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Phyllis Oliver v. Clinical Practices of the University of Pennsylvania

February 4, 2013


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


Plaintiff, Phyllis Oliver, has brought suit againstDefendants, Clinical Practices of the University of Pennsylvania ("CPUP"), Presbyterian Medical Center of the University of Pennsylvania Health System and Penn Presbyterian Medical Center, alleging discrimination on the basis of race, disability and age.*fn1

Before the Court is Defendants' Motion for Summary Judgment. For the reasons set forth below, the motion will be granted.


Unless otherwise indicated, the following facts are undisputed*fn2

On October 18, 2006, Plaintiff began working for CPUP as a full-time patient service representative in the Department of Surgery at Penn Presbyterian Medical Center. Her duties included greeting patients, scheduling appointments, answering phones, collecting patient insurance cards and pulling charts. Plaintiff was also responsible for opening the doors for the arrival of patients and certain phone operations. During different time periods, Plaintiff's supervisors were either Iris Bryant, Loren Gleason or Lori Hulse.*fn3 (Defs.' Statement of Undisputed Facts ¶¶ 1, 3-4, 7, 10-12.)
Throughout her employment, Plaintiff was subject to CPUP's policies, including a constructive discipline policy and performance improvement and progressive steps policy.*fn4 The former policy requires, among other things, the termination of an employee who intentionally causes harm to employees, patients or visitors. The latter policy provides for progressive steps for performance improvement, beginning with a "Coaching,"*fn5 then a "First Written Warning,"*fn6 "Second Written Warning,"*fn7 and "Final Warning."*fn8 This policy also sets out an illustrative list of grounds for termination.*fn9 (Id. ¶¶ 16-17, Ex. K, at 3, Ex. L, at 4-7.)

In January 2007, Plaintiff was diagnosed with colon cancer and underwent treatment at Penn Presbyterian Medical Center. After her surgery, Plaintiff applied for and was granted a leave of absence. Plaintiff returned to work in March 2007. (Id. ¶¶ 112-13, 117, 121.)

During the course of her employment, Plaintiff received several verbal and written warnings and reprimands for violating CPUP's policies. For example, Plaintiff received verbal reprimands from Bryant for eating at the front desk. In addition, Bryant admonished Plaintiff for lateness and left post-it notes on Plaintiff's computer that said "see me" when she was late. Plaintiff contends that her white co-workers were not disciplined for committing the same or similar violations. Plaintiff was also issued numerous written warnings from Bryant for absenteeism.*fn10 As a result of these absences, Plaintiff's discipline level was raised to the "Second Written Warning" level. Plaintiff also received a "Coaching Record" from Hulse in June 2008, after a doctor reported that he had witnessed Plaintiff addressing a colleague in a rude tone and derogatory manner. (Id. ¶¶ 23-25, 31, 36, 40, 57, 65, 70, 74.)

On September 8, 2008, Hulse terminated Plaintiff after an interaction between Plaintiff and a patient, Mr. Grecu, in which the patient became visibly upset. Defendants advised Plaintiff by letter that she was being terminated because she was on a "Second Written Warning" and because of the severity of the incident with the patient, which Defendants deemed a violation of the standards of professional conduct and offensive and inappropriate behavior. Plaintiff contends that she was falsely accused of being argumentative with the patient. (Id. ¶¶ 82, 99-101.)

On March 5, 2009, Plaintiff filed a complaint with the Pennsylvania Human Relations Commission ("PHRC"), alleging discrimination on the basis of race, age and disability.After receiving a right to sue letter, Plaintiff initiated the instant case. On August 29, 2011, Defendants filed their Motion for Summary Judgment. The matter is now ripe for disposition. (Id. ¶¶ 142, 148; Compl. ¶ 11.)


Under Federal Rule of Civil Procedure 56(a), summary judgment is proper "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." An issue is "genuine" if there is a sufficient evidentiary basis on which a reasonable jury could return a verdict for the non-moving party. Kaucher v. Cnty of Bucks, 455 F.3d 418, 423 (3d Cir. 2006) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). A factual dispute is "material" it if might affect the outcome of the case under governing law." Id. (citing Anderson, 477 U.S. at 248). Under Rule 56, the court must view the evidence in the light most favorable to the non-moving party. Galena v. Leone, 638 F.3d 186, 196 (3d Cir. 2011). However, "unsupported assertions, conclusory allegations, or mere suspicions" are insufficient to overcome a motion for summary judgment. Schaar v. Lehigh Valley Health Servs., Inc., 732 F. Supp. 2d 490, 493 (E.D. Pa. 2010) (citing Williams v. Borough of W. Chester, Pa.,891 F.2d 458, 461 (3d Cir. 1989)).

