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Macknet v. University of Pennsylvania

United States District Court, E.D. Pennsylvania

September 14, 2017

PAMELA MACKNET
v.
UNIVERSITY OF PENNSYLVANIA

          MEMORANDUM RE: DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

          BAYLSON, J

         In this age discrimination case, Plaintiff Pamela Macknet alleges that Defendant the Trustees of the University of Pennsylvania retaliated against her in violation of the Age Discrimination in Employment Act (“ADEA”), the Americans with Disabilities Act (“ADA”) and the Pennsylvania Human Relations Act (“PHRA”). Defendant moves for summary judgment on all three claims. For the reasons outlined below, we agree with Defendant that Macknet has failed to show a genuine issue of material fact as to any claim and that summary judgment is warranted.

         I. Facts

         The following facts are taken from Defendant's Statement of Facts and are undisputed by Macknet. Macknet began working for Defendant on May 9, 2005, when she was hired as an Administrative Assistant at Defendant's Perelman Center for Advanced Medicine. (ECF 31, Def.'s Mot., Def.'s Statement of Facts (“DSOF”) ¶ 17.) Throughout her tenure in Defendant's employ, Macknet worked in the Hematology/Oncology (“Hem/Onc”) Department, supporting different doctors at various times. (Id., DSOF ¶ 18.) Macknet initially supported Dr. Susan Domcheck and continued to do so until sometime after 2010. (Id., DSOF ¶¶ 19, 21, Ex. B (Dep. Tr. of Macknet at 44.) Macknet had significant issues completing her work in a timely fashion for Dr. Domcheck, and received negative feedback from the doctor on several occasions. (Id., DSOF ¶ 20, Ex. B at Macknet-5.) At the time of Macknet's termination, she was supporting Drs. Bruce Giantonio and Charu Aggarwal. (Id., DSOF ¶ 22.) As a result of deficiencies in Macknet's patient care and administrative tasks, particularly concerning the work she performed for Dr. Aggarwal, she was issued an oral warning on January 25, 2012. (Id., DSOF ¶ 23, Ex. B at Macknet-6.) That warning was issued pursuant to Defendant's Performance Improvement/Disciplinary Policy (“Discipline Policy”), which provides that an oral warning is the initial step in Defendant's progressive discipline framework. (Id., DSOF ¶ 24.) It was the first in a series of disciplinary actions taken against Macknet throughout 2012, 2013, and 2014. (Id., DSOF ¶¶ 25-31.) During this time period, she also received poor annual performance reviews. (Id., DSOF ¶¶ 25, 28.)

         On September 11, 2013, Macknet was issued a written warning, the next step after an oral warning under the Discipline Policy, for entering incorrect prescription information into a patient's chart and for violating the Health Insurance Portability and Accountability Act (“HIPAA”) by leaving a patient's test results on the voicemail of another person. (Id., DSOF ¶¶ 31-33.) On March 14, 2014, Defendant placed Macknet on probation, the final step prior to termination pursuant to the Discipline Policy. (Id., DSOF ¶ 34, Ex. B at Macknet-13.) The probationary letter warned that Macknet's “[f]ailure to consistently meet all of the performance expectations for [her] position during or after this probationary period may result in the immediate termination of [her] employment with [Defendant].” (Id., Ex. B at Macknet-13 (emphasis added).) That same language is contained within Defendant's Discipline Policy. (Id., Ex. B at Macknet-4.) Shortly after receiving the notice of probation, on April 15, 2014, Macknet filed a Charge of Discrimination with the EEOC. (Id., DSOF ¶ 39.) The EEOC then issued a Right to Sue Letter (“2014 Right to Sue”) on September 10, 2014 stating that Macknet must initiate any lawsuit arising from the facts alleged in her Charge within 90 days of her receipt of the letter. (Id., DSOF ¶¶ 8, 12.) Macknet does not know when she received the letter. (Id., DSOF ¶ 9.)

         Macknet's next work-related infraction occurred on November 25, 2014, when she sent confidential patient information to the wrong patient via email, thereby violating both HIPAA and Defendant's internal policies. (Id., DSOF ¶ 41.) A few days later, on December 1, 2014, that email was forwarded to Michelle Hackett, a Human Resources Administrator, due to the HIPAA violation. (Id., DSOF ¶ 44.) Ms. Hackett consulted with Amanda Smith, Macknet's direct supervisor, and Helen Sivieri, Macknet's second-level supervisor, and on December 10, 2014, Macknet's employment with Defendant was terminated. (Id., DSOF ¶¶ 47, 49.) The ultimate decision to terminate was reached by Ms. Sivieri following her discussion with Ms. Hackett and Ms. Smith. (Id., DSOF ¶¶ 49, 52.) At the time of Macknet's firing, neither Ms. Sivieri nor Ms. Smith knew that Macknet had filed an EEOC Charge in April 2014 or were aware of the existence of the 2014 Right to Sue. (Id., DSOF ¶¶ 53-56.) Ms. Hackett, in contrast, was aware that Macknet had filed the Charge, but neither knew about nor had seen the 2014 Right to Sue at the time of the decision to terminate. (Id., DSOF ¶ 57.)

