United States District Court, E.D. Pennsylvania
MEMORANDUM RE: DEFENDANT'S MOTION FOR SUMMARY
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
reasons discussed below, summary judgment for Defendant is
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
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).
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
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.
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.
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.
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.
Background on Plaintiff and Roe
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).
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).
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.
largely contests that the above facts are true, but admits
that Plaintiff testified as such.
Documented Communications Between Plaintiff and Roe and
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).
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.).
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
• 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
• November 30, 2011: “I am humiliated enough for
being an unwanted position and will never be there
(Id. ¶¶ 48-49). She admitted that she had
romantic feelings for Roe at the time she sent those
messages. (Id. ¶ 51). 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).
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).
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.
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).
Plaintiff's Performance During Her Residency
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).
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 ...