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Popko v. Penn State Milton S. Hershey Medical Center

United States District Court, M.D. Pennsylvania

March 22, 2017

DAVID J. POPKO, Plaintiff
v.
PENN STATE MILTON S. HERSHEY MEDICAL CENTER, et al., Defendants

          MEMORANDUM

          Yvette Kane, District Judge.

         Before the Court is Defendants Penn State Milton S. Hershey Medical Center, Greg Wantland, and Mariann Kreiser's motion for summary judgment. (Doc. No. 66.) For the reasons that follow, the Court will grant the motion.

         I. BACKGROUND

         A. Procedural Background

         On July 5, 2013, David J. Popko (“Popko'), initiated the above-captioned action by filing a complaint against Defendants the Penn State Milton S. Hershey Medical Center (the “Medical Center”), Greg Wantland, and Mariann Kreiser. (Doc. No. 1.) In his initial complaint, Popko asserted claims under the Americans with Disabilities Act, 42 U.S.C. § 12101, et seq. (“ADA”), the Age Discrimination in Employment Act, 29 U.S.C.A. § 621, et seq. (“ADEA”), and the Pennsylvania Human Relations Act, 43 P.S. § 951, et seq. (“PHRA”), arising out of his December 15, 2011, termination, and an allegedly hostile working environment. (Id.) He also alleged that Defendants violated the Family and Medical Leave Act, 29 U.S.C.A. § 2601, et seq. (“FMLA”), by interfering with his right to take leave and by retaliating against him for seeking to take leave. (Id.) He further alleged that Defendants breached the contract contained within the Medical Center human resources manual by failing to inform him of his appeal rights at the time of his termination. (Id.)

         After Defendants filed a motion to dismiss Popko's complaint, the Court dismissed all of Popko's claims for failure to state a claim upon which relief can be granted, with the exception of his ADEA age discrimination claim, and his FMLA retaliation claim. (Doc. Nos. 22, 23.) At the time, the Court granted Popko leave to amend his complaint, except as to the PHRA claims, which it dismissed with prejudice. (Id.) Popko subsequently filed an amended complaint, re-pleading most of the claims the Court previously dismissed without prejudice, and adding a gender discrimination claim under Title VII. (Doc. No. 27.) Defendants filed a motion to dismiss the amended complaint, and the Court ultimately granted the motion on August 18, 2015, leaving only Popko's claim of termination in violation of the ADEA against the Medical Center, and his claim of FMLA retaliation against all Defendants. (Doc. Nos. 52, 53.)[1]

         On August 15, 2016, Defendants filed their motion for summary judgment (Doc. No. 66), with brief in support (Doc. No. 67), and statement of undisputed material facts (Doc. No. 68). Popko failed to file a brief in opposition to Defendants' motion for summary judgment within twenty-one days of receipt of service of the brief in support, as required by Local Rule 7.6. On January 26, 2017, the Court issued an Order directing Popko to file his brief in opposition to Defendants' motion for summary judgment by February 28, 2017, and cautioned Popko that failure to do so would result in the Court deeming Defendants' motion unopposed pursuant to Local Rule 7.6. (Doc. No. 69.) To date, Popko has not filed a brief in opposition to Defendants' motion in compliance with the Court's order. Accordingly, the Court deems Defendants' motion for summary judgment unopposed.

         B. Factual Background

         Plaintiff Popko began his employment at the Medical Center on January 8, 1973, at the age of twenty-three.[2] (Doc. No. 68 ¶¶ 8-9.) Plaintiff held the position of Manager of Supply and Distribution beginning February 1, 1992 until December 15, 2011, when he resigned in lieu of termination. (Id. ¶ 10.) At all relevant times, Greg Wantland was Director of Materials Management at the Medical Center, and Mariann Kreiser was a Human Resources Liaison at the Medical Center. (Id. ¶ 7.)

         In December 2010, an employee of the Medical Center, Craig Saaler (“Saaler”), ended his employment with the Medical Center and applied for unemployment compensation benefits. (Id. ¶ 11.) The Unemployment Compensation Service Center determined that Saaler was ineligible for benefits. (Id.) Thereafter, Saaler filed a Petition for Appeal from the initial determination of ineligibility. (Id. ¶ 12.) In his Petition for Appeal, Saaler alleged that he was “sexual[ly] harassed” by his manager and “couldn't put up with it any longer.” (Id.) Popko was Saaler's manager. (Id. ¶ 13.) The Medical Center received Saaler's Petition for Appeal, and on February 1, 2011, Defendant Kreiser sent the Petition to Popko by email, requesting Popko's review of the Petition. (Id. ¶ 14.)

In replying to Defendant Kreiser via email on February 1, 2011, Popko provided: Nothing should surprise me anymore, but Craig [Saaler] is a desperate man. He was a good candidate for disability retirement. The self-destructive impulse to sabotage himself through willful misconduct, knowing he'd be detected, is not comprehensible to me. Now this.

(Id. ¶ 15; Doc. No. 68-2, Exhibit 5 to Popko Dep. at 1.) Popko did not disclose in his email to Kreiser that he had engaged in inappropriate conduct or physically touched Saaler in the workplace. (Id.)

