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Mohammed Hussein v. Upmc Mercy Hospital

January 4, 2011


The opinion of the court was delivered by: Terrence F. McVerry United States District Court Judge


Presently pending before the Court for disposition is the MOTION FOR SUMMARY JUDGMENT (Doc. No. 26), filed by defendant UPMC Mercy Hospital ("UPMC" or "Defendant"); and the MOTION FOR SUMMARY JUDGMENT filed by plaintiff, Mohammed Hussein ("Hussein" or "Plaintiff") (Doc. No. 29). The motions have been fully briefed (Doc. No. 27, 32, 41, 43, 45) and the factual record has been thoroughly developed via the submission of the parties' extensive appendices and CONCISE STATEMENTS OF MATERIAL FACT (Doc. Nos. 26, 30) with responses thereto (Doc. Nos. 40, 42). Accordingly, the motions are now ripe for disposition.


All of the claims, and the basic issues of this lawsuit, flow from the allegedly unlawful termination of Hussein's employment by UPMC.

On July 29, 2008, Hussein timely filed a charge of employment discrimination on the basis of religion, age, national origin, and retaliation with the Equal Employment Opportunity Commission ("EEOC") against his former employer, UPMC. These charges were also filed with the Pennsylvania Human Relations Commission. A Notification of Right to Sue was purportedly received by Plaintiff from the EEOC on or about February 20, 2009. UPMC does not dispute that Hussein properly exhausted all of his administrative remedies, as the law requires.

Thereafter, on May 5, 2009, Hussein initiated this lawsuit by the filing of a five-count Complaint (Doc. No. 1) in which he alleges that he was subjected to unlawful discrimination and retaliation by UPMC on the basis of his religion, national origin, and age in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a)(1), the Age Discrimination & Employment Act of 1967, 29 U.S.C. § 621, et seq. ("ADEA"), and the Pennsylvania Human Relations Act ("PHRA"), 42 Pa. Cons. Stat. § 951, et seq. UPMC timely answered (Doc. No. 5) and after extensive discovery, both parties filed the instant Cross-Motions for Summary Judgment.


Summary judgment is appropriate if, drawing all inferences in favor of the nonmoving party, "the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56 (c). 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 case, and for which that party will bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322, (1986).

More specifically, the moving party bears the initial burden of identifying evidence which demonstrates the absence of a genuine issue of material fact. Once that burden has been met, the nonmoving 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 Elec. Indus. Corp. v. Zenith Radio Corp., 475 U.S. 574, 587, (1986) (quoting Fed. R. Civ. P. 56(e) (emphasis in original)). 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, 248, (1986).

When the parties have filed cross-motions for summary judgment, as in this case, the summary judgment standard remains the same. Transguard Ins. Co. of Am., Inc. v. Hinchey, 464 F.Supp.2d 425, 430 (M.D.Pa. 2006). "When confronted with cross-motions for summary judgment, . . . ‗the court must rule on each party's motion on an individual and separate basis, determining, for each side, whether a judgment may be entered in accordance with the summary judgment standard.'" Id. (quoting Marciniak v. Prudential Fin. Ins. Co. of Am., 184 Fed. Appx. 266, 270 (3d Cir. 2006)). "If review of [the] cross-motions reveals no genuine issue of material fact, then judgment may be entered in favor of the party deserving of judgment in light of the law and undisputed facts." Id. (citing Iberia Foods Corp. v. Romeo, 150 F.3d 298, 302 (3d Cir. 1998)).

In federal employment discrimination cases, the familiar McDonnell Douglas formulation regarding the appropriate burdens of proof and allocation of production of evidence governs and guides the analysis of the evidence presented on a motion for summary judgment. McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Under McDonnell Douglas, the plaintiff must establish a prima facie case of discrimination; if this burden is met, the defendant must then articulate some legitimate, nondiscriminatory reason for the employee's treatment. Id. at 802. If the defendant articulates a legitimate, nondiscriminatory reason for the employee's treatment, then the plaintiff must demonstrate that the defendant's stated reasons were a pretext for unlawful action. Id. at 804. The prima facie case under McDonnell Douglas "is not intended to be onerous." Sempier v. Johnson & Higgins, 45 F.3d 724, 728 (3d Cir. 1995), cert. denied, 515 U.S. 1159 (1995). The prima facie case raises an inference of discrimination because the courts presume that the challenged acts, if otherwise unexplained, are "more likely than not based on the consideration of impermissible factors." Id.


The following facts are taken from the Court's independent review of the parties' motions, the filings in support and opposition thereto, and the record as a whole. As the law requires, all disputed facts and inferences are to be resolved in favor of the nonmoving party.

