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Doe v. Mercy Catholic Medical Center

United States District Court, E.D. Pennsylvania

July 17, 2019



          BAYLSON, J.

         In this case, we must determine whether genuine disputes of material fact preclude summary judgment on behalf of Defendant Mercy Catholic Medical Center. Plaintiff Jane Doe, a former medical resident in Defendant's radiology program, initiated this suit alleging that Defendant violated Title IX of the Education Amendments Act of 1972 (“Title IX”) by subjecting Plaintiff to quid pro quo sexual harassment and retaliating against Plaintiff when she complained about that harassment, including by terminating her residency.

         For reasons discussed below, summary judgment for Defendant is GRANTED.


         Plaintiff commenced this action on April 20, 2015. (ECF 1). The complaint was amended three times, (ECF 2, 16, 28), and the Third Amended Complaint, (ECF 28, “TAC”), asserted the following causes of action:

COUNT I: Sexual Harassment and Hostile Educational Environment in Violation of Title IX
COUNT II: Retaliation in Violation of Title IX
COUNT III: Quid Pro Quo Sexual Harassment in Violation of Title IX
COUNTS IV-VI: Breach of Contract in Violation of Pennsylvania law

         Defendant moved to dismiss on October 29, 2015, (ECF 32), and the Court then dismissed the TAC in its entirety on January 26, 2016. (ECF 44, 45). Defendant appealed that decision to the Third Circuit Court of Appeals on February 3, 2016, (ECF 46), and the Third Circuit affirmed in part, reversed in part, and remanded the case for further proceedings on March 7, 2017. See Doe v. Mercy Catholic Med. Ctr., 850 F.3d 545 (3d Cir. 2017).

         The Court then signed a stipulation by the parties withdrawing Plaintiff's state law claims without prejudice. (ECF 52). Pursuant to the Third Circuit's Opinion and that stipulation by the parties, the only causes of action that remain viable at this stage of the litigation are Counts II and III.[1]

         Defendant filed an Answer with Affirmative Defenses on April 11, 2018, (ECF 64), and, after discovery, filed its Motion for Summary Judgment on February 28, 2019. (ECF 100, “Motion” or “Mot.”). The Motion included Defendant's Statement of Undisputed Material Facts. (ECF 100-1, “SUMF”). Plaintiff responded on March 22, 2019, (ECF 110), but failed to comply with the requirements of Federal Rule of Civil Procedure 56 and this Court's practice rules. Pursuant to an Order by the Court, Plaintiff filed her compliant Opposition on April 11, 2019. (ECF 116, “Opposition”). The Opposition included an unsworn Declaration of Jane Doe, (ECF 116-1), Plaintiff's own Statement of Undisputed Material Facts (ECF 116-2, “Pl.'s SUMF”), and Plaintiff's Response to Defendant's Statement of Undisputed Material Facts (ECF 116-3, “Resp. to SUMF”). Defendant replied on April 18, 2019 (ECF 118), and also filed a Response to Plaintiff's Statement of Undisputed Material Facts (ECF 119, “Resp. to Pl.'s SUMF”). Plaintiff then filed a Sur-Reply with leave of Court on April 29, 2019. (ECF 124, “Sur-Reply”). Plaintiff also filed a second, unsigned version of her declaration, which included citations to the record or Defendant's alleged concessions for each statement made. (ECF 124-1). There were some differences between the substance of the two versions of Plaintiff's declaration. (Compare ECF 116-1 ¶¶ 79-106, with ECF 124-1 ¶¶ 79-102). Defendant moved for leave to file a Sur-Sur-Reply on May 3, 2019. (ECF 125). The Court has denied that request.

         The Court held oral argument on the Motion on June 26, 2019. At oral argument, Plaintiff was unable to identify any precedential case law allowing this Court to consider an unsworn declaration as part of the factual record on summary judgment. See United States ex rel. Doe v. Heart Solution, PC, 923 F.3d 308, 315 (3d Cir. 2019) (concluding that a party's statement that was both unsworn and not given under penalty of perjury was “insufficient to create an issue of fact on summary judgment”). Plaintiff also discovered at oral argument that several documents she relied on in her Response to Defendant's Statement of Undisputed Material Facts were never entered into the record before this Court. Although the Court agreed with Defendant that Plaintiff had several opportunities to submit these documents while briefing her Opposition to Defendant's Motion, the Court nonetheless deemed their omission to be a clerical error and allowed Plaintiff to submit them into the record at that time. The documents that Plaintiff submitted bore the Bates numbers MCMC 247, 248, 252, 253, and 254.

