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Frank A. Pugliese v. Adult Services Unlimited

June 6, 2012


The opinion of the court was delivered by: :(judge Conaboy)


Here we consider the Motion for Summary Judgment (Doc. 21) filed by Defendant seeking judgment in its favor on all claims raised in Plaintiff's Complaint (Doc. 1). In the underlying action, Plaintiff claims he was discriminated against based on his gender and age when he was terminated from his position at Defendant's facility in Plains, Pennsylvania. (See Doc. 1.) For the reasons discussed below, we conclude summary judgment is warranted and grant Defendant's motion.

I. Background*fn1

A. Factual Background

Defendant Adult Services Unlimited ("ASU" "Defendant") is a subsidiary of Extended Health Services, Inc., ("Extendicare").

(Statement of Undisputed Material Facts, Doc. 24 ¶ 1.) ASU operates twenty rehabilitation centers in Pennsylvania which are long-term care facilities providing physical and occupational therapy. (Id.)

Plaintiff began working for Defendant's predecessor company in 1993 as an administrator. (Doc. 24 ¶ 2.) He was responsible for seven facilities and about fifty employees. (Doc. 24 ¶ 4.) For a period of two to three years, until June 2008, Plaintiff reported to David Mahaffey who was a vice-president. (Doc. 24 ¶ 5.) Plaintiff and Mahaffey (a male age 58) had a good relationship and were friends as well as colleagues. (Doc. 24 ¶ 6.)

After revenues dipped in 2005 and 2006, Mahaffey sent Plaintiff an e-mail on May 19, 2006, discussing revenues and alternate plans. (Doc. 24 ¶ 8.) Sometime thereafter, when ASU continued to financially underperform, Mahaffey asked Plaintiff to prepare a report addressing the reasons for the problem. (Doc. 24 ¶ 9.) Plaintiff identified reoccurring personnel issues, employee turnover, employee morale, marketing, compliance and quality of care. (Doc. 24 ¶ 10.)

Prior to separating from Extendicare on June 29, 2008, Mahaffey prepared a Transition Summary in which he addressed the financial underperformance and personnel issues as well as Plaintiff's management style. (Doc. 24 ¶¶ 12-16.) Mahaffey noted that Plaintiff had an "insufficient grasp of the factors influencing his business," stated that "Frank is a friend of mine, but I don't feel he is the person for the job," and recommended that ASU consider a change in leadership. (Doc. 24 ¶¶ 16-18.) Plaintiff did not see the Transition Summary but testified he knew Mahaffey was not happy with him for a number of reasons. (Doc. 24 ¶ 19.)

In August 2008, Julie Skurek replaced Mahaffey and became Plaintiff's direct supervisor. (Doc. 24 ¶ 21.) Skurek, a fifty year old female, had eight directors (five women and three men) reporting to her, including Plaintiff. (Doc. 24 ¶ 22.) After her promotion, Skurek visited all the directors reporting to her. (Doc. 24 ¶ 25.) Skurek visited Plaintiff in August 2008. (Doc. 24 ¶ 26.) Defendant states the purpose of the visit was to work on the budget (Doc. 24 ¶ 28); Plaintiff states the purpose of the visit was to review his business performance (Plaintiff's Response to Defendant's Statement of Undisputed Material Facts, Doc. 27 ¶ 28). Skurek reported that during her visit she saw many "red flags" with Plaintiff's facilities, including excessive expenditures, decreasing revenues and financial irregularites. (Doc. 24 ¶ 29.) She informed Plaintiff about these issues. (Doc. 24 ¶ 30.) Defendant asserts that a heated exchange ensued (Doc. 24

¶ 30); Plaintiff states he told Skurek he would have to work on developing a new budget (Doc. 27 ¶ 30).

Following her visit to Plaintiff's facilities in Pennsylvania, Skurek reported to her supervisor, Sharon Gawronski, about her issues of concern. (Doc. 24 ¶ 31.) Gawronski, who at the time was ASU's Vice President of Rehabilitation, decided to initiate an audit of Plaintiff's facilities and asked Tim Detary, ASU's Vice President of Human Resources, to join her in visiting Plaintiff. (Doc. 24 ¶¶ 32-34.) The visit took place on September 10, 2008. (Doc. 24 ¶ 35.) Defendant asserts Gawronski and Detary told Plaintiff the reason for the visit was there had been allegations of financial impropriety and employee complaints (Doc. 24 ¶ 36); Plaintiff states that he was not told this (Doc. 27 ¶ 36). Pursuant to company policy, Plaintiff was suspended pending the outcome of the investigation. (Doc. 24 ¶ 36.)

After the suspension, Gawronski and Detary visited with employees who had complaints about Plaintiff. (Doc. 24 ¶ 36.) Detary investigated several issues, including a "slush fund" which Detary believed to be problematic. (Doc. 24 ¶¶ 39-40.) Detary then contacted ASU's Director of Internal Audit, Dylan Mann, who arrived the following day. (Doc. 24 ¶¶ 40-41.) Mann conducted an internal audit which revealed a number of violations of company policy, including the above-mentioned "slush fund," directing employees to override company policies including purchasing alcohol as part of marketing efforts, travel expense issues, directing sheriff sales of property of patients who could not pay their bills without keeping records, and improper award of a cleaning contract.

(Doc. 24 ¶¶ 42-43, 45-47.) The investigators reviewed both of Plaintiff's computers and found pornography on one of them. (Doc. 24 ¶ 48.) Additional pornographic material was found in the bathroom adjacent to Plaintiff's office. (Doc. 24 ¶ 49.) Plaintiff admits he maintained pornography on the company computer, viewed pornography on the computer in his office and e-mailed pornography from the computer. (Doc. 24 ¶¶ 50-51.) Plaintiff asserts this was done on his own personal AOL account and external storage drives during his personal time and not on company time using a corporate account. (Doc. 27 ¶¶ 50-51.)

The investigators put together an audit report which summarized their findings. (Doc. 24 ¶ 52.) Plaintiff disagrees with some of the findings, but he does admit an impropriety regarding a check written to himself dated February 5, 2007. (Doc. 24 ¶¶ 53-54.) The decision to discharge Plaintiff was made by Detary and Gawronski based on the findings of the audit. (Doc. 24 ¶ 55.) Detary was aware of the Transition Summary in which Mahaffey recommended Plaintiff's discharge. (Doc. 24 ¶ 58.) Skurek did not make the decision to terminate Plaintiff. (Doc. 24 ¶ 56.) Detary informed Plaintiff of his discharge by phone and followed up with a termination letter sent on September 16, 2008. (Doc. 24 ¶¶ 57, 59.)

Skurek hired Melissa McLaughlin, a forty-five year old female, as Plaintiff's replacement in May 2009. (Doc. 24 ¶ 60.) Of the thirty employees in similar positions to Plaintiff's, twenty are more than forty years of age and nine are older than Plaintiff. (Doc. 24 ¶ 65.) Almost half of the similarly-situated employees are male. (Doc. 24 ¶ 65.) The decision maker in this case, Detary, is older than Plaintiff. (Doc. 24 ¶ 66.)

Plaintiff attributes certain comments to Skurek, including that she held weekly conference calls from which Plaintiff was excluded, referring to them as a "chick thing," she said Plaintiff was Mahaffey's "fair-haired boy," and, upon learning Plaintiff's age during a dinner conversation, she commented "oh, I didn't know you were that old." (Doc. 24 ΒΆΒΆ 61, 63-64.) Plaintiff denies Defendant's statement that Skurek had a number of ...

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