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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 primarily relied upon by Plaintiff broadly involves disciplinary actions against her, the acts of Plaintiff's three supervisors are not sufficiently similar to constitute a persistent, ongoing pattern.

Neither do the acts satisfy the frequency factor articulated in West. Regarding frequency, the Third Circuit has not "set a specific standard for determining how close together the acts must occur to amount to a continuing violation." Cowell v. Palmer Tp., 263 F.3d 286, 295 (3d Cir. 2001). Nevertheless, courts should consider the time gap between incidents and the number of incidents that have occurred in reaching their conclusion. See, e.g., West, 45 F.3d at 744 (finding the alleged harassment to be frequent in that it occurred consistently over a four-year period and occurred with increased frequency during the last year); Konstantopoulos v. Westvaco Corp., 112 F.3d 710, 716 (3d Cir. 1997) (concluding that several factors, including a seven-month time gap between events, suggested that plaintiff was not subjected to a hostile work environment).

Here, Plaintiff provides no specific dates for Bryant's alleged discriminatory actions. She merely contends that "there were many instances of disparate treatment." (Pl.'s Br. 11.) Regarding reprimands for eating at the front desk, Plaintiff vaguely claims that Bryant disciplined her "often."*fn14

(Oliver Dep. 236:23-237:4, Pl.'s Br. Ex. A.) With respect to lateness, Plaintiff testified that Bryant would "stay on [her] every single day . . . [that she had] to get [to work] on time." (Id. at 262:8-11.) As to absenteeism, the only concrete evidence of discipline by Bryant are the written warnings issued on July 24, 2007, September 12, 2007 and December 21, 2007. (Defs.' Statement of Undisputed Facts ¶¶ 25, 31, 36.) Plaintiff also fails to provide evidence of the dates she received post-it notes, and merely indicates that she received them "every time" she was late. (Oliver Dep. 140:11-141:18.) Moreover, while Plaintiff does not give specific dates regarding Bryant's failure to report the alleged unauthorized access of her medical records and Bryant's alleged comments about Plaintiff being slow, her deposition testimony implies that these acts occurred around the time of her colon cancer surgery, which was in the winter of 2007. (See id. at 71:18-21, 262:6-21.)

Given Plaintiff's vague allegations, we cannot determine the exact time gap between Bryant's actions and the actions of Gleason and Hulse. Regardless, we note that, while certain incidents involving Bryant appear to have been repeated, the acts of Gleason and Hulse were three isolated events that involved different types of action or discipline. Indeed, there was no overlap in the actions of Bryant, Gleason and Hulse as each supervised Plaintiff over discrete periods of time. Nor has Plaintiff provided evidence to show that Bryant had any role in the acts taken by Gleason and Hulse. Thus, Plaintiff has not demonstrated an ongoing practice of discrimination. Accordingly, the continuing violation doctrine does not apply, and Plaintiff's claims against Bryant are time-barred.

B. Race Discrimination Claim - Disparate Treatment

Title VII provides that it is "an unlawful employment practice for an employer . . . to discriminate against any individual with respect to compensation, terms, conditions or privileges of employment because of such individual's race, color, religion, sex or national origin[.]" 42 U.S.C. § 2000e-2(a)(1). The PHRA also prohibits discrimination based upon "race, color, religious creed, ancestry, age, sex, national origin or non-job related handicap or disability[.]" 43 P.S. § 955(a). Under each of these statutes, claims based upon circumstantial evidence of discrimination, such as those presented by Plaintiff, are governed by the familiar burden-shifting framework set forth by the United States Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See Jones v. Sch. Dist. of Phila., 198 F.3d 403, 410 (3d Cir. 1999) (stating that Title VII and PHRA claims are analyzed under McDonnell Douglas).

Under the McDonnell Douglas framework, the plaintiff bears the initial burden of establishing a prima facie case of discrimination. Sherrod v. Phila. Gas Works, 57 Fed. Appx 68, 73 (3d Cir. 2003). If plaintiff successfully establishes a prima facie case, the burden of production shifts to the defendant to "articulate some legitimate, nondiscriminatory reason" for the unfavorable treatment. McDonnell Douglas, 411 U.S. at 802. Once the defendant comes forward with such a reason, plaintiff must demonstrate by a preponderance of evidence that the articulated reason was merely a pretext for intentional discrimination. Id. at 804.