         Following oral argument, Plaintiff moved for leave to correct her declaration to include the language required by 28 U.S.C. § 1746 that her statements were made “under penalty of perjury.” (ECF 131 at Ex. A, “Declaration”). The Declaration is otherwise identical to the version Plaintiff initially filed with her Opposition, (see ECF 116-1), with the exception that it is unsigned. Defendant opposed that motion on July 2, 2019, (ECF 133), and Plaintiff replied in support on July 8, 2019. (ECF 134). Despite Plaintiff's repeated and inexcusable failure to comply with Federal Rule of Civil Procedure 56, we have allowed Plaintiff to amend her Declaration to include the statutorily-required language. Because Plaintiff has now filed three versions of her Declaration, the references in this Memorandum Opinion to Plaintiff's Declaration refer to the most recently-filed Declaration, (ECF 131 at Ex. A), which includes the language required by 28 U.S.C. § 1746.[2]


         The following is a fair account of the factual assertions at issue in this case, as taken from both parties' Statements of Fact and not genuinely disputed.[3]

         A. Background on Plaintiff and Roe

         Plaintiff commenced her medical residency with Defendant's Diagnostic Radiology Residency Program on July 15, 2011. (SUMF ¶ 1). James Roe, MD, was the Program Director. (Id. ¶ 2).

         Plaintiff testified at her deposition that Roe began making sexual advances towards her “as soon as [she] started the residency, ” by “constantly following” Plaintiff and “chasing [her] everywhere in the residency.” (Id. ¶ 9). She also testified that Roe held her hand twice at the beginning of her residency, and that she responded by pulling her hand away and leaving the room. (Id. ¶ 11). Plaintiff testified that she noticed Roe become erect sometime in 2011 while he was reading radiology studies with her, though he did not make any advances towards her at that time. (Id. ¶ 12). She also testified that, at some unspecified time, Roe told her that he loved her and that he told her two months into her residency that he would “do everything to be with [her].” (Id. ¶¶ 13-14). Plaintiff testified that at unspecified times, Roe invited her on various trips with him, including to the opera, the Pocono Mountains, and to go shooting together. (Id. ¶¶ 15, 17, 20). She also testified that Roe asked Plaintiff to move to Michigan with him, told Plaintiff he wanted to have children with her, and asked her what kind of wedding ring she would want from him. (Id. ¶¶ 16-18). Plaintiff claims that Roe subjected her to “physical sexual abuse, ” including “heavy touching and other stuff.” (Id. ¶ 21). Specifically, she testified that Roe touched her breast once, sometime after February 25, 2013. (Id. ¶ 24). Plaintiff also testified that, at some point, she had “some feeling” for Roe. (Id. ¶ 34).

         Although she says that she told him to “stop the harassment every day during [her] residency, ” Plaintiff testified that she did not complain to Roe himself before April or May of 2012 (at least nine months into the residency). (Id. ¶ 26). Plaintiff also contends that she told Meggan Drake, the Residency Program Coordinator (id. ¶ 8), about Roe's sexual advances from the beginning of her residency, although she cannot specifically identify when she made those reports. (Id. ¶¶ 28-29). She testified she also complained about Roe's conduct to David Mayer, MD, Chair of the Radiology Department (id. ¶ 4), in 2012, but does not recall the specifics of that complaint. (Id. ¶ 30). Plaintiff has not produced any testimony by Mayer.

         Defendant largely contests that the above facts are true, but admits that Plaintiff testified as such.