The movant always bears the initial responsibility of informing the district court of the basis for its motion and identifying those portions of [the record] which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Where the non-moving party bears the burden of proof on a particular issue at trial, the moving party's initial Celotex burden can be met by showing that the non-moving party has "fail[ed] to make a showing sufficient to establish the existence of an element essential to that party's case." Id. at 322.

After the moving party has met its initial burden, summary judgment is appropriate if the non-moving party fails to rebut the moving party's claim by "citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations . . . , admissions, interrogatory answers, or other materials" that show a genuine issue of material fact or by "showing that the materials cited do not establish the absence or presence of a genuine dispute." FED. R. CIV. P. 56(c)(1)(A). Only evidence which is admissible at trial may be considered in ruling on the motion. Countryside Oil Co., Inc. v. Travelers Ins. Co., 928 F.Supp. 474, 482 (D.N.J. 1995).


A. Timeliness of Plaintiff's Claims Against Iris Bryant

Defendants first argue that Plaintiff's claims of discrimination and harassment by Iris Bryant, which occurred more than 300 days before Plaintiff filed a charge of discrimination, should be dismissed as untimely.

A charge of discrimination that arises in Pennsylvania must be filed within 300 days after the alleged unlawful employment practice occurred. Bullock v. City of Phila., 250 Fed. Appx. 512, 514 (3d Cir. 2007). Here, it is undisputed that Plaintiff filed a complaint with the PHRC on March 5, 2009. Thus, only those claims which occurred within the prior 300 days, or after approximately May 8, 2008, are actionable. Plaintiff's claims of discrimination against Iris Bryant, however, occurred between March 2007-when Plaintiff returned from her surgery-and April 2008-when Bryant left the Department of Surgery. Because more than 300 days had passed before Plaintiff filed her charge of discrimination, her claims against Bryant are barred absent some exception to the 300-day rule.

One such exception is the continuing violation theory, which Plaintiff asserts is applicable here. Under this theory, an act that falls outside the applicable limitations period may be deemed timely ifa plaintiff shows that: (1) it is part of an "ongoing practice or pattern of discrimination" by the defendant; and (2) the "last act evidencing the continuing practice falls within the limitations period." Rush v. Scott Specialty Gases, Inc., 113 F.3d 476, 481 (3d Cir. 1997); Shenkan v. Potter, 71 Fed. App'x. 893, 895 (3d Cir. 2003); see also West v. Phila. Elec. Co., 45 F.3d 744, 755 (3d Cir. 1995) ("Once the plaintiff has alleged sufficient facts to support use of the continuing violation theory, . . . the 300-day filing period becomes irrelevant . . . ."). To establish an ongoing pattern, a plaintiff must demonstrate "more than the occurrence of isolated or sporadic acts of intentional discrimination." Id. at 755 (quoting Jewett v. Int'l Tel. & Tel. Corp., 653 F.2d 89, 91 (3d Cir. 1981)).

Before examining the specific acts in question, we generally observe that much of the conduct Plaintiff points to regarding Bryant seems to pertain to her displeasure with how she was treated. However, "Title VII is not a shield against harsh treatment at the work place; it protects only in instances of harshness disparately distributed." Jackson v. City of Killen, 654 F.2d 1181, 1186 (5th Cir. 1981).

We also note that in employment cases, the continuing violation analysis typically arises in the context of hostile work environment claims. Here, while Plaintiff has raised a hostile work environment claim in her response in opposition to Defendants' motion for summary judgment, we note that she points to the conduct of Bryant-not her other supervisors-to support this claim.

(Pl.'s Br. 8-17.) Indeed, it was not until Plaintiff's sur-reply that she attempted to demonstrate a connection between the actions of Bryant and those of Gleason and Hulse so as to warrant the operation of the continuing violation doctrine.