1. Prima Facie Case of Discrimination

To make out a prima facie case of race discrimination, Plaintiff must demonstrate that she:

(1) is a member of a protected class; (2) was qualified for her position; (3) suffered an adverse employment action; and (4) suffered the adverse action under circumstances that give rise to an inference of discrimination. Brown v. Boeing Co., 468 F. Supp. 2d 729, 735 (E.D. Pa. 2007). Defendants assert that Plaintiff cannot establish the fourth element of her prima facie case.*fn15

The fourth element focuses on whether the employer treated some people less favorably than others because of their race, color, religion, sex or national origin. Pivirotto v. Innovative Sys., Inc., 191 F.3d 344, 352 (3d Cir. 1999). Plaintiff contends that she can satisfy this prong in that she was "similarly situated" to white co-workers who received more favorable treatment. (Pl.'s Br. 20-21.) Under this approach, a plaintiff must be similarly situated in all relevant respects to the individuals with whom she seeks to compare herself. Dill v. Runyon, 1997 WL 164275, at *4 (E.D. Pa. Apr. 3, 1997). Generally, this requires "a showing that the two employees dealt with the same supervisor, were subject to the same standards, and had engaged in the same conduct without such differentiating or mitigating circumstances as would distinguish their conduct or the employer's treatment of them." Opsatnik v. Norfolk Southern Corp., 335 Fed. Appx. 220, 222-23 (3d Cir. 2009).

Plaintiff points to threewhite employees as relevant comparators.*fn16 Plaintiff arguesthat, unlike her, these employees were not disciplined or terminated for interactions that upset or disparaged patients. We address whether each employee is similarly situated to Plaintiff in turn.

Plaintiff first asserts that Christine Saraceno is a relevant comparator who received more favorable treatment. Specifically, Plaintiff points to evidence that Saraceno was rude to patients, but was not disciplined for her actions. On one occasion, a patient with whom Saraceno regularly interacted was visibly upset about her interactions with Saraceno and met with Hulse regarding the conduct. Plaintiff contends that Hulse did not discipline or terminate Saraceno, and later stated to Plaintiff that the patient was "crazy." (Pl.'s Br. 20-21.)

However, Plaintiff is unable to dispute that there are differentiating circumstances that would distinguish Hulse's treatment of Saraceno. Specifically, Plaintiff cannot dispute that Hulse did not witness any of Saraceno's conduct toward the patient, and that Plaintiff was not present during any conversations between Hulse and the patient or Saraceno thereafter. (Oliver Dep. 252-53.) Further, Plaintiff has not pointed to any evidence that Saraceno was at a similar disciplinary level as Plaintiff. Thus, we conclude that Plaintiff has not presented sufficient evidence for a jury to conclude that Saraceno was similarly situated.

Plaintiff next points to Angela Haswell. Plaintiff argues that two days after her termination, Mr. Grecu-the same patient with whom Plaintiff had interacted-engaged in an argument with Haswell, but Haswell was not disciplined or terminated after this interaction. Plaintiff contends that Hulse handled the situation completely different than how she handled the situation with Plaintiff. Specifically, when Hulse discussed the incident with Haswell, Hulse stated that the patient was "crazy." (Pl.'s Br. 20.)

However, Plaintiff has not presented any facts to contradict the undisputed evidence that Haswell did not engage in misconduct during her interaction with Mr. Grecu. Indeed, the record before us shows that Haswell did not yell at the patient and sought help from a supervisor when the patient became difficult. (Defs.' Statement of Undisputed Facts ¶¶ 104-05.) Therefore, Plaintiff has not sufficiently shown that Haswell is a relevant comparator.

Lastly, Plaintiff cites Deborah Adcock as a similarly situated employee who received more favorable treatment. Plaintiff contends that Adcock talked disparagingly of patients outside of their presence, but received no discipline for her behavior. (Pl.'s Br. 21.) Because Plaintiff has not pointed to evidence that Hulse was aware of Adcock's conduct or that Adcock engaged in an inappropriate interaction with a patient, we find that Plaintiff has failed to show that Adcock is a relevant comparator.

