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Michelle Jubilee-Miller v. Frankford Torresdale

February 14, 2011


The opinion of the court was delivered by: Eduardo C. Robreno, J.



This case arises under Title VII, 42 U.S.C. § 2000e-2(a)(2), and the Pennsylvania Human Rights Act ("PHRA"), 43 Pa. Cons. Stat. § 951. Plaintiff Michelle Jubilee-Miller ("Plaintiff") brings this cause of action against Defendant Frankford Torresdale Hospital, whose correct name is now ARIA Health ("Defendant"). Plaintiff alleges that she was terminated from her employment at Defendant's Frankford/Torres Hospital due to race discrimination. (Compl. ¶¶ 36-48.)


A. Plaintiff's Work Performance Prior to the March 23, 2007 Incident Defendant is a healthcare provider to patients throughout the Frankford and Northeast sections of Philadelphia and in Bucks County, Pennsylvania. Aria Health, (last visited Jan. 7, 2011). Plaintiff began working as a Certified Nurse Assistant ("CNA") at Defendant's Frankford/Torres Hospital on or about November 14, 2005. (Compl. ¶ 11.) Plaintiff was hired by Nursing Manager Deborah Wiese ("Wiese"). (Pl.'s Dep. 120, Dec. 21, 2009.) Wiese was Plaintiff's unit supervisor and the person Plaintiff reported to. (Id. at 50.) Plaintiff usually worked the overnight shift at the Frankford/Torres Hospital. (Id. at 40, 47-48, 173.) Plaintiff was assigned to patients in the Telemetry Department in Unit 2A. (Id. at 47-48.) Because the patients in Unit 2A need continuous monitoring, Plaintiff was required to inform the Registered Nurses ("RNs") on duty any time she took a break or otherwise left the patient care area. (Id. at 52-53.) Plaintiff had to wear a personal locator so that the staff could easily locate her if necessary. (Id. at 240-41.) Hourly employees were required to record the time that they left and returned to work if they left for non-work related reasons. (Employee Handbook, Def.'s Ex. B. at DEF028.)

Plaintiff's first performance review is dated March 10, 2006. (Jubilee-Miller 3 Month Performance Review, Def.'s Ex. F.) The March 10, 2006 review is very positive and states that Plaintiff, "demonstrated the Knowledge, Skills, Ability, and Performance needed to pass the Introductory Employment Period." (Id.)

Plaintiff's next performance review is dated June 15, 2006. (Jubilee-Miller Employee Performance Review 2006, Def.'s Ex. G.) The June 15, 2006 review states that Plaintiff, "is attentive to detail and accuracy, committed to excellence, looks for improvements continuously, monitors quality levels, owns/act on quality problems." (Id. at 3.) The review also states that Plaintiff "can be relied on to complete her assignments" and that she exceeds expectations for customer focus/service. (Id. at 1, 3.) Overall, Plaintiff received a rating of 3.51 out of 5.0. (Id. at 6.) Plaintiff was evaluated as exceeding expectations in eight (8) areas and meeting expectations in nine (9) areas. (Id.) On August 11, 2006, Plaintiff was written up for lateness and for calling out on several occasions. On February 2, 2007, Plaintiff received a final warning for taking breaks without informing other staff members of where she was going and for leaving her personal locator at one of the computers so that it registered that she was in the unit. Plaintiff testified that others were allowed to leave the unit without permission and were not reprimanded. (Pl.'s Dep. at 97.) Plaintiff testified that she did not know whether other employees had permission to leave the building for breaks. (Id. at 301, 325.) However, she testified that the policy of requiring employees to clock in and out was not applied to all staff members. (Id. at 302.) Plaintiff testified that the February 2, 2007 final warning was her first write-up. (Id. at 92-93.) Later, she acknowledged that she was written up about attendance in 2006, but stated that she did not know, at the time of the write-ups, that she was being written up. (Id.)

Plaintiff further testified that she never left the unit without alerting the nursing staff. (Id. at 89.) Plaintiff testified that she left the unit to go to Dunkin Donuts without clocking out only because other staff members told her that she did not have to clock out. (Id. at 90, 302.) Plaintiff stated that Wiese told her that she (Wiese) knew that other staff members went to Wawa or Dunkin Donuts, but that the policy required staff members to clock out. (Id. at 97.) Plaintiff responded, "[w]ell, if you are going to write me up for policy, then you should write everybody else up too because they left the building and did not clock in or out." (Id.) Wiese then told the Plaintiff, "I am not talking about anybody else, I am talking to you," and then said, "[o]ne more writeup, sister, and you are out the door." (Id. at 97-98.)

