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Marie Pierre Deserne v. Madlyn and Leonard Abramson Center For Jewish Life

May 17, 2012

MARIE PIERRE DESERNE
v.
MADLYN AND LEONARD ABRAMSON CENTER FOR JEWISH LIFE, INC.



The opinion of the court was delivered by: O'neill, J.

MEMORANDUM

Now before me is a motion for summary judgment filed by defendant Madlyn and Leonard Abramson Center for Jewish Life, Inc. For the reasons that follow, I will grant defendant's motion.

BACKGROUND

Plaintiff Marie Pierre Deserne claims that defendant, her former employer, discriminated against her. Counts III and IV of plaintiff's complaint alleging claims based on disability discrimination are all that remain in this action. I previously dismissed plaintiff's race-based discrimination claims.*fn1 In Count III, plaintiff asserts a claim under the Pennsylvania Human Relations Act, 43 P.S. § 3951, et seq. She asserts that her "protected class is disability -- facial disfigurement being Black and ethnically, a West African National from the Country of Haiti and Plaintiff was subjected to intentional discrimination solely because of her facial disfigurement -- disability." Compl. ¶ 54. In Count IV, she asserts a claim under Title VII of the Civil Rights Act of 1964. She alleges that her "protected class is disability -- facial disfigurement and Plaintiff was subjected to intentional discrimination solely because of her facial disfigurement -- disability." Compl. ¶ 69.

Plaintiff claims that she was disabled because she developed a skin condition identified as "exogenous ochronisis" in or about 2006. Compl. ¶ 10. Two of her treating physicians were deposed. One, Dr. Christina Chung, testified that plaintiff had a condition identified as exogenous ochronosis. Def's Ex. 4 at 45:1-46:1; Def.'s Ex. 4b. The other, Dr. Toby Shaw, testified that plaintiff had a condition known as seborrheic dermatitis with Litchenfield plaques. Def.'s Ex. 5 at 11:13-12:23. Regardless of her diagnosis, each of plaintiff's treating physicians concluded that "[h]er skin condition does not preclude her from participating in any work or activity," Def.'s Ex. 4 at 21:20-22; Def's Ex. 4a at 1, and that she was not "physically limited" as a result of her condition. Def.'s Ex. 5 at 14:16-17. Indeed, plaintiff acknowledges that her skin condition "does not preclude [her] from physically participating in any work or activity, whatsoever." Compl. ¶ 10. She has admitted that she could perform the essential functions of her job. Compl. ¶ 16; Def.'s Ex. 4 at 21-23; Def's Ex. 7 at 33:16-21. At her deposition, plaintiff conceded that the only impact of her skin condition was that she was itchy. Def's Ex. 7 at 33:24-34:15.

Defendant hired plaintiff in 2002 as a Certified Nursing Assistant.*fn2 Compl. ¶ 7. Her job duties included assisting nursing home residents with personal care; rendering assistance with bathing, personal hygiene, dressing, feeding and recreational activities; interacting with and observing assigned residents; and reporting notable changes regarding the residents. Compl. ¶ 13, Def's Ex. 2 at 1-2.

In April 2009, plaintiff was told that her job performance was "not good." Def.'s Ex. 7 at 64:11-24, 6613-14. In June 2009, a number of residents who were under plaintiff's care asked that she not be their Certified Nursing Assistant. Def.'s Ex. 10 at DEF0292. At the time, defendant noted that "[w]e cannot continue to re-arrange assignments because residents refuse to allow Marie to care for them." Id. According to defendant's discipline report for plaintiff, residents complained "regarding [plaintiff's] poor communication skills and/or poor care."

Def.'s Ex. 10 at DEF0292. Plaintiff testified that the residents did not complain that she was not doing her job, but complained about her face; that her "face is ugly." Pl.'s Ex. 3 at 40:5-13. Millie Steur, one of plaintiff's supervisors, testified, however, that "[t]here was no discussion from Marie at any time with [Steur] about any resident or any family harassing her or complaining about her face." Def.'s Ex. 11 at 22:20-23.

Defendant took steps to respond to concerns about plaintiff's performance. The June 2009 discipline report noted that plaintiff had "already received one-on-one coaching twice with educator and trainer. Received 2 videos and one self study on communication. Completed one month performance improvement plan with supervisor. Referred to ESL classes." Id. Despite this training, in July 2009, a floor nurse working with the residents to whom plaintiff was assigned wrote a note to her supervisor complaining that plaintiff "continues to tell [a resident] to move her legs and we both know that [the resident] has [multiple sclerosis] and cannot move her legs. I have to continually re-educate Marie on [the resident's] disease process and that she is unable to move her legs on her own but she insists on telling [the resident] to move her legs on the footrest of the lift." Def.'s Ex. 13.

Plaintiff was terminated in July 2009. Compl. ¶ 24. When asked why she was terminated, plaintiff responded that defendant said she was being fired because a resident complained that her face was "ugly." Def.'s Ex. 7 at 88:15-89:8. Plaintiff testified that she was told she was "going to be fired because the residents complain for me my face is ugly" [sic] and because a resident had complained that the resident had "lost a purse." Pl.'s Ex. 3 at 96:15-17; see also ; Pl.'s Ex. 3 at 117:4-7, 123:15-16. Defendant contends that it "terminated plaintiff for cause, based on poor performance," Dkt. No. 17, 16th Affirmative Defense, and that she "was not qualified to perform the essential duties of her job, or more accurately, she was not receptive to opportunities provided to help her to improve her performance." Dkt. No. 31-2 at 21.

STANDARD OF REVIEW

The party moving for summary judgment has the burden of demonstrating that "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a); see Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). If the movant sustains its burden, the non-movant must set forth facts demonstrating the existence of a genuine dispute. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). A dispute as to a material fact is genuine if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. A fact is "material" if it might affect the outcome of the case under governing law. Id. The "existence of disputed issues of material fact should be ascertained by resolving all inferences, doubts and issues of credibility against" the movant. Ely v. Hall's Motor Transit Co., 590 F.2d 62, 66 (3d Cir. 1978) (citations and quotation marks omitted).

To establish "that a fact cannot be or is genuinely disputed," a party must:

(A) cit[e] to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), ...


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