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McIntosh v. White Horse Village, Inc.

United States District Court, E.D. Pennsylvania

April 4, 2017

MARLENE MCINTOSH, Plaintiff,
v.
WHITE HORSE VILLAGE, INC., Defendant.

          MEMORANDUM OPINION

          RUFE, J.

         Before the Court is the motion for partial summary judgment of Defendant White Horse Village, Inc. (“WHV”) (Doc. No. 28), seeking dismissal of three of Plaintiff's four employment discrimination claims, to which Plaintiff has not responded. For the reasons that follow, the motion will be granted.

         I. Factual Background[1]

         Plaintiff has worked for WHV, a Continuing Care Retirement Community, as a licensed practical nurse (“LPN”) since September 2010. Initially, Plaintiff worked for WHV as a “pool employee, ” meaning she only worked when WHV needed a substitute nurse, but she began working full-time as an LPN in late 2010. As a full-time employee, she was scheduled to work 32 hours per week and was eligible for employee benefits. Although full-time LPNs were expected to work on Sundays, Plaintiff requested and received an accommodation so that she could attend religious services on Sundays.[2]

         In May 2014, Plaintiff requested and was approved for leave under the Family and Medical Leave Act (“FMLA”)[3] so that she could undergo surgery on her foot. She was on medical leave until August 6, 2014, when she returned to work as a full-time employee. When she returned, she began working under a new Director of Nursing. The Director allegedly told Plaintiff that WHV was implementing a new policy whereby all nursing staff were required to work every other weekend.[4] Sometime after the new policy was introduced, Plaintiff's status changed from a full-time employee to a pool employee. As a pool employee, Plaintiff was no longer guaranteed 64 hours per two-week pay period.

         Plaintiff alleges that she complained to Human Resources that her religious accommodation was denied and that she, as an African American, was being treated differently from Caucasian employees, who were not all required to work on Sundays. Plaintiff then filed an Equal Employment Opportunity Commission (“EEOC”) complaint, and requested that it be cross-filed with the Pennsylvania Human Rights Commission (“PHRC”). On June 17, 2015, the EEOC issued a right to sue letter. On September 16, 2015, Plaintiff filed suit. After earlier motion practice, the following claims remain: (1) religious discrimination, religious-based retaliation, and failure to accommodate her religion (Count I); (2) race discrimination and retaliation in violation of Title VII of the Civil Rights Act of 1964 (Count II); race discrimination and retaliation in violation of 42 U.S.C. § 1981 (Count III); and (4) violations of the FMLA (Count IV). Defendant has moved for summary judgment.

         II. Standard of Review

         A court will award summary judgment on a claim or part of a claim where there is “no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”[5] A fact is “material” if resolving the dispute over the fact “might affect the outcome of the suit under the governing [substantive] law.”[6] A dispute is “genuine” if “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.”[7] In evaluating a summary judgment motion, a court “must view the facts in the light most favorable to the non-moving party, ” and make every reasonable inference in that party's favor.[8] Nevertheless, the party opposing summary judgment must support each essential element of the opposition with concrete evidence in the record.[9] If, after making all reasonable inferences in favor of the non-moving party, the court determines that there is no genuine dispute as to any material fact, summary judgment is appropriate.[10]

         The non-moving party's failure to respond to a motion for summary judgment is not sufficient to warrant a grant of summary judgment under Federal Rule of Civil Procedure 56. The Court “must determine that the facts specified in or in connection with the motion entitle the moving party to judgment as a matter of law.”[11]

         III. Discussion

         A. Violations of Title VII and § 1981 (Counts II and III)

         In Counts II and III, Plaintiff alleges that Defendant discriminated against her and retaliated against her on the basis of her race, in violation of Title VII and § 1981. Because “the substantive elements of a claim under [§] 1981 are generally identical to the elements of an employment discrimination claim under Title VII, ” the Court addresses Counts II and III together.[12]

         There are two ways to prove discrimination under Title VII and § 1981: (1) pretext-based claims, which are analyzed under the burden-shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), and (2) mixed-motive claims, which are analyzed under the framework set forth in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989).[13]

         Under a pretext claim, Plaintiff must show that race was a “determinative” factor in the employment decision.[14] Specifically, Plaintiff must show that: (1) she is a member of a protected class; (2) she suffered an adverse employment action; (3) she was qualified for the position of full-time nurse; and (4) she was replaced by similarly qualified applicants not of the protected class.[15] Assuming that the adverse employment action was Plaintiff's change in employment status from full-time to pool employee and that she was qualified (based on her previous full-time experience), Plaintiff has failed to establish a prima facie pretext claim because she has presented no evidence that she was replaced by a similarly ...


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