         Macknet filed a second EEOC Charge of Discrimination on December 18, 2014 in which she alleged the retaliation claims that are the basis of this lawsuit. (Id., DSOF ¶¶ 59-60.)

         II. Procedural Background

         On September 24, 2015, Macknet filed a complaint alleging retaliation in violation of the ADEA, ADA, and PHRA (ECF 1). Defendant answered the Complaint on October 26, 2015 (ECF 4), and, after fact discovery and associated motion practice, filed for summary judgment on February 7, 2017 (ECF 31). Macknet responded on March 21, 2017 (ECF 36), and Defendant replied on March 28, 2017 (ECF 38). On September 11, 2017, the Court held a telephone conference with counsel at which counsel was given the opportunity to respond to the Court's questions regarding various issues dispositive to this motion. (ECF 42.)

         III. Legal Standard

         A district court should grant a motion for summary judgment if the movant can show “that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). A dispute is “genuine” if “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A factual dispute is “material” if it “might affect the outcome of the suit under the governing law.” Id.

         A party seeking summary judgment always bears the initial responsibility for informing the district court of the basis for its motion and identifying those portions of the record that it believes demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Where the non-moving party bears the burden of proof on a particular issue at trial, the moving party's initial burden can be met simply by “pointing out to the district court . . . that there is an absence of evidence to support the nonmoving party's case.” Id. at 325. After the moving party has met its initial burden, the adverse party's response must, “by citing to particular parts of materials in the record” set out specific facts showing a genuine issue for trial. Fed.R.Civ.P. 56(c)(1)(A). “Speculation and conclusory allegations do not satisfy [the non-moving party's] duty.” Ridgewood Bd. of Educ. V. N.E. ex rel. M.E., 172 F.3d 238, 252 (3d Cir. 1999) (superseded by statute on other grounds as recognized by P.P. v. West Chester Area Sch. Dist., 585 F.3d 727, 730 (3d Cir. 2009)). Summary judgment is appropriate if the non-moving party fails to rebut by making a factual showing “that a genuine issue of material fact exists and that a reasonable factfinder could rule in its favor.” Id. Under Rule 56, the Court must view the evidence presented on the motion in the light most favorable to the opposing party. Anderson, 477 U.S. at 255.

         IV. Analysis

         Macknet brings claims against Defendant under three statutes: the ADEA, the ADA, and the PHRA, each of which “contain nearly identical anti-retaliation provisions that prohibit discrimination against any individual because ‘such individual' has engaged in protected activity.” Fogelman v. Mercy Hosp., Inc., 283 F.3d 561, 564 (3d Cir. 2002). The Third Circuit has held that the statutes are to be interpreted identically, “except where there is something specifically different in its language requiring that it be treated differently.” Id. at 567.

         To establish a prima facie case of retaliation, Macknet must show that: (1) she engaged in a protected activity; (2) her employer took an adverse action either subsequent to or contemporaneous with her protected activity; and (3) a causal connection exists between the protected activity and the adverse action. Marra v. Phila. Hous. Auth., 497 F.3d 286, 300 (3d Cir. 2007). Where, as here, a plaintiff lacks direct evidence of retaliation, the claim proceeds under the McDonnell Douglas burden-shifting framework which provides that once the plaintiff establishes her prima facie case, the burden shifts to the employer to provide a legitimate reason for its conduct. Carvalho-Grevious v. Del. State Univ., 851 F.3d 249, 257 (3d Cir. 2017). If the employer is able to do so, the burden then shifts back to the plaintiff “to convince the factfinder both that the employer's proffered explanation was false, and that retaliation was the real reason for the adverse employment action.” Moore v. City of Phila., 461 F.3d 331, 342 (3d Cir. 2006) (quoting Krouse v. Am. Sterilizer Co., 126 F.3d 494, 500-01 (3d Cir. 1997)).

         Here, it is undisputed that Macknet satisfies the first two prongs of the prima facie test- her filing an EEOC Charge of Discrimination is a “protected activity, ” and her termination an “adverse action.” Therefore, our analysis focuses on whether Macknet has adequately shown causation, both at the prima facie stage and at the pretext stage. See Carvalho-Grevious, 851 F.3d at 257 (stating that “[t]he onus is on the plaintiff to establish causation at two stages of the case: initially, to demonstrate a causal connection as part of the prima facie case, and at the final stage of the McDonnell Douglas framework to satisfy her ultimate burden of persuasion by proving pretext”).

         A. Causal Connection Between EEOC Charge of Discrimination and Termination

         The Third Circuit recently clarified the standard a plaintiff must meet to establish causation at the prima facie stage, holding that she “must produce evidence ‘sufficient to raise the inference that her protected activity was the likely reason for the adverse [employment] action.'” Carvalho-Grevious, 851 F.3d at 259 (quoting Kachmar v. SunGard Data Sys., Inc., 109 F.3d 173, 177 (3d Cir. 1997)) (emphasis omitted). There are three main avenues for establishing the requisite causal link: (1) temporal proximity between the protected activity and the adverse action; (2) a pattern of antagonism coupled with timing; or (3) where the trier of fact can infer causation from the record as a whole. Lauren W. v. DeFlaminis, 480 F.3d 259, 267 (3d Cir. 2007).

         i. ...


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