issues of fact requiring a trial-which is the burden of the party responding to a motion for summary judgment where a defendant's motion and supporting papers set forth undisputed facts which negate a plaintiff's claim, as Defendant did in this case. See Celotex Corp. v. Catrett, 477 U.S. 317 (1986).

As Rule 56(e)(2) specifically requires:

When a motion for summary judgment is properly made and supported, an opposing party may not rely merely on allegations or denials in its own pleading; rather, its response must-by affidavits or as otherwise provided in this rule-set out specific facts showing a genuine issue for trial. If the opposing party does not so respond, summary judgment should, if appropriate, be entered against that party.

Id.; see also Kirleis v. Dickie, McCamey & Chilcote, P.C., 560 F.3d 156, 161 (3d Cir. 2009) (citing Rule 56(e)(2)).

I. Facts

There are a number of undisputed material facts in this case. The Defendant operates a 150-bed facility called The Belvedere ("Belvedere") in Chester, Pennsylvania, providing skilled nursing services to the elderly in Chester and the surrounding Delaware County area. It is licensed by the Pennsylvania Department of Health. Plaintiff became the Administrator at Belvedere in May 2007, and in this capacity, he was essentially in charge of the facility, supervising all department heads at that facility. Plaintiff reported to Paul McGuire, Regional Vice President of Operations.

Defendant's motion for summary judgment sets forth (and supports) a number of facts that Plaintiff was having problems managing a number of the employees at the facility, some of whom had complained about Plaintiff's conduct towards them. These facts are recounted in detail in Defendant's Statement of Undisputed Material Facts, paragraphs 9-46, and supported by depositions or affidavits, as required by Rule 56(e)(2). As noted above, Plaintiff responded as required to only three of these allegations. Putting aside for the moment Plaintiff's failure to respond according to both Rule 56 and the undersigned's practice rule, Plaintiff has not presented any factual materials in any of his papers disputing these facts. Moreover, Plaintiff has not come forward with his own affidavit or declaration giving his version of these facts, as Plaintiff was allowed to do under the specific provisions of Rule 56 and well established Third Circuit case law. See, e.g., Azur v. Chase Bank, USA, Nat. Ass'n, 601 F.3d 212, 216 (3d Cir. 2010) ("Summary judgment is proper where the pleadings, depositions, answers to interrogatories, admissions, and affidavits show there is no genuine issue of material fact . . . ." (quoting Nicini v. Morra, 212 F.3d 798, 805-06 (3d Cir. 2000) (en banc))).

However, Plaintiff has set forth contentions in his various Statements of Undisputed Material Facts (Doc. Nos. 15, 22, and 23) largely based on his own deposition taken by defense counsel. In these documents, Plaintiff asserts that he was highly regarded as an employee by Defendant, that he won awards, that he received favorable employment reviews, and that he had the qualifications to be an outstanding nursing home manager. Plaintiff also asserts that when he first became the supervisor at Belvedere, there were a number of problems that were noted by the Pennsylvania Department of Health, and that Mr. McGuire inappropriately, if not illegally, signed Plaintiff's name to a report required by the Pennsylvania Department of Health. Plaintiff also asserts that Mr. McGuire was hostile to him and made false accusations against him. Plaintiff asserts that he was never given any warning of any failures before he was terminated, and that he was not given any reasons for his termination. He also asserts that he had received a $5,000 merit raise and an additional merit raise reflecting his overall good performance. Plaintiff does acknowledge that Mr. McGuire told Plaintiff that he was being terminated for his inability to build a team and be a leader, even though Plaintiff's annual evaluation stated that Plaintiff was "a great team leader." Plaintiff was replaced by a current employee, in his thirties, who stayed in the position for four months; subsequently, a permanent replacement was selected who was older than Plaintiff. Plaintiff was fifty years old when he was terminated.

In his Complaint, Plaintiff asserted that he was terminated because of his age, a charge that he had initially filed with the Equal Employment Opportunity Commission ("EEOC").

Plaintiff had also alleged retaliation, based on certain conduct by Mr. McGuire, in Plaintiff's filing with the EEOC. However, as it appears in the documents leading up to the summary judgment stage, Plaintiff is now supporting his retaliation claim based on alleged sexual harassment by another employee, which Plaintiff reported. Plaintiff asserts that his termination was not only because of age, but because of Plaintiff's conduct in reporting the sexual harassment. Because this specific charge was never made before the EEOC, it is not properly part of this case at this time, and the Court will therefore not give any further consideration to the claim of retaliation. See Antol v. Perry, 82 F.3d 1291, 1295-96 (3d Cir. 1996) (a plaintiff cannot bring a claim under Title VII without first exhausting all administrative remedies); Janis v. La-Z-Boy Furniture Galleries, 2006 WL 724157, at *7 (E.D. Pa. Mar. 17, 2006) ("Neither of the Charges which Plaintiff filed with the EEOC ...


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