In sum, we conclude that Plaintiff has failed to present a prima facie case to support an inference of discrimination or otherwise establish that she was treated less favorably than other "similarly situated" co-workers. Nevertheless, even if Plaintiff were able to meet this burden, a complete McDonnell Douglas analysis demonstrates that she has failed to adduce sufficient evidence to suggest a finding of pretext. This issue is examined below.

2.Legitimate, Nondiscriminatory Reason

If Plaintiff had established a prima facie case of discrimination, a proposition we reject, the burden of production shifts to Defendants to articulate a legitimate, nondiscriminatory reason for their decision. At this stage, Defendants' burden is "relatively light" and they need only "introduce[e] evidence which, if taken as true, would permit the conclusion that there was a nondiscriminatory reason for the unfavorable employment decision." Fuentes v. Perskie, 32 F.3d 759, 763 (3d Cir. 1994). Defendants assert that Plaintiff was terminated for: (1) violation of the standards of professional conduct; and (2) offensive and inappropriate behavior to a patient. Specifically, Hulse testified that she witnessed an interaction between Plaintiff and a patient, and perceived that Plaintiff acted in a demeaning way towards the patient and continued to do so after Hulse directed her to stop. Hulse further testified that the patient was visibly upset, shaking and had been crying. (Hulse Dep. 19:16-21:17, 65:19-25, Defs.' Statement of Undisputed Facts Ex. E.) Defendants argue that these infractions, coupled with the fact that Plaintiff was at a "Second Written Warning" level, and in light of the severity of the incident with the patient, warranted Plaintiff's termination. We find that Defendants' non-discriminatory reasons are clearly sufficient to satisfy their burden.

3. Pretext

To survive summary judgment, Plaintiff must point to evidence from which a fact-finder could reasonably conclude that Defendants' proffered reasons are pretextual. Fuentes, 32 F.3d at 763. This can be accomplished by adducing evidence from which a fact-finder could: (1) disbelieve the employer's articulated reasons; or (2) believe that discrimination was more likely than not a motivating or determinative cause of the employer's action. Id. at 764.

Under the first approach of the Fuentes analysis, a plaintiff must "present evidence contradicting the core facts put forth by the employer as the legitimate reasons for its decision." Kautz v. Met-Pro Corp., 412 F.3d 463, 467 (3d Cir. 2005). In other words, the plaintiff must "demonstrate such weaknesses, implausibilities, inconsistencies, incoherencies or contradictions in the employer's proffered legitimate reasons for its action that a reasonable factfinder could rationally find them unworthy of credence." Fuentes, 32 F.3d at 765. In evaluating the employer's reasons, our focus is upon whether the reasons honestly motivated the decision at issue, not whether the reasons are factually accurate. See Stahlnecker v. Sears, 2009 WL 661927, at *6 (E.D. Pa. Mar. 11, 2009). Further, in reviewing whether a plaintiff has established pretext, a court must consider "the totality of the evidence," and not "the strength of each individual argument." Bray v. Marriott Hotels, 110 F.3d 986, 991 (3d Cir. 1997).

The second prong of the Fuentestest examines whether a plaintiff has evidence that suggests unlawfuldiscrimination was more likely than not a motivating or determining factor in the employer's decision. The plaintiff must do more than show that the employer's decision was wrong or mistaken, but must demonstrate that the employer acted with discriminatory animus. Abramson v. William Paterson Coll. of N.J., 260 F.3d 265, 283 (3d Cir. 2001). The plaintiff can satisfy her burden by pointing to evidence "that the employer has previously discriminated against her, that the employer has discriminated against other persons within the plaintiff's protected class or within another protected class, or that the employer has treated more favorably similarly situated persons not within the protected class." Simpson v. Kay Jewelers, 142 F.3d 639, 644-45 (3d Cir. 1998). Where aplaintiff presents evidence of similarly situated non-class members to sustain her burden at the pretext stage, she must show with some specificity that the comparators were more favorably treated. Id. at 646. In the context of employee discipline, "[a] violation of company policy can constitute a pretext for unlawful discrimination if others similarly situated also violated the policy with no adverse consequence." Goosby v. Johnson & Johnson Med., Inc., 228 F.3d 313, 322 (3d Cir. 2000).