         On February 7, 2011, Defendants Wantland and Kreiser and Jim Rohacek (Administrator of Support Services at the Medical Center) met with Popko regarding Saaler's allegation and the Medical Center's response. (Doc. No. 68 ¶ 16.) On February 11, 2011, Popko signed and dated a Disciplinary Letter to him from Wantland. (Id. ¶ 17; Doc. No. 68-2, Exhibit 6 to Popko Dep. at 2.) The letter provided, in part:

This letter documents our meeting on February 7, 2011 at which time we discussed your violation of the Personal Behavior and Communication Standards Policy, HR-38 and the Sexual Harassment Policy, HR 11, specifically your alleged inappropriate behavior with a staff employee. . . . Specifically, we discussed that on February 2, 2011, it was brought to the attention of Mariann Shearer, HR Liaison, that there was an allegation made by an employee, Craig Saaler, documented in a Petition for Appeal regarding his Unemployment Compensation. This allegation claimed that he was sexually harassed by his Manager, Dave Popko. Upon investigation, it was reported that you had kissed Mr. Saaler on the forehead. When you were asked during the investigation whether or not the allegation was true, you responded that you could not recall engaging in any inappropriate behavior with Mr. Saaler. You did however admit during our meeting that you had kissed other male employees on the forehead. This admission, coupled with our investigation leads us to the belief that the allegation made by Mr. Saaler is accurate. As discussed at this meeting, any conduct that has the purpose or effect of interfering unreasonably with an individual's work or creates an offensive, hostile, or intimidating work environment is prohibited. . . .You have attended multiple management trainings in the past and yet have used extremely poor judgment in your interactions with members of your staff. In order to reinforce your understanding of sexual harassment and the types of behaviors that may give rise to sexual harassment allegations, I am requiring you to attend the Sexual Harassment Prevention Training session offered for the New Employee Orientation class . . . .It is my expectation that you will immediately cease and desist exhibiting any inappropriate behaviors that may be considered offensive to employees and/or co-workers in the workplace. Please be advised that unprofessional behavior is unacceptable and will not be tolerated. Any violation of the Personal Behavior and Communication Standards Policy, HR-38 and/or Sexual Harassment Policy, HR 11, in the future will result in immediate termination.

(Doc. No. 68-2, Exhibit 6 to Popko Dep.)

         Popko attended a February 14, 2011 training session on sexual harassment prevention, as required by the February 11, 2011 Disciplinary Letter. (Doc. No. 68 ¶ 18.) Popko testified at his deposition that he recognized that the conduct which led to the February 11, 2011 Disciplinary Letter was sufficiently “serious” that it “could have led to termination.” (Id. ¶ 19.)

         One month after the February 2011 Disciplinary Letter, and less than a month after his sexual harassment prevention training, the Medical Center issued a Final Warning and Notice of Suspension to Popko. (Id. ¶ 20.) The Final Warning is dated March 11, 2011, and was signed and dated by Popko on March 28, 2011. (Id.; Doc. No. 68-2, Exhibit 7 to Popko Dep. at 1-2.)

         The March 2011 Final Warning, provided, in pertinent part:

This letter documents our meeting on March 7, 2011 at which time we discussed your violation of the Personal Behavior and Communication Standards Policy, HR-38 and the Sexual Harassment Policy, HR 11, specifically your alleged inappropriate behavior with a staff employee. . . . Specifically we discussed that on March 4, 2011, it was brought to the attention of Mariann Shearer, HR Liaison, that there was an allegation made by an employee, that you had tapped him on the butt. When you were asked during the investigation whether or not the allegation was true, you identified the employee and confirmed the allegation. As discussed at this meeting, any conduct that has the purpose or effect of interfering unreasonably with an individual's work or creates an offensive, hostile, or intimidating working environment is prohibited. . . . Please note that you were issued a disciplinary letter on February 11, 2011 for violation of the Personal Behavior and Communication Standards Policy, HR-38. You were warned that this behavior is unacceptable and further incidents will result in disciplinary action up to and including discharge. You were also mandated to the Sexual Harassment Prevention Training which you attended on February 14, 2011. . . . Once again you have used extremely poor judgment in your interactions with members of your staff. In addition to this Final Warning, you will be placed on a two (2) week unpaid suspension beginning March 14th thru March 25th of 2011. . . . Please be advised the unprofessional behavior is unacceptable and will not be tolerated. Any violation of the Personal Behavior and Communication Standards Policy, HR-38 and/or Sexual Harassment Policy, HR 11, in the future will result in immediate termination.

(Doc. No. 68-2, Exhibit 7 to Popko Dep. at 1.)

         With regard to the grabbing incident which resulted in the March 2011 Final Warning, Popko testified at his deposition as follows:

Defense Counsel (“Q”): I'm handing you a document that has been marked Popko 6. Are you familiar with it?
Plaintiff (“A”): Yes.
Q: What is it?
A: Greg Wantland to me, disciplinary letter, February 11, 2011.
Q: I'm directing your attention to the next to last paragraph of Popko 6. Mr. Wantland states, it is my expectation that you will immediately cease and desist exhibiting any inappropriate behavior -
A: Yes.
Q: - that may be considered offensive to employees and/or coworkers in the workplace. Did you understand that expectation?
A: Yes. I was so ecstatic that I followed up with Anthony [Risteff].
Q: What do you mean you were so ecstatic?
A: I was ecstatic that I didn't lose my job.
Q: So you recognized the conduct was serious enough -
A: Yes.
Q: - that it could have led to termination, correct?
A: Absolutely. And I . . . grossly underestimated with the impulsive grabbing of the thigh and saying [“]how does it feel to have . . . someone else's life in your hands.[”]
Q: So you are just disciplined for inappropriate conduct, including kissing a male employee on the forehead, and your next step is to reach out and grab a male employee between the thigh?
A: On the thigh.
Q: On the thigh?
A: It was an impulsive gesture. . . .
***
A: There are friends and there are foes and I counted him [Anthony] as a friend and he understood me and I understood him. He taught me a lot of words I never knew the meaning to until he spelled them out to me and they are not for a public dictionary.
Q: Did the policy with respect to sexual harassment and personal behavior and communication standards distinguish between friends and foes?
A: No.
***
Q: And despite being told that unprofessional behavior wouldn't be tolerated, you immediately go off and grab a ...

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