That said, the facts alleged by Plaintiff to establish her continuing violation theory are as follows: Plaintiff contends that, during the limitations period, she was subjected to intense supervision and treated unfairly by her supervisors, Loren Gleason and Lori Hulse. Plaintiff claims that Gleason sent an email to Human Resources on June 23, 2008 in which she indicated a desire to terminate Plaintiff based on Plaintiff's recent absence and Gleason's belief that Plaintiff was causing "other good employees to look for jobs." Plaintiff argues that both reasons forGleason's desire to terminate her were unfounded. Plaintiff further contends that, on June 23, 2008, after Hulse became Plaintiff's supervisor, she was issued a "Coaching Record" regarding an argument withher white co-worker, Shannon Maratea. Plaintiff asserts that Hulse did not discipline Maratea for the incident. Finally, Plaintiff asserts that Hulse falsely accused her of being argumentative with a patient and then wrongfully terminated her on September 8, 2008. (Pl.'s Sur-Reply Br. 2-5.) Assuming at least one of these alleged acts was part of a pattern of discrimination, Plaintiff has satisfied her burden of showing an act within the limitations period.*fn11

The remaining issue is whether Plaintiff has demonstrated an "ongoing practice," that is "more than the occurrence of isolated or sporadic acts of intentional discrimination." West, 45 F.3d at 755. In making its determination, a court must closely scrutinize the claims that occurred within and outside of the limitations period to assess if they are properly related. Rush, 113 F.3d at 484-85. If an act outside the statutory period bears no relation to the actions that were timely raised, then the doctrine does not apply and the employee cannot recover for the earlier acts. See Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 118 (2002). In undertaking this analysis, factors to consider include, but are not limited to: (1) subject matter, or whether the acts constitute the same type of discrimination, tending to connect them in a continuing violation; and (2) frequency, or whether the acts are recurring or more in the nature of isolated incidents.*fn12 Id. at 755 n.9. Acts that are taken by two different supervisors, acting independently, over different time periods generally demonstrate isolated events rather than a persistent, ongoing pattern of discrimination. Ferguson v. Merck & Co., Inc., 2008 WL 205224, at *18 (E.D. Pa. Jan. 23, 2008).

Here, Plaintiff urges that the following conduct by Bryant, which occurred outside the limitations period, isnonetheless actionable as part of an ongoing pattern of targeting Plaintiff for disparate disciplinary treatment compared to her white co-workers.Plaintiff first contends that Bryant reprimanded her and/or issued written warnings for eating food at the front desk and for coming in late and/or calling out sick while she was recovering from colon cancer, but did not reprimand or write up many of the white employees for engaging in the same conduct or for violating other policies. In addition,Plaintiff alleges that Bryant targeted her by placing post-it notes on her computer stating "see me" for everyone to see, and asking other workers to monitor her arrival time for work. Plaintiff further claims that Bryant was informed that Plaintiff's white co-worker, Shannon Maratea, accessed Plaintiff's medical records without authorization, but did not report the incident to Human Resources or perform an investigation. Lastly, Plaintiff alleges that, after her colon cancer surgery, she was treated differently by Bryant. For example, Bryant made a comment about Plaintiff being slow and indicated to Plaintiff that she should think about looking into the University for another job.*fn13 (Pl.'s Br. 11-17.) Plaintiff contends that the continuing violation doctrine applies to these claims because there were "ongoing instances of discrimination" after Bryant left the Department of Surgery.

We disagree and conclude that the continuing violation theory does not apply. Although Plaintiff attempts to connect the actions of each of her supervisors to establish one unlawful employment practice, we do not find Bryant's actions sufficiently related to those of Gleason and Hulse to constitute a continuing pattern.

In reaching this conclusion, we first note that the alleged discriminatory acts asserted both within and outside of the applicable statutory period aresomewhat vague, and primarily amount to various complaints about how Plaintiff was treated by her three supervisors. To the extent it is discernible, it appears that Bryant's alleged conduct relates more to a hostile work environment claim, whereas the alleged conduct of Hulse falls under the auspices of a wrongful termination claim. Further, Gleason's alleged conduct-her composition and submission of an email to Human Resources-does not appear to fit into any specific claim. Plaintiff merely points to this conduct as evidence of pretext to support her disparate treatment claims. Therefore, while the conduct ...

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