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Aimee L. Fox v. Premier Immediate Medical Care

December 3, 2012

AIMEE L. FOX,
PLAINTIFF,
v.
PREMIER IMMEDIATE MEDICAL CARE, LLC, DEFENDANT.



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

MEMORANDUM OPINION

Plaintiff, Aimee Fox, has sued her former employer, Premier Immediate Medical Care, LLC ("PIMC"), under Title VII of the Civil Rights Act of 1964 and the Pennsylvania Human Relations Act ("PHRA"). Plaintiff alleges that Defendant subjected her to disparate treatment on the basis of her sex. Plaintiff has also alleged sexual harassment through the creation of a hostile work environment and retaliation. Before the Court is Defendant's motion for summary judgment on the entirety of Plaintiff's claims. For the reasons that follow, we will grant Defendant's motion in part and deny the motion in part.

I. FACTUAL AND PROCEDURAL BACKGROUND*fn1

Defendant, Premier Immediate Medical Care, LLC (hereinafter "PIMC"), is an acute medical care facility, providing non-surgical, emergency treatment to walk-in patients. Plaintiff worked for Defendant as a medical assistant from July 7, 2008 through October 6, 2008, performing both clinical and administrative tasks. Plaintiff alleges that on September 6, 7, and 8, 2008, she was subjected to sexual harassment by Defendant's employee, Dr. Conti, and that as a result of her complaints to members of management, Defendant terminated her employment. (Def.'s State. Facts

¶¶ 1-4; Compl. ¶ 20.)

In support of these claims, and in opposing Defendant's motion for summary judgment, Plaintiff points to her deposition testimony, which reflects that between the dates of September 6 and September 8, 2008, Dr. Conti:

-- Stated, in front of a group of people, that it looked like Plaintiff was holding a penis when she was eating a banana (Fox Dep., p. 63);

-- Rested his hand on Plaintiff's shoulder numerous times (Id., pp. 64-65); -- Stopped at the front desk where Plaintiff worked several times each day to talk with her (Id., pp. 70, 79, 95); -- Followed Plaintiff into the lunchroom (Id., p. 81); -- "Pulled out [a] packet of [Plaintiff's] pictures" and "started looking through them" without Plaintiff's consent (Id., p. 81); -- Upon looking at Plaintiff's pictures, told Plaintiff "that for one of his hobbies he likes to take pictures of girls" (Id., p. 81); -- Told Plaintiff that she was "very pretty," had a "really nice body" and "really nice legs" (Id., p. 100); -- Followed Plaintiff while she walked to an employee bathroom so closely that he almost bumped into her as she reached the door (Id., pp. 100-03); -- Rubbed Plaintiff's neck without her consent on a day that she had a sore neck (Id., p. 131);

-- Attempted to give Plaintiff the prescription drug Fioricet*fn2 from his own pocket for her sore neck, despite Plaintiff initially refusing because Fioricet had made her feel dizzy and sick to her stomach in the past (Id., p. 132);

-- Continued to give Plaintiff additional Fioricet pills and instructed her to take them until he had given her seven pills over a span of five hours (Id., pp. 132-37);

-- Asked Plaintiff if she was feeling drowsy and needed to lie down, after she had lied to Dr. Conti and told him that she had taken all of the pills received (Id., pp. 137-38); and

-- Told Plaintiff to make a patient chart for herself after giving her the Fioricet so that he could examine her, but told her not to tell anyone he had rubbed her neck or supplied her with the pills because they were his "personal medication" (Id., pp. 137-38).

On the first day of the alleged harassment, September 6, 2008, Dr. Taranth, Medical Director of PIMC, told Plaintiff "to be careful" because Dr. Conti had engaged in similar behavior with another medical assistant, Devon Strobel. (Fox Dep., pp. 60-61.) In conjunction with this evidence and to further support her hostile work environment claim, Plaintiff also points to the testimony of her co-workers, Devon Strobel and Ashley Ducoine, as well as Defendant's Human Resources Director, Melanie Balestra,*fn3 reflecting that over the months of June and July 2008, Dr. Conti:

-- Called Strobel "Pinky" because he had seen that she was wearing pink underwear while she bent over to fix a copier (Strobel Dep., pp. 18, 36-38; Ducoine Dep., p. 18; Balestra Dep., p. 17);