In support of a finding of pretext, Plaintiff first contends that Defendants' stated reasons for her firing-namely, violation of the standards of professional conduct and offensive and inappropriate behavior to a patient-are completely inconsistent with Plaintiff's performance reviews, which indicate that Plaintiff had excellent customer service skills and acted in a professional manner. (Pl.'s Br. 22-23, 28.) Considering the totality of the circumstances, including Plaintiff's "Coaching Record," which she received after a doctor reported that she had addressed a colleague in a rude tone and derogatory manner, we find that a reasonable juror would be unable to conclude that Plaintiff's positive performance reviews reflect a contradiction that suggests that Defendants' reasons for termination were pretextual. Indeed, the fact that Plaintiff's supervisors had lauded her customer service skills in the past does not, in itself, preclude a finding that Plaintiff's conduct towards a particular patient on September 8, 2008 was severe enough to warrant termination. See Kautz v. Met-Pro Corp., 412 F.3d 463, 474 (3d Cir. 2005) ("The attempt to use past positive performance reviews to show that more recent criticism was pretextual fails as a matter of law.").

Plaintiff further claims that the September 8, 2008 incident was an isolated event that did not warrant termination, and thus Defendants' reliance on the incident to support their decision was pretextual. In support of this argument, Plaintiff points to the deposition testimony of her co-worker, Quiana Mack, who testified that Plaintiff had a kind and professional demeanor with patients.*fn17

(Pl.'s Br. 23-24.)

A co-worker's opinion is not alone sufficient to establish that the reasons for an employer's adverse action were pretextual. See Martin v. Health Care & Ret. Corp., 67 Fed. Appx. 109, 113-14 (3d Cir. 2003) (citing Conkwright v. Westinghouse Elec. Corp., 933 F.2d 231, 235 (4th Cir. 1991) (finding that co-workers' opinions that the allegations against plaintiff were not consistent with her typical demeanor were insufficient to show that the decision-makers were lying in their belief that plaintiff mishandled certain incidents).Given that Plaintiff has not produced evidence that Mack witnessed the September 8, 2008 incident, (See Oliver Dep. 134:11-15), and in light of the fact that CPUP's corrective discipline policy expressly permits termination for incidents of misconduct that harm patients, (Defs.' Statement of Undisputed Facts ¶ 16), a reasonable juror would be unable to conclude that Mack's testimony supports a finding of pretext. Further, Plaintiff's subjective belief that termination was not warranted under the circumstances is insufficient to show pretext because the employer's belief governs. See Martin, 67 Fed. Appx. at 113 ("An employer's decision that an incident is serious enough to warrant termination rather than a less severe punishment does not show that the reason for termination is pretextual."); see also Gibson v. Sharon Regional Hosp. Sys., 2011 WL 1044657, at *16 (W.D. Pa. Mar. 18, 2011).

We also reject Plaintiff's contention that the June 23, 2008 email from Loren Gleason to Amanda Buckley in Human Resources, and in whichLori Hulse was carbon copied, provides a reasonable inference that Defendants' reasons are pretextual. Plaintiff contends that the email, which noted that Plaintiff called out sick and stated that Gleason wanted to work towards terminating Plaintiff "for causing other good employees in the office to look for jobs," is evidence that Plaintiff's termination was pre-arranged, or that Plaintiff was targeted for termination prior to the September 8, 2008 incident. Plaintiff further argues that the reasons for termination indicated by Gleason are without basis. (Pl.'s Br. 25-26; Buckley Dep. Ex. 2.)

Defendants respond that the email was written months before Plaintiff's termination, which was for a reason unrelated to the absence referenced in the email, and that Gleason had no role in the termination decision as she was no longer in the Department of Surgery. Further, Defendants contend that Plaintiff has pointed to no evidence to suggest that Gleason had any race-based motivation for sending the email. (Defs.' Reply Br. 8.)

