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Malarkey v. Reading Hospital and Medical Center

November 18, 2010


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


Plaintiff Marilyn Malarkey has filed suit against The Reading Hospital and Medical Center alleging violations of the Age Discrimination in Employment Act and the Pennsylvania Human Relations Act. She was employed by a nursing agency, G.W.R. Personnel Resources, and in that capacity, was assigned for approximately ten years to the Emergency Department at the Reading Hospital and Medical Center. When TRHMC requested that she no longer be assigned to work in the Emergency Department, Ms. Malarkey refused to accept agency work in other departments of TRHMC or in other hospitals. For the reasons set forth below, I will grant the defendant's motion for summary judgment.


Marilyn Malarkey is a registered nurse who began working for G.W.R. Personnel Resources in 1998. Def.'s Statement of Undisputed Material Facts ("Def.'s SUF") ¶ 1; Pl.'s Statement of Undisputed Material Facts ("Pl.'s SUF") ¶ 10. The year she began working for G.W.R., she was "contracted out" to the Emergency Department of TRHMC.

Def.'s SUF ¶ 7; Pl.'s SUF ¶ 11. As a contract, or agency nurse, Ms. Malarkey determined how many and what shifts she wanted to work. Def.'s SUF ¶ 8. Ms. Malarkey worked in the Emergency Department at TRHMC, as an agency nurse employed with G.W.R., from 1998 until October of 2007. Pl.'s SUF ¶ 12. It was in 2007 that Darlene Mercieca, the Director of the Emergency Department at TRHMC, decided that certain G.W.R. agency nurses who had been regularly assigned to the Emergency Department had the potential to lure staff nurses employed directly by TRHMC away from the hospital and to G.W.R. Def.'s SUF ¶¶ 17--18; Affidavit of Michelle Trupp, ¶ 2. This concern was largely based on the fact that staff nurses employed by TRHMC earned approximately $33.53 per hour, while G.W.R. agency nurses earned approximately $89.00 per hour. Def.'s SUF ¶ 18; Trupp Affidavit, ¶ 3. Ms. Mercieca decided that she would no longer allow two G.W.R. nurses - Ms. Malarkey and Donna Wertz - to work as agency nurses in the Emergency Department. Trupp Affidavit, ¶ 4. Ms. Mercieca chose these two nurses because of all the G.W.R. nurses that worked in the Emergency Department, they had been there the longest. Id. At the time TRHMC made the decision that Ms. Malarkey and Ms. Wertz would no longer be accepted for shifts there, Ms. Malarkey was sixty-seven years old and Ms. Wertz was forty-nine. Pl.'s SUF ¶¶ 28, 29.

Throughout her tenure at TRHMC, Ms. Malarkey received positive evaluations from G.W.R. and praise from her co-workers and patients. Pl.'s SUF ¶ 13. Ms. Mercieca spoke with Ms. Malarkey on August 15, 2007, to explain why the Emergency Department would no longer accept her as an agency nurse. Pl.'s SUF ¶ 14. Ms. Malarkey described the conversation she had with Ms. Mercieca when she arrived in Ms. Mercieca's office:

And she said, you've been an agency worker too long, would you like to come on staff full time. And I said no. She said why not. I said I haven't worked full time in years and that is by choice, and I would certainly not want to start working full time now. . . .

But she said - - she started talking to me about the cost to the hospital and injected that GWR was making a lot of money besides my wages; and because I was [a] temporary nurse with longevity, I would be the one to go first.

And I asked how patient care could be affected negatively with me assigned versus anyone else working less - - less years and not positively since I was familiar to the facility, the staff, and never had a problem there. She said none of that fitted into the equation. It was a matter of getting rid of agency. She said I have too many friends there. I was never offered a contract, full time or part time or any - - on anything.