-- Told Strobel and Ducoine "about a date he was going on" and "how he was going to perform oral sex on th[e] woman and [demonstrated] it on an egg roll that he had been eating" (Strobel Dep., p. 18; see also Ducoine Dep., pp. 18, 26); -- Told Strobel that "he did professional private photography and constantly would ask [her] to let him photograph [her]" (Strobel Dep., p. 19; see also Ducoine Dep., p. 19); -- Would continuously follow Strobel around the building (Strobel Dep., p. 19); -- Kept a folder at work of pictures of women he met online, making comments about their breasts (Id., pp. 31-33); -- Insisted on listening to Strobel's chest when she had a minor infection in her toe, "lifted [her] shirt and said, 'oh, hey, nice tattoo'" (Id., pp. 20, 42-43); -- "Made [Strobel] weigh [herself]" while examining her, even though she told him she did not want to be weighed, and then "would tease [her] about [her] weight" (Id., p. 20); -- Told Strobel that she was not allowed to leave the premises for lunch, and that if she did, he would report her to Dr. Silverman, the President and CEO of PIMC (Id., pp. 21-22); -- "Demand[ed] that [Strobel] let him examine [her]" when she had heart palpitations (Id., p. 44); -- Stood outside the door while an EKG was performed on Strobel, continuously knocking on the door and "asking to come in so he could look at it" (Id., pp. 44-48); -- Attempted to look over Ducoine's shoulder to see Strobel in her bra when Ducoine answered the door during the EKG (Id., pp. 48-49; Ducoine Dep., pp. 36-37); -- Threatened to call Dr. Silverman the day after he was kept out of the room during the EKG, saying he would report Strobel for "talking about a[n] [employee] handbook" and being late, although Strobel insisted that she was not late (Strobel Dep., Ex. 1, pp. 2-3); and -- Hugged Strobel without her consent and said "I'm so glad your [sic] finally letting me touch you[,] you smell so good" (Strobel Dep., Ex. 1, p. 3).

On September 10, 2008, Plaintiff met with Dr. Taranth and made complaints about Dr. Conti's behavior. (Taranth Dep., pp. 34-35.) On the same date, Plaintiff also emailed a detailed account of Dr. Conti's conduct to Balestra, and Jerri Meijas, the Nursing Manager. (Fox Dep., Ex. D-2; Pl.'s State. Facts ¶ 13.) Several days after Plaintiff's complaint, a meeting was held with Plaintiff, Strobel, Ducoin, Meijas, and Balestra to discuss Dr. Conti's behavior. During this meeting, Plaintiff gave Balestra the Fioricet pills that Dr. Conti had given her on September 8, 2008. (Pl.'s State. Facts ¶ 84.) Balestra described Plaintiff as "one scared kid sitting there." (Balestra Dep., p. 73.)

Following the meeting, Dr. Taranth reviewed the work schedule to ensure that Plaintiff and Dr. Conti would not work together again. (Def.'s State. Facts ¶¶ 120-24.) Balestra gave the Fioricet pills to Dr. Silverman and Jeff Rafsky, Chief Operating Officer for Defendant. Balestra testified at deposition that any time she would ask Dr. Silverman, Rafsky or Meijas about responding to Plaintiff's complaint, she received no response. (Balestra Dep., pp. 30-31, 71.) At the time this occurred, Defendant had no employee handbook and provided no training on discrimination and harassment. (Dep. Hanth, p. 12; Dep. Balestra, p. 8; Dep. Conti, p. 15.)

Dr. Conti testified that he was never informed by Defendant that Plaintiff and Strobel had made complaints of sexual harassment against him. (Dep. Conti, pp. 33-34, 17-18.) Dr. Conti was temporarily removed from Defendant's schedule on September 11, 2008, due to the fact that his medical license had been placed on probation*fn4 and that he was involved in creating a bomb scare at PIMC. (Silverman Dep., pp. 51-52; Conti Dep., p. 47.) Dr. Silverman allowed Dr. Conti to return to work for PIMC on November 28, 2008. (Pl.'s State. Facts ¶ 100.)

Plaintiff's employment was terminated on October 6, 2008. Defendant posits that Plaintiff was terminated not for her complaints about Dr. Conti or her gender, but because she had falsified her timesheets in order to receive extra pay, and that she had a poor work performance. (Def.'s Br. 5, 9.) Defendant's records demonstrate, and Plaintiff agrees, that a "Pre 90-day probation meeting" had been held on August 28, 2008 "to discuss [Plaintiff's] strengths, weaknesses [and] progress to th[at] point." (Def.'s Br., Ex. B, p. 4.) Defendant's records also show that a meeting was held one day later, on August 29, 2008, to "discuss[ ] improper times on timesheet/coming in late/calling out a lot . . . disappears a lot/gossips/complains too much/disrespects mgmt. to other employees." (Id.) Plaintiff denies that this second meeting ever took place, and asserts that she was never warned about any problems with timesheets or about her work performance prior to her termination. (Fox Dep., pp. 178-80.)

After Plaintiff's termination, she worked for the following employers: 1) Any Lab Test Now! in October of 2008; 2) Proserpi-Schlechter Center for Plastic Surgery as a medical assistant from January 2009 through December 2009; and 3) Chili's Restaurant as a waitress from December 2009 through March 2010. Plaintiff was involved in a car accident in September 2010 wherein her car was totaled, and she claims her lack of transportation has impeded her from gaining subsequent employment. She has applied for four positions within walking distance of her home since that time. (Pl.'s State. Facts ¶¶ 137-38, 140-43.)

On September 7, 2010, Plaintiff filed a complaint against her former employer alleging that Defendant had discriminated against her on the basis of her sex in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e, et. seq. ("Title VII"), as well as the Pennsylvania Human Relations Act ("PHRA").*fn5 Specifically, Plaintiff brings claims of disparate treatment (Count I), as well as sexual harassment creating a hostile work environment and retaliation (Count II). (Compl. ΒΆΒΆ 28-29, 32-33, 43-44, 49.) On March 9, 2012, ...


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