"Stray remarks by non-decisionmakers or by decisionmakers unrelated to the decision process are rarely given great weight, particularly if they were made temporally remote from the date of decision." Ezold v. Wolf, Block, Schorr and Solis-Cohen, 983 F.2d 509, 545 (3d Cir. 1992). Regardless, even if we were to consider the email relevant, we are unable to conclude that it renders Defendants' stated reasons for terminating Plaintiff so implausible, inconsistent, incoherent or contradictory, such that they should be disbelieved.

Finally, Plaintiff contends that Defendants' reasons for terminating her were pretextual because Hulse handled similar situations with white employees differently than how she handled the incident with Plaintiff. Specifically, Plaintiff claims that similarly situated white employees-Saraceno, Haswell and Adcock- were treated more favorably in that, unlike Plaintiff, they were not disciplined or terminated after engaging in interactions that upset or disparaged patients. (Oliver Dep. 249-53.) As we have already determined in our discussion of Plaintiff's prima facie case, however, none of these individuals are similarly situated to Plaintiff. Thus, Defendants' treatment of these individuals is irrelevant and insufficient to establish pretext.

Considering the totality of the evidence and Plaintiff's argument as a whole, we conclude that Plaintiff has not presented sufficient evidence from which a fact-finder could disbelieve Defendants' articulated reasons or believe that discrimination was more likely than not a motivating or determinative cause of Defendants' action.

C. Disability Discrimination Claim - Disparate Treatment

The ADA prohibits employers from discriminating against an employee on the basis of disability. 42 U.S.C. § 12112. In cases where a plaintiff has not offered direct evidence of discrimination, the McDonnell Douglas framework applies.*fn18 Dawley v. Erie Indem. Co.,100 Fed. Appx. 877, 880 (3d Cir. 2004).

1. Prima Facie Case of Discrimination

To establish a primafaciecase of disability discrimination under the ADA, a plaintiff must demonstrate: (1) that she is a disabled person within the meaning of the ADA; (2) that she is otherwise qualified to perform the essential functions of the job, with or without reasonable accommodations by the employer; and (3) that she has suffered an otherwise adverse employment decision as a result of discrimination. Gaul v. Lucent Techs., 134 F.3d 576, 580 (3d Cir. 1998). Defendants do not contest that Plaintiff can satisfy the first two elements, but argue that Plaintiff is unable to demonstrate that she suffered any adverse employment actions as a result of disability discrimination.

Plaintiff counters that there are genuine issues of fact as to whether Defendants terminated her because of her disability. She asserts that, after her diagnosis, her supervisors "began to treat [her] differently." Plaintiff points to evidence that Bryant, on one occasion, commented that she was slow and indicated that Plaintiff should think about looking into the University for another job.*fn19

Plaintiff further argues that Gleason's June 23, 2008 email to Human Resources, discussed in greater detail in Part III.A., supra, is evidence of disability-based discrimination. (Pl.'s Br. 27-28; Oliver Dep. 224:24-225:21, 262:15-22.)

Nevertheless, Plaintiff does not explain, nor is it clear from the briefings, how this evidence relates to Hulse's decision to terminate Plaintiff. Indeed, Plaintiff has brought forth no evidence to suggest that Hulse's action was motivated by Plaintiff's disability. Thus, because Plaintiff has failed to offer evidence supporting an inference of a causal connection between her disability and the adverse employment action, we conclude that she has not satisfied her prima facie burden.

2. Legitimate, Nondiscriminatory Reason

Even if Plaintiff had established a prima facie case, Defendants' proferred reasons for terminating Plaintiff satisfy their McDonnell Douglas burden. Thus, we will proceed with Plaintiff's evidence of pretext.

3. Pretext

Plaintiff raises the same grounds of pretext here as she did in her race discrimination claim. (Pl.'s Br. 28.) For the same reasons discussed in Part III.B.3, supra, we find that Plaintiff has not presented sufficient evidence to overcome summary judgment.

D. Age Discrimination Claim

The ADEA states that it "shall be unlawful for employer to . . . discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's age." 29 U.S.C. § 623(a)(1). To establish a prima facie case of age discrimination, a plaintiff must show that she: (1) is over 40; (2) is qualified for the position in question; (3) suffered an adverse employment decision; and (4) was replaced by a sufficiently younger person to create an inference of age discrimination. Sempier v. Johnson & Higgins, 45 F.3d 724, 728 (3d Cir. 1995).

