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DeCicco v. Mid-Atlantic Healthcare, LLC

United States District Court, E.D. Pennsylvania

July 27, 2017

LOUIS DeCICCO, Plaintiff,


          Goldberg, J.

         This is an employment discrimination case. Plaintiff, Louis DeCicco, alleges that Defendant, Mid-Atlantic Healthcare, LLC, terminated his employment in violation of the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 621, et seq., the Family and Medical Leave Act (“FMLA”), 29 U.S.C. § 2601, et seq., and the Pennsylvania Human Relations Act (“PHRA”), 43 P.S. § 951 et seq. Presently before me is Mid-Atlantic's motion for summary judgment. For the reasons that follow, the motion will be granted as to Plaintiff's age discrimination claims and request for punitive damages, but denied as to his FMLA claims.


         The following facts are undisputed, unless otherwise noted:

         On April 18, 2011, Plaintiff began working for Maplewood Nursing and Rehabilitation Center (“Maplewood”). Maplewood provides long-term nursing care and rehabilitation services.

         Plaintiff was hired as the Director of Maintenance, and was responsible for, inter alia, upkeep and maintenance of the facility, maintaining contracted services, maintaining acceptable building standards, oversight of certain personnel, and coordinating with other departments during large scale renovation projects. (Def.'s Statement of Facts (“SOF”) ¶¶ 1-3, 7, 11, 28-29.)[2]

         On or about January 24, 2012, Plaintiff met with his direct supervisor, Sarah Balmer, who held the position of Nursing Home Administrator. The parties do not dispute that Balmer issued a “performance action plan” during this meeting, which contained an “improvement plan” setting forth certain performance goals and expectations for Plaintiff. The performance action plan documented several areas in which Plaintiff's job performance was “under review, ” including: not providing adequate training and mentoring to a subordinate; not resolving “longstanding issues” with Maplewood's security staff; failing to respond to facility phone calls; and, not taking a more active role in resolving the facility's maintenance issues. Plaintiff and Balmer both signed the action plan. (Def.'s SOF ¶¶ 31, 33, 37; Def.'s Ex. J.)

         Around this same time (January 2012), Plaintiff began monitoring Balmer's attendance at work. During his “investigation, ” Plaintiff reviewed Maplewood's camera footage, Balmer's timesheets, and he prepared his own logs of Balmer's absences from the Maplewood facility. Plaintiff was not authorized to investigate Balmer's attendance. (Def.'s SOF ¶¶ 54-56; Pl.'s Dep. 177:13- 20.)

         On May 9, 2012, Balmer issued a second performance action plan to Plaintiff. On the same day, Plaintiff received a written warning for allegedly addressing an outside contractor in an “unprofessional manner.” He also received an oral warning on this date for allegedly not keeping “adequate stock” of Maplewood's equipment, which resulted in the facility being “short one bed.” (Def.'s SOF ¶¶ 37, 44; Def.'s Exs. L, M.)

         On May 24, 2012, Plaintiff requested “FMLA paperwork” from Maplewood's Human Resources Director, Stephanie Massey. Plaintiff was the primary caregiver to his disabled father, and testified that he intended to use FMLA leave to care for him. Massey provided the paperwork to Plaintiff that same day. Stephanie Massey was terminated by Mid-Atlantic shortly after this interaction with Plaintiff. (Pl.'s Dep. 180:20-25; 181:1-11; 188:1-12.)

         On June 15, 2012, Plaintiff met with newly-hired Human Resources Director, Caroline Eldridge. The two met for approximately two hours and discussed several issues, including: Plaintiff's performance action/improvement plans, the “fraud” involving Sarah Balmer's alleged absenteeism, and other issues such as Plaintiff's perceived lack of support from Mid-Atlantic. Plaintiff testified that he was “afraid” to turn in his completed FMLA paperwork for fear of termination, and that he advised Eldridge that he expected to be terminated. (Pl.'s Dep. 188:13- 20; 204:12-25; 207:12-22; 208:1; 209:8-16.)

         On June 18, 2012, Plaintiff returned his “Certification of Health Care Provider” form [i.e., his completed FMLA paperwork] to Mid-Atlantic's Human Resources department. (Pl.'s Dep. 189:11-20; Def.'s Ex. N.) According to Plaintiff, he had originally intended to turn in his paperwork to Stephanie Massey. However, by that point, she no longer worked for Mid-Atlantic. Plaintiff decided to submit his FMLA paperwork to Caroline Eldridge. When he knocked on her office door to give her the papers, he testified that Jennifer Kelly (Regional Human Resources Director) answered and indicated that she and Eldridge were in a meeting. Plaintiff claims that he handed his paperwork to Jennifer Kelly and she closed the door. (Pl.'s Dep. 188:1-12.)