B. The March 23, 2007 Incident

On March 22-23, 2007, Plaintiff worked the overnight shift from approximately 7:00 p.m. until 7:30 a.m. (Id. at 11-12.) From 11:00 p.m. until 7:00 a.m., there were two CNAS assigned to Unit 2A. (Id. at 48.) The two CNAs divided the patients in Unit 2A between themselves and did not work with the same patients. (Id.) On March 23, 2007, Plaintiff was responsible for a patient who had several episodes of explosive diarrhea. (Id. at 13.) Plaintiff, alongside the RN, was responsible for cleaning the patient. (Id. at 14.) The patient had episodes of explosive diarrhea "more than twice" and "on at least five or six occasions" during Plaintiff's shift. (Id. at 14, 30.)

Plaintiff testified that the patient was considered to be able to basically care for himself, but that he tried to go to the toilet himself and fell. (Id. at 14.) As a result, there was blood and feces on the floor. (Id.) Plaintiff, with the assistance of the RNs, put "blue chucks" (mats) on the floor at around 4:00 or 5:00 a.m. and at around 6:30 a.m. (Id. at 15.) Plaintiff and the RNs, including Paula Durkalac, Michael Gregorie, Pam Hueber, and "Maryanna," cleaned the blue chucks several times. (Id. at 15, 19-20.) Plaintiff testified that she and the RNs cleaned the patient more than one time and that she last remembered cleaning the patient right before the end of her shift at around 6:30 or 7:00 a.m. (Id. at 21-22.) Plaintiff testified that she "probably" went back to check on the patient at around 7:00 a.m. and that he was clean at that time. (Id. at 22.) At that time, there was just one blue chuck, which was clean, left in the bathroom as a mat. (Id. at 23.) From 7:00 a.m. until 7:30 a.m., Plaintiff was preparing to report to the CNA who was relieving her. (Id. at 41-42.) On that same day, March 23, 2007, Plaintiff took leave for surgery with permission pursuant to the Family Medical Leave Act. (Id. at 12.)

Plaintiff testified that she kept in contact with Wiese to let her know how she was recovering from surgery. (Id. at 57-58.) Plaintiff testified that when she spoke with Wiese on the phone in August, Wiese said that "she couldn't wait for me to come back to work but we had to go over my schedule, and that's what she called me in for." (Id. at 58.) On August 6, 2007, Plaintiff returned from medical leave and met with Wiese. (Pl.'s Reply Br. at 4; Pl.'s Dep. at 60.) Plaintiff testified that Wiese read off writeups for inappropriate contact with a patient and for neglect. (Pl.'s Dep. at p. 60.) Plaintiff recalled receiving prior writeups for attendance problems in 2006 and for taking unauthorized breaks in 2007. (Id. at 61.) Plaintiff stated that she signed the 2006 and 2007 writeups at the time she received them, but that she did not read them. (Id. at 62.) At the August 6, 2007 meeting, Plaintiff explained what happened with the patient on March 23, 2007 and stated that she would never leave a patient covered in feces. (Id. at 64.) Plaintiff agreed that leaving a patient in such a state was abuse and that if she had left a patient like that, she deserved to be fired. (Id. at 67.) Plaintiff believed that Wiese made the decision to fire her because of her race. (Id. at 89.)

On August 6, 2007, Wiese completed a Performance Improvement Corrective Action form. (Pl.'s Ex. D., doc. no. 22-1.) The Performance Improvement Corrective Action form states that Plaintiff had attendance/lateness issues on several dates, including 9/16/06, 10/21/06, 10/27/06, 12/25/06, 1/7/07, and 8/11/06. (Id. at DEF448.) Wiese indicated that Plaintiff relied on others for solutions in problems that arise in her work and that "has left patients in unsafe conditions. . . ." (Id. at DEF449.) For work environment/safety, Wiese commented that, "Michelle pays little attention to her work environment. She often ignores potentially hazardous situations, assuming others will take responsibility for a safe workplace. Michelle must immediately begin to take responsibility for keeping the workplace safe, clean, uncluttered, and free of hazards." (Id. at DEF450.) Plaintiff received an overall rating of 1.96 out of 5.0. (Id. at DEF452.) The Performance Improvement Corrective Action form states as the consequence for Plaintiff failing to come to work on time that "further progression [was] in progress." (Id.) Plaintiff signed this form indicating that she had received written counseling for her attendance/lateness issues. (Id.)

On August 6, 2007, Plaintiff also received a Performance Improvement Corrective Action form discharging her employment. (Def.'s Ex. K at DEF155.) Plaintiff refused to sign this form indicating that she wanted to have a hearing and/or meeting because the subject of her termination was only brought to her attention on August 6, 2007 and not at the time it allegedly occurred. (Id.) Attached to the Performance Improvement Corrective Action form was Wiese's account of the events that occurred on March 23, 2007. (Id. at DEF156.) Wiese wrote that when she arrived at the unit at 7:45 a.m. on March 23, 2007, "[t]he smell of feces was very overwhelming." She was told that Plaintiff failed to clean a patient after he had an episode of massive explosive diarrhea and that as a result, the patient fell. The report indicates that Plaintiff bathed the patient at 4:00 a.m., but failed to clean ...

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