Defendants assert, among other things, that Plaintiff has failed to meet her prima facie burden and, as such, her age discrimination claim fails. (Defs.' Br. 6-8.) Plaintiff concedes that summary judgment is appropriate as to this claim. (Pl.'s Br. 1.) Thus, Defendant's motion with respect to Plaintiff's ADEA claim will be granted.

E. Hostile Work Environment Claims

In her response to Defendants' motion for summary judgment, Plaintiff also asserts hostile work environment claims in violation of Title VII and the ADA. We first address Defendants' contention that the claims are barred for failure to exhaust administrative remedies and failure to plead the allegations in the complaint. (Reply Br. 2, 8.)

1. Whether Plaintiff Appropriately Raised Hostile Work Environment Claims

A. Exhaustion of Administrative Remedies

Before a plaintiff may file a discrimination claim in federal court, she must file a timely complaint with the PHRC or EEOC, and then wait as the commission attempts to mediate the dispute without litigation. Waiters v. Parsons, 729 F.2d 233, 237 (3d Cir. 1984). The relevant inquiry in determining whether claims have been administratively exhausted is "whether the acts alleged in the subsequent [discrimination] suit are fairly within the scope of the prior [PHRC or] EEOC complaint, or the investigation arising therefrom." Antol v. Perry, 82 F.3d 1291, 1295 (3d Cir. 1996) (quoting Waiters, 729 F.2d at 237). Put another way, "a district court may assume jurisdiction over additional charges if they are reasonably within the scope of the complainant's original charges and if a reasonable investigation by the [PHRC or] EEOC would have encompassed the new claims." Howze v. Jones & Laughlin Steel Corp., 750 F.2d 1208, 1212 (3d Cir. 1984); Webb v. City of Phila., 2007 WL 210405, at *2 (E.D. Pa. Jan. 23, 2007). The scope of the complaint should be liberally construed in that charges are "most often drafted by one who is not well versed in the art of legal description." Hicks v. ABT Assocs., Inc., 572 F.2d 960, 965 (3d Cir. 1978).

In her PHRC complaint, Plaintiff alleges that "every action" she took resulted in reprimand while white employees were treated more favorably. (Defs.' Statement of Undisputed Facts Ex. KK, PHRC Compl, at ¶ 14.) Viewing this allegation in a light most favorable to the Plaintiff, we find that these facts should have provided notice to the PHRC that the race discrimination alleged was ongoing. Thus, Plaintiff has sufficiently exhausted her Title VII hostile work environment claim. See, e.g., Weems v. Kehe Food Distribs., Inc., 804 F. Supp. 2d 339, 342 (E.D. Pa. 2011) (finding that plaintiff exhausted his administrative remedies as to a claim of hostile work environment where he alleged in his charge of discrimination that he was discriminated against throughout the period of his employment).

However, even construing her PHRC complaint liberally, we cannot conclude that anADA hostile work environment claim was within the scope of Plaintiff's complaint. In her charge, Plaintiff asserts that one of her co-workers accessed information about her cancer diagnosis in violation of the Health Insurance Portability and Accountability Act ("HIPPA") and then informed the entire department.She further claims that her newsupervisor, Lori Hulse, terminated her after learning about her cancer diagnosis and because she may have been trying to protect Defendants from a lawsuit regarding the alleged HIPPA violation. (Defs.' Statement of Undisputed Facts Ex. KK, PHRC Compl, at ¶¶ 27, 33.) Such allegations are insufficient to provide notice to the PHRC that its investigation should encompass a hostile work environment claim. Thus, this claim is barred for failure to exhaust administrative remedies.

B. Sufficiency of the Pleadings

Defendants next argue that Plaintiff's hostile work environment claims should be dismissed because she failed to plead these counts in her federal complaint. (Defs.' Reply Br. 2, 8.) Plaintiff responds that her complaint included specific allegations of hostile work environment/harassment to put Defendants on notice of her claims. (Pl.'s Sur-Reply Br. 7-8.)