         Later that same evening (June 18, 2012), at 9:51 p.m., Sarah Balmer emailed John Fredericks (Regional Director of Operations) stating that she intended to terminate Plaintiff in two weeks. Balmer indicated that three other Mid-Atlantic employees, all of whom were copied on the email (including Jennifer Kelly), were “all in agreement in this decision.” Balmer advised the group that she became aware Plaintiff was monitoring her attendance and hours logged at work and had been reviewing Maplewood's security camera footage. She further stated that Plaintiff was “not the type of person” she wanted working for her, that Plaintiff had been on a performance improvement plan since January 2012 due to “HR issues, ” that she could not work “with someone like him and want[ed] him gone, ” and that his statements that Balmer “stole time” were “a lie.” Balmer concluded her email by stating that “[d]ue to [Plaintiff's] deficiencies, he will be terminated in the proper fashion. I just wanted you all to know how inappropriate his behavior is.” (Pl.'s Ex. S.)

         On June 19, 2012, the next day, Balmer issued a “final written warning” to Plaintiff regarding his alleged failure to meet the requirements of his prior performance action plans, and placed him on yet another performance action plan, which was set to expire on July 3, 2012. (Def.'s Exs. O, P.)

         On June 20, 2012, Plaintiff was terminated during a meeting conducted by John Fredericks and Jennifer Kelly. Sarah Balmer was not present during this meeting. (Def.'s Ex. R.) Plaintiff was forty-seven (47) years-old at the time of his firing. Plaintiff was replaced by a man named Robert Mitchell. The parties dispute whether Mitchell was forty-one (41) or forty-three (43) years-old at the time of his hiring.

         On May 22, 2014, Plaintiff filed this lawsuit, advancing claims for age discrimination under the ADEA and PHRA (Counts I & III), as well as claims for interference and retaliation under the FMLA (Count II).


         A party moving for summary judgment bears the initial burden of demonstrating that there are no genuine issues of material fact in dispute, and that judgment is appropriate as a matter of law. Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once a properly supported motion for summary judgment has been made, the burden shifts to the non-moving party, who must set forth specific facts showing that there is a genuine issue of material fact for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986).

         An issue is “genuine” if a reasonable jury could rule in favor of the non-moving party based on the evidence presented. Kaucher v. Cnty. of Bucks, 455 F.3d 418, 423 (3d Cir. 2006). A factual dispute is “material” if it might affect the outcome of the suit under the appropriate governing law. Id. at 423. The non-moving party cannot avert summary judgment with speculation or conclusory allegations, but rather must cite to the record. Ridgewood Bd. of Educ. v. N.E. for M.E., 172 F.3d 238, 252 (3d Cir. 1999); Fed.R.Civ.P. 56(c). On a motion for summary judgment, the court considers the evidence in the light most favorable to the non-moving party. Anderson, 477 U.S. at 256.

         III. ANALYSIS

         A. Plaintiff's Age Discrimination Claims

         The ADEA states that it shall be unlawful for an employer “to fail or refuse to hire or to discharge any individual or otherwise 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).[3] The phrase “because of” signifies that age must be more than a “motivating factor” in the employer's action and, therefore, “mixed motive” claims under Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) are unavailable. Gross v. FBL Fin. Services, Inc., 557 U.S. 167, 175-80 (2009). As such, to establish a disparate-treatment claim under the ADEA, “a plaintiff must prove that age was the ‘but-for' cause of the employer's adverse decision.” Id. at 177-78; Tomasso v. Boeing Co., 445 F.3d 702, 704-05 (3d Cir. 2006). Where, as with the case before me, a plaintiff has not produced direct evidence that age was the cause of his employer's course of action, the familiar burden-shifting analysis of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) applies. Smith v. City of Allentown, 589 F.3d 684, 690-92 (3d Cir. 2009).

         Under the McDonnell Douglas framework, an employee must first establish a prima facie case of discrimination. Burton v. Teleflex Inc., 707 F.3d 417, 426 (3d Cir. 2013). Once a plaintiff establishes his prima facie case, the burden of production then shifts to the defendant to articulate a “legitimate, non-discriminatory reason” for the adverse employment action. Id. If the employer offers a facially legitimate, non-discriminatory reason for its decision, the burden of production shifts back to the plaintiff to “provide evidence from which a factfinder could reasonably infer that the employer's proffered justification is merely a pretext for discrimination.” Id. at 426. “At all times, however, the burden of persuasion rests with the plaintiff.” Smith, 589 F.3d at 690.

         1. Plaintiff's Prima Facie Case

         A plaintiff establishes a prima facie case of age discrimination by demonstrating that “(1) [he] is forty years of age or older; (2) the defendant took an adverse employment action against him; (3) [he] was qualified for the position in question; and (4) [he] was ultimately replaced by another employee who was sufficiently younger to support an inference of discriminatory animus.” Burton, 707 F.3d at 426.

         Here, Mid-Atlantic does not dispute that Plaintiff is over the age of 40, that he was qualified for the position of Director of Maintenance, or that he was subject to an adverse employment action. (Def.'s Mot. Summ. J. 5.) It is the fourth element-replacement by a “sufficiently younger” employee-that Mid-Atlantic argues Plaintiff cannot establish as a matter of law. (Id.)

         With respect to what age differential will be considered sufficient as a matter of law (i.e., sufficiently younger), the United States Court of Appeals for the Third Circuit has stated that “there is no particular age difference that must be shown, but while different courts have held ... that a five year difference can be sufficient, ... a one year difference cannot.” Showalte ...

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