It appears that the basis of this lawsuit arises from a number of events that occurred in June 2006 and in April 2008. The underlying facts of this case are at times unclear and many of the non-material issues of fact are disputed. However the summary judgment record is clear on the determinative issue: there simply is no summary judgment record evidence from which a reasonable factfinder could conclude that any alleged discriminatory or retaliatory acts relate to the denial of a 2006 vacation request by Hussein's department director, nor is there any summary judgment record evidence from which a reasonable factfinder could find that the termination of Hussein's employment resulted from his subsequent complaints to the department's upper-level supervisors about that refusal to grant Plaintiff's requested vacation time.

A. Plaintiff's employment with UPMC

On October 18, 1976, Plaintiff began his employment as a nuclear medicine technologist at Mercy Hospital, a hospital within the UPMC system. In that position, Plaintiff's job duties included performing diagnostic tests involving radioactive isotopes. Inherent with the duties of a nuclear medicine technologist is the responsibility for accurate completion of medical documentation. Given the fact that accurate record keeping is critical to the performance of this position, the corrective action and discharge policy of UPMC, Policy HS-HR0704, provided that dishonesty and falsification of records are grounds for immediate discharge. UPMC counseled Plaintiff on the corrective action policy for various performance-related deficiencies on numerous occasions during his tenure.

Within the Radiology Department at Mercy hospital, Plaintiff was directly supervised by a lead nuclear medicine technologist, who reported to the Director of Radiology. Over the course of Plaintiff's employment, his lead technologist supervisor changed on occasion.

Plaintiff is a practicing Muslim of Pakistani descent. Among other things, Plaintiff observed Ramadan and made two pilgrimages to Mecca (in 1996 and again in 2007). According to Plaintiff's own description of the requirements of the practice of his faith, a Muslim is required to perform one pilgrimage to Mecca within his lifetime, but may undertake more than one if he has the means and ability to do so. Additionally, while working at Mercy hospital, Plaintiff prayed daily during his lunch hour, which required privacy and took approximately ten minutes. Prior to 2007, Plaintiff would pray in a lounge at one of the hospital's nursing stations. In 2007, Plaintiff was permitted to pray in the private office of Amy Dietz, his direct supervisor at the time.

Relevant to Plaintiff's claims in this suit is the vacation policy of the Radiology Department. Under that policy, each employee chose in advance periods of time during the calendar year (in increments of work weeks) to be taken as vacation. The policy is essentially a turn-based process in which one employee at a time would request vacation time, and proceeded by "rounds". In terms of the actual process utilized, according to the policy:

1. Two seniority lists will be developed.  PMHS Seniority -- the date hired by PMHS  Section seniority -- The date that the employee transferred into the section. Each section will provide a listing along with vacation grid to be completed and returned to the Technical Operation Manager or Director by the last day of February. The vacation grid designates the number of staff permitted to take vacation for a week.

2. The first round will be chosen by PMHS seniority. The second round will be chosen by section seniority. All subsequent rounds will be chosen by PMHS seniority.

3. One week of vacation will be chosen at a time. The employee must be able to accrue enough vacation time by the time the week is taken.

4. Each employee will have 24 hours to schedule his or her week. Any employee that does not make a decision within this time frame will forfeit their pick and be put at the end of the list for that round of vacation picks.

5. If the employee wants to take two or more weeks together, the employee must forfeit his or her pick for round one and pick two weeks together in round two. Any vacation taken in two weeks increments must be approved by the Director of Radiology.

Two aspects of this policy are particularly notable, the seniority system for choosing time periods for vacation, and the setting of the vacation calendar in advance for all employees within the Department, specifically by the last day of February. This is consistent with the express purpose of the policy, which was to develop guidelines "[i]n order to provide equity in the vacation selection process and to support the staffing needs of the Radiology Division". Given his seniority, Plaintiff had the first selection to choose his period for vacation within the Radiology Department under this policy.