         A. Documented Communications Between Plaintiff and Roe and Follow-Up

         On October 6, 2011, Plaintiff sent an email to Roe stating: “[e]verbody, [sic] incuding [sic] the attendings and residents, is getting the feeling that there is something between us. I do not think we are able to hide it anymore. This may create a big problem soon, we have to do something.” (Id. ¶ 31). Roe testified that he thought the email was a joke and he reported it to Drake, who then set up a meeting with the two. (Id. ¶¶ 32, 35-36). Plaintiff explained that she sent the email because she did not want rumors going around that could hurt her residency. (Id. ¶ 39). Plaintiff admits that when she was asked if Roe or any other members of the Radiology Department made any inappropriate comments to her, she answered “no.” (Id. ¶ 42). Plaintiff ultimately apologized to Roe for sending the email. (Id. ¶ 43).

         Roe then had a follow-up meeting with Drake; Arnold Eiser, MD, Vice-President of Medical Education (Id. ¶ 5); and Pamela Fierro, Administrative Director of Graduate Medical Education (id. ¶ 6). (Id. ¶ 45). When asked, Roe reported that there was nothing going on between himself and Plaintiff. (Id. ¶ 46). Fierro, Drake, and Eiser thus believed that Plaintiff “imagined the issue.” (Id.).

         In November 2011, Plaintiff sent Roe the following text messages while the two were in Chicago at a conference:

• November 27, 2011: “Would you like to meet me at my motel?”
• November 29, 2011: “I do understand, I will support and follow you. But [I] will just wait for 3 years. At the end of 3 years, you will see . . .”
• November 30, 2011: “If you want to punish me for loving you, do it, it can not hurt more after seeing your eyes.”
• November 30, 2011: “I am humiliated enough for being an unwanted position and will never be there again.”

(Id. ¶¶ 48-49). She admitted that she had romantic feelings for Roe at the time she sent those messages. (Id. ¶ 51).[4] On November 27, 2011, Roe reported the first of these messages to Eiser. (SUMF ¶ 53). After consultation among Roe, Eiser, and the Chief Medical Officers at Mercy Philadelphia Hospital and Mercy Fitzgerald Hospital, Fierro was directed to forward the text messages and October 6, 2011 email to Defendant's Human Resources Department. (Id. ¶ 56). Roe then met with John Cigler, Director of Human Resources, and Catherine Byrne, Chief Human Resources Officer. (Id. ¶ 57). When asked if there was an inappropriate relationship between Plaintiff and Roe, he responded “no.” (Id. ¶ 58).

         Plaintiff met with Cigler and Byrne on December 7, 2011. (Id. ¶ 60). She told them that Roe's “sexual advances w[ere] creating an unhelpful environment for [her] training.” (Id. ¶ 63).

         Following the December 7, 2011 meeting with Human Resources, Plaintiff was referred to Carebridge, Defendant's Employee Assistance Program (“EAP”), through which she met with a doctor three times. (Id. ¶¶ 67-68). The topics discussed at the sessions were confidential. (Id. ¶ 75). Roe did not receive any reports regarding Plaintiff's participation in EAP (id. ¶ 77), and Cigler merely received a report that Plaintiff “completed all scheduled sessions and has stated her commitment to honor the professional standards required by the residency program.” (Id. ¶ 76).

         From December 2011 until approximately February 2013, Plaintiff was scheduled to work with Stanley Chan, MD, Associate Program Director, rather than with Roe. (Id. ¶ 78). During that time, Plaintiff testified that she complained to Chan “a lot, ” but provided no further specifics. (Id. ¶ 79).

         B. Plaintiff's Performance During Her Residency

         Chan testified that Plaintiff had several performance issues that negatively affected her residency. For example, he noted that Plaintiff's imaging reports contained typographical errors and required editing by attending physicians. (Id. ¶ 80). Chan further testified that attending physicians complained that Plaintiff's reports did not incorporate feedback they had previously given her, and that Plaintiff generally was opposed to receiving negative feedback. (Id. ¶¶ 81, 84- 87). Chan noted that, ten months into her residency, Plaintiff became disruptive and interruptive during teaching conferences. (Id. ¶ 83).[5]

         A six-month evaluation of Plaintiff's performance dated March 8, 2012 rated Plaintiff as “[e]xcellent” in the majority of categories for which she was evaluated. (Pl.'s SUMF ¶ 62; Resp. to Pl.'s SUMF ¶ 62; Pl.'s Ex. B at MCMC 255-56). The March 8, 2012 evaluation also rated Plaintiff as “[a]dequate” in “Documentation Compliance” and noted that Plaintiff “will work on ...

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