Malarkey Dep. 127:25--128:21. Ms. Malarkey presented an email she claims was authored by Ms. Mercieca, which states that "[Ms. Malarkey and Ms. Wertz] have been here 10 and 9 years respectively. They have both been offered full time staff positions here and have declined at this point. . . . We value our agency staff to help us but upper level administration has looked down on agency staff who are here too long. The cost of these nurses to the hospital is high and we need to balance our needs with cost." Def.'s Ex. H. Ms. Malarkey did not accept the full time position she was offered at the Emergency Department, both because she did not want to work full time and because accepting it would require a reduction in pay. Pl.'s SUF ¶ 16. Neither she nor Ms. Wertz were permitted to be assigned to the Emergency Department at TRHMC after October of 2007.

However, Ms. Malarkey was offered other positions by the President of G.W.R., Gary Rogers, including a position at York Memorial Hospital and a full-time position in TRHMC's clinic. Malarkey Dep., 135:12--22; 140:13--15. She explained that she rejected the position in the clinic because it was full time, because she did not have office experience, and because she "had already applied to the Wilson School District" and "was just waiting for all my clearances." Id. at 140:20--25. Records kept in the ordinary course of business by G.W.R. include a log detailing communications with Ms. Malarkey about her G.W.R. staffing assignments. The log confirms the substance of the conversation between Ms. Malarkey and Ms. Mercieca, as reported by Ms. Malarkey. See Def.'s Ex. A at G.W.R. Log p. 4, 8/15/07 entry ("[Ms. Malarkey] said that Darlene told her that they are getting rid of agency and that Marilyn would be the first to go since she has been there the longest."). The log also provides myriad examples of the efforts G.W.R. made to find Ms. Malarkey replacement work, either at TRHMC or at another hospital. For example, the log indicates that, after the Emergency Department stopped accepting Ms. Malarkey as an agency nurse, Mr. Rogers offered Ms. Malarkey work in the "Med Surg" department at TRHMC at the same rate of pay she had received in the Emergency Department. Id. at Log p. 3, 10/22/07 entry. Ms. Malarkey "said that she did not want to go back to TRHMC med/surg." Id. Another G.W.R. employee asked Ms. Malarkey if she wanted full time work at TRHMC dispensary. Id. Log p. 3, 10/23/07 entry. When she refused because it was full time, the employee "asked if she would be interested in 2 or 3 days per [week]" and Ms. Malarkey responded that "it's something to put in my cap -but don't stop looking for someone else." Id. Next, G.W.R. offered Ms. Malarkey work in the Rehabilitation Department at TRHMC, which Ms. Malarkey rejected because it was "a lot of lifting, solo lifting, so no, [she was] not interested." Id. Log p. 3, 10/25/07 entry. Mr. Rogers also offered to pay for overnight lodging if Ms. Malarkey wanted to work at York Hospital. Id. at Log p. 3, 11/1/07 entry. Ms. Malarkey "said she appreciated it but that she had applied for a job as school nurse with the Wilson School District." Id. The same day, Mr. Rogers wrote the following:

[Ms. Malarkey] then asked if we were going to keep her busy. I told her that depended on how flexible she was going to be in accepting work. I reminded Marilyn that we still have a lot of work for her. I told Marilyn that we had work at [St. Joseph's Medical Center] Labor and Delivery. She said she would not accept work there, and she also said she knows we have work in TRHMC Rehab, I confirmed that to be true, she said that she does not want to accept work there, she also said that she does not want to be assigned to TRHMC M/S (med/surg), she said she did not want to accept the THRMC clinic assignment, and she said she also knows we have work at York but does not want to accept that work either.

Id. at Log p. 2, 11/01/07 entry.

Ms. Malarkey's statements during her deposition do not entirely confirm the substance of Mr. Rogers' conversations with her, as recorded in the log. For example, Ms. Malarkey stated that she did not recall being offered work in TRHMC's Med/Surg department or that G.W.R. offered her two to three days a week of work in TRHMC's dispensary. Malarkey Dep. 151:22--152:5; 160:10--20. However, she did not dispute the truth of the log, and confirmed that she would have refused the assignments offered:

Q: Had you concluded at this point in time, as of October 4th, 2007, that you had no intention of returning to the Reading Hospital & Medical Center because they were telling you that you couldn't work in the [Emergency Department]?

A: My feeling would have been that. I hadn't made up my mind or verbalized that to anybody, but it was -- ...

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