While a plaintiff need not explicitly use the phrase "hostile work environment" in her complaint, the allegations must nonetheless sufficiently state such a claim. Glasgow v. Veolia Water North Am. Operating Servs., LLC, 2010 WL 3780966, at *6 (Sept. 21, 2010 D. Virgin Islands). Viewing the complaint in a light most favorable to Plaintiff, we find that Plaintiff's specific allegations-harassment and/or discrimination by Bryant, Hulse and Maratea and the basis for that harassment and/or discrimination-could allege a pattern of discrimination and harassment based on race. (See Compl. ¶ 45.) Thus, her federal complaint sufficiently states a Title VII hostile work environment claim. Nevertheless, because Plaintiff's allegations do not demonstrate a practice of discrimination or harassment based on disability, we conclude that Plaintiff's ADA hostile work environment claim should be dismissed.

2. Whether Plaintiff's Hostile Work Environment Claims Have Merit

A. Race-Based Hostile Work Environment Claim

Racial harassment that creates an abusive and hostile work environment is actionable under Title VII. Meritor Sav. Bank v. Vinson, 477 U.S. 57, 66 (1986). To establish a racially hostile work environment, a plaintiff must prove that: (1) she suffered intentional discrimination because of her race; (2) the discrimination was severe orpervasive; (3) the discrimination detrimentally affected the employee; (4) it would have detrimentally affected a reasonable person in like circumstances; and (5) a basis for employer liability is present. Griffin v. Harrisburg Prop. Servs., Inc., 421 Fed. Appx. 204, 207 (3d Cir. 2011). No single factor is dispositive in a hostile work environment claim. Rather, Title VII is violated when discrimination is "sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment." Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993).

In support of the first element of her hostile work environment claim, Plaintiff argues that she was intentionally discriminated on the basis of race in that: (1) Iris Bryant treated white employees more favorably than African American employees and/or there was racial polarization in the office; (2) she suffered many instances of racially disparate treatment during her employment, including receiving verbal and written reprimands for eating at the front desk and occasionally coming in late and/or calling out sick, as well as receiving post-it notes and being monitored by her co-workers for lateness; (3) her co-worker, Shannon Maratea, accessed her medical records and history without authorization; (4) Bryant failed to investigate or report Maratea's conduct to Human Resources; and (5) Human Resources failed to investigate the conduct.

As discussed previously, all of Plaintiff's allegations against Bryant are time-barred. Thus, we may only consider the allegations regarding Shannon Maratea and Human Resources' efforts to investigate her conduct.*fn20 Because Plaintiff has not presented any evidence from which a juror could infer that Maratea or Buckley, the Human Resources Director, acted with racial animus, and because the mere fact that those individuals are white is insufficient to demonstrate such intent, her Title VII hostile work environment claim fails. See Tucker v. Merck & Co., 131 Fed. Appx. 852, 859 (3d Cir. 2005) (concluding that plaintiff's hostile work environment claim failed as a matter of law and noting that he did not "cite a single incident involving the utterance of a racial epithet, the use of a racist symbol, or any direct comment concerning race," he did not show that the incidents alleged were linked with conduct regarding race, and he did not produce any evidence that any actions were racially motivated).

B. Disability-Based Hostile Work Environment Claim

A hostile work environment claim based on disability requires a showing that: (1) the plaintiff is a qualified individual with a disability under the ADA; (2) she was subject to unwelcome harassment; (3) the harassment was based on her disability; (4) the harassment was sufficiently severe or pervasive to alter the conditions of her employment and to create an abusive working environment; and (5) respondeat superior liability. Walton v. Mental Health Ass'n of Se. Pa., 168 F.3d 661, 667 (3d Cir. 1999).

Here, Plaintiff points solely to harassment allegedly perpetrated by Bryant after Plaintiff returned from her colon cancer surgery. (Pl.'s Br. 29-30.) Because the allegations against Bryant are time-barred, this claim also fails.


For the foregoing reasons, Defendants' Motion for Summary Judgment will be granted, and Plaintiff's claims shall be dismissed. An appropriate Order follows.

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