B. Plaintiff's June 2006 request for vacation

On June 12, 2006, Plaintiff requested time off from December 24, 2006 through January 4, 2007 to travel to Mecca for a religious pilgrimage. In explaining the basis of his request on the request form, Plaintiff explained that he had been offered an opportunity to travel as part of a group of 40 people departing from the Pittsburgh area at a reduced rate, and that he wanted to take advantage of the offer. See Doc. No. 28-3 at p. 32 (Plaintiff's request for personal/vacation day). His request was denied by Becky Volk ("Volk"), the Radiology Department director. Plaintiff alleges that Volk's denial was based upon religious discrimination. UPMC contends that the request was denied because it was made well after the vacation calendar for the year had been established and that a fellow employee had previously been approved for leave on the week requested by Plaintiff. Plaintiff disputes that the denial was based upon concerns for a staffing shortage during the holiday season and alleges that the vacation time for the other employee, a radiation safety officer, had no bearing on the proper staffing of his department since the majority of her assignments were in a different department. Plaintiff does concede, however, that his request was untimely and admits to the possibility that the denial of his vacation request was motivated by Volk's desire to adhere to Defendant's policies.*fn1

C. Complaints Made By Plaintiff to Sister Patricia Hespelein

In October 2006, Plaintiff claims that he levied complaints about the denial of his untimely vacation request to Sister Patricia Hespelein, whom he believed to be a member of upper management. During their conversation, Plaintiff alleges that he communicated Volk's allegedly discriminatory actions to Sister Hespelein, testifying during his deposition as follows:

I told her that, Sister, this is the first time I am coming to you. I need you a favor [sic]. I had requested Becky Volk to go to pilgrimage, and she did not grant my request, and I feel that, you know, my religious rights were violated because I was always routinely covering for my Christian co-workers for all these years, and she said, well it is October now, isn't it too late? I said yes, my chance is gone, and it is already filled up now, and she said what I'll do is I'll talk to Becky Volk next year, and we will make sure that you are able to go to pilgrimage in 2007. (Doc. No. 28-2 at 152). Plaintiff is under the impression or belief that Sister Hespelein eventually communicated these complaints to Volk in February 2007, which in turn resulted in Plaintiff being permitted to travel to Mecca for his second religious pilgrimage at the end of that year.

Notwithstanding Plaintiff's assumptions in this regard, it is unclear whether Sister Hespelein actually voiced the concerns of Plaintiff to Volk. There is no record evidence beyond Plaintiff's speculation and hearsay that such a conversation ever occurred. More specifically, Hussein admits to only speculating as to whether Sister Hespelein ever spoke to Volk, although he testified in his deposition that Volk informed him that she spoke to Sister Hespelein and that Volk "showed her displeasure for [him]" and "was furious" that he spoke to Sister Hespelein. For her part, Sister Hespelein does not recall talking to Volk. Similarly, Lisa Elizabeth Haskins, Manager Technical Operations at UPMC Mercy Imaging Services, testified that she heard that Sister Hespelein had spoken to Volk about Hussein's complaints; Amy Dietz, another nuclear medicine technologist, testified that another technologist informed her that a conversation between Volk and Sister Hespelein occurred; and Amy Helfrich, the then-lead technologist, stated that Volk informed her that a conversation took place between Volk and Sister Hespelein. This testimony, it bears noting, does not reflect first-hand knowledge with respect to any conversation between Volk and Sister Hespelein; these witnesses essentially testify to overhearing secondhand information about such a conversation. Lastly, the Court notes that neither party deposed Volk during the discovery phase of this litigation.

D. The Termination of Plaintiff's Employment

On April 24, 2008, UPMC terminated Plaintiff's employment. The termination letter cited instances of "dishonesty and falsification" based on occurrences in the work place as justification for the dismissal. With his motion for summary judgment, Plaintiff objects to each charge, claiming that they constitute either a common practice or a false allegation, and that the decision to discharge him was actually in retaliation.

Defendant cites two incidents of alleged dishonestly and falsification as the basis for the termination action. An incident allegedly occurred on April 12, 2008 which concerned Plaintiff's supposed failure to discuss with certain doctors that there was a problem with the taking of images on a particular renal scan that he performed on a patient. During the scan in question, the imaging study apparently started, stopped, and then restarted five minutes later, which resulted in missing images. According to Defendant, Plaintiff delivered the results of the scan to the doctor who ordered it, but failed to bring the stoppage of the equipment and the resulting missing images to that doctor's attention. Despite not being informed of the missing images by Plaintiff, the doctor recognized that a problem existed with the scan, and approached a second doctor in order to determine what the problem was. Together, both doctors apparently were able to determine that images were missing. The following Monday, April 14, 2008, one of the two doctors brought the matter to the attention of Amy Dietz, the lead technologist and Plaintiff's immediate supervisor at the time. Dietz commenced an investigation, specifically speaking with the two doctors and Plaintiff. According to both doctors, Plaintiff failed to bring the missing images to their attention. Plaintiff claims that he did. More specifically, Plaintiff claims that he orally notified both doctors, and that he affixed an adhesive note to the patient's requisition form alerting the personnel in the radiology department that ...

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