Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Gallagher v. MHM Correctional Services

August 31, 2010


The opinion of the court was delivered by: Judge Caputo



Presently before the Court are Magistrate Judge Blewitt's Report and Recommendation ("R & R") of April 23, 2010 (Doc. 36) and Plaintiff Mary Kay Gallagher's Objections to the Magistrate Judge's R&R (Doc. 37). Magistrate Judge Blewitt recommended that Defendant's Motion for Summary Judgment (Doc. 16) be granted as to the federal claims and that this Court decline to exercise supplemental jurisdiction over the remaining state law claim. This Court will adopt in part and reject in part Magistrate Judge Blewitt's recommendation; this Court will grant summary judgment in favor of Defendant on all counts for the reasons discussed more fully below.


Plaintiff Mary Kay Gallagher began working for Defendant MHM Correctional Services, Inc. ("MHM") as their Director of Nursing ("DON") on September 12, 2005. (Doc. 17, Ex. 10.) MHM has a contract with the Pennsylvania Department of Corrections ("DOC") to operate the mental health unit ("MHU") at the State Correctional Institution in Frackville, Pennsylvania ("SCI Frackville"). (Whitney Aff. ¶ 3.) Because MHM's success as a company depended so heavily on maintaining its contract with SCI-Frackville, MHM stressed to its employees the importance of maintaining a good relationship with its clients and comporting themselves in a respectful manner in order to give clients a good impression of MHM. (Whitney Aff., Ex. A.)

At some point in January 2007, Plaintiff was involved in an incident wherein two corrections officers were "writing up" an inmate on the MHU; Plaintiff, believing that the inmate was mentally incapable of understanding the meaning or import of being "written up," referred to the inmate as either a "freaking retard" or "fucking retard."*fn1 Plaintiff testified at her deposition that she was simply giving her diagnosis that the inmate was incapable of comprehending his actions, but that she may have used this language in the course of a passionate discussion she was having with the corrections officers. (Gallagher Dep., 30:1-31:25, June 25, 2009.) This incident was reported to the DOC, which resulted in Plaintiff being given a "Written Report of Counseling" that stated that her conduct was below company standards. (Gallagher Dep. 35:5-10; Doc. 17, Ex. 15.)

On April 24, 2007, Plaintiff had another run-in with co-workers Ardie Kissinger and Wendy Flail; according to Plaintiff, she would regularly eat lunch with Kissinger and Flail, but on the aforementioned date, they left the MHU to go eat lunch without telling Plaintiff. (Gallagher Dep. 138:9-19.) Plaintiff became angry with them and confronted them in the lunchroom, in front of approximately ten (10) other people, including DOC employees; raising her voice and admittedly losing her temper, Plaintiff stated that she had been looking for Kissinger and Flail "with [her] thumb up [her] butt." (Gallagher Dep. 140:20-143:3.) However, according to Flail, Gallagher called Kissinger and Flail "fucking pricks" and said she had been waiting for them "with her thumb up her ass." (Flail Aff. ¶ 6.) Several witnesses reported the incident to DOC Superintendent Robert Shannon, who investigated the issue; Plaintiff's version of the incident differed greatly from those of the witnesses and she completely denied using any profanity. (Whitney Aff., Ex. C.) Superintendent Shannon reported to Charles Whitney, MHM's Senior Human Resources Business Partner, that Plaintiff's version of the events was untruthful and that "she deliberately lied to come off better in her account." (Id.) On May 7, 2007, Shannon sent an e-mail to Whitney stating "I've spoken to a few staff in recent days and all are viewing the possibility of [Plaintiff] returning as a huge mistake. I would much prefer that she be left (sic) go." (Whitney Aff., Ex. D.) As a result of this incident, Plaintiff's employment with MHM was terminated on May 9, 2007. (Whitney Aff., Ex. E.)

Plaintiff contends that she was fired because of her age and gender; Plaintiff is a woman who was born on September 8, 1956. (Compl. ¶ 3.) When Plaintiff was hired as DON, Defendant claims that her supervisor was the MHU Program Director, Dave Mont, and that MHM's Pennsylvania Regional Program Director was Sue Siroki (Doc. 18 at ¶ 10); Plaintiff, however, asserts that Mont was the MHU Unit Manager, and that Siroki was the Program Director (Doc. 29 at ¶ 10).

Mont gave notice that he was going to retire in early 2006; he stayed on with MHM for a few months to assist with the transition. Upon Dave Mont's retirement, Plaintiff went from being DON to DON (Administrative); Plaintiff received a raise and took on administrative duties in addition to her normal duties as DON. (Gallagher Dep. 102:2-105:23). According to Plaintiff, these new duties included all of Mont's prior responsibilities. (Gallagher Dep. 106:6-8.) Plaintiff testified that she hired Ardie Kissinger a few months after she was given the title of DON (Administrative) to be the clinical coordinator for the MHU. (Gallagher Dep. 111:24-112:22.) Plaintiff claims that she was then later terminated to give Ardie Kissinger, a younger male, her position. (Gallagher Dep. 121:20-122:1.) She claims that the charges against her were "trumped up" in order to fire her because she was a woman over the age of forty (40) and because MHM wanted Ardie Kissinger to take over Plaintiff's position. Plaintiff testified that the evidence of discrimination against her was that she was terminated and replaced by a younger male, and other women were also fired by MHM. (Gallagher Dep. 122:21-125:1.)

On December 9, 2008, Plaintiff filed a Complaint alleging that her termination from employment by MHM constituted gender discrimination in violation of Title VII (Count I), age discrimination in violation of the Age Discrimination in Employment Act ("ADEA") (Count II), and violation of the Pennsylvania Human Rights Act ("PHRA") (Count III). On November 9, 2009, MHM moved for summary judgment on all counts. (Doc. 16.) On April 23, 2010, Magistrate Judge Blewitt issued an R&R recommending that summary judgment be granted on the ADEA and Title VII claims, and that this Court should decline to exercise supplemental jurisdiction over the state law PHRA claim. (Doc. 36.) Plaintiff filed Objections on May 10, 2010. The motion has been fully briefed and is ripe for disposition.


I. Objections to the Report and Recommendation

Where objections to the magistrate judge's report are filed, the Court must conduct a de novo review of the contested portions of the report, Sample v. Diecks, 885 F.2d 1099, 1106 n.3 (3d Cir. 1989) (citing 28 U.S.C. § 636(b)(1)(c)), provided the objections are both timely and specific, Goney v. Clark, 749 F.2d 5, 6-7 (3d Cir. 1984). In making its de novo review, the Court may accept, reject, or modify, in whole or in part, the factual findings or legal conclusions of the magistrate judge. See 28 U.S.C. § 636(b)(1); Owens v. Beard, 829 F. Supp. 736, 738 (M.D. Pa. 1993). Although the review is de novo, the statute permits the Court to rely on the recommendations of the magistrate judge to the extent it deems proper. See United States v. Raddatz, 447 U.S. 667, 675-76 (1980); Goney, 749 F.2d at 7; Ball v. United States Parole Comm'n, 849 F. Supp. 328, 330 (M.D. Pa. 1994). Uncontested portions of the report may be reviewed at a